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N. Y. Superior Court.--Bennett y. Williamson, etc. The only point which admits of argument is the alleged want of certainty and particularity.
But the plea, by reference to the alleged libel, puts in issue all the facts stated in such alleged libel, and is of the same legal import and effect as if, with useless tautology and verbiage, it repeated them in totidem verbis : neither the plaintiff nor the court could have been in doubt of the particular facts set up by the plea, if the plaintiff had joined issue upon it. That is certain, which can be ascertained by reference to other parts of the record that are referred to for the purpose. Id certum est quod certum reddi potest. Verba relata inesse videntur. 1 Chitty's Pl. 570, (6 Am. ed.) Bro. action sur case, 27, H. 8, 22, pl. 3. 1 Roll. Ab. 87.
This case is distinguishable from one, where the alleged libel consists of a general charge, or general abuse, and the plea merely affirms generally, that such libel is true. In this case, the alleged libel is a statement of facts, with as much particularity and certainty as would be necessary in a plea of justification. The plea is virtually the reiteration of these facts. An averment is not required to be in any particular form. The plea, therefore, is positive and certain.
The objection to it is one of mere form ; it is not meritorious, and is opposed to the whole policy and spirit of our laws; and is entitled to no favor.
The form of the plea is one which has been used in other cases without objection; is convenient and brief, and affords every needful information and protection to the plaintiff. Weaver v. Lloyd, 2 B. & C. 678.
Secondly. There should be judgment for the defendant on the demurrer to the third plea.
1. The reasons and authorities adduced on the first point, (heads I., II.,) are applicable to this point.
II. If the plaintiff has sustained no damage, he has no cause of action.
This defence may be set up specially by plea in bar. Starkie on Slander, 334, (1 Am. ed.)
It is not necessary to set forth the circumstances from which the fact may be inferred, especially as it is a negative plea.
The fact itself should be alleged in pleading; the particular circumstances to prove it, are required to be given in evidence, not pleaded. Church v. Gilman, 15 Wend. R. 565, 665; Daniels v. Hallenbeck, 19 Wend. R. 410, 411.
Thirdly. No objection for duplicity can be urged against either of these pleas, as the plaintiff has not assigned it as a cause of demurrer. Hancocke v. Prowd, 1 Saund. 337, b. (n. 3.); Chitty on Pl. 261, (6 Am. ed.); Gould v. Ray, 13 Wend. R. 637.
Fourthly. The declaration shows no cause of action.
The alleged publication is not libellous or actionable. Goldstein v. Foss, 4 Bing. R. 439.
No special damage is alleged.
N. Y. Superior Court.-Bennett v. Williamson, etc.
It is not a libel of the plaintiff in any trade or profession. Gilbert v. Field, 3 Caines' R. 329; Van Tassel v. Capron, 1 Denio R. 250; Oakley v. Farrington, 1 J. C. 129.
It contains no statements which are per se libellous. Tappan v. Wilson, 7 Ham. Ohio R. 190; State v. Farley, 4 McCord's R. 317.
There is no averment of special damage. 1 Saund, 243, b. (n. 5.)
The inuendos cannot enlarge the meaning of the words. Rex v. Alderton, Sayer's R. 280; I Saund. 243, (n. 4.); Goldstein v. Foss. 4 Bing. R. 489.
They are not traversable or the subject of proof. It is for the court to say whether they are warranted by the words themselves. Commonwealth v. Snelling, 15 Pick. R. 335; Van Vechten v. Hopkins, 5 J. R. 226; The State v. Henderson, 1 Richardson's Rep. 179, 186 ; Goldstein v. Foss, 4 Bing. R. 489.
The case of Stone v. Cooper, 2 Denio's R. 293, is decisive on all all these points.
Fifthly. For these reasons there should be judgment for the defendants.
By the Court. CAMPBELL J.-This action was brought by the plaintiff to recover damages against the defendants for a libel published by them in a newspaper called the “Sunday Dispatch," in January, 1848, which was as follows:
“ Sometime about the year 1834 there was a sunday paper in this city, termed the “Sunday Courier,” which was started' by John Tryon. This establishment Tryon sold to Bennett, who gave his note for the purchase money, and which note Tryon paid away, without recourse to himself. The man who took the note, was at that time well off ; the money was of no consequence to him, and Bennett got possession of the types, press &c., but he not having the ability to make a Sunday paper go, it died off. When the note became due, Bennett could not pay and begged the holder of the note to wait. The man did wait, and some years after Bennett having got on, the note was sued, but Bennett pleaded the statute of limitations and got off scot free."
There are several counts in the plaintiff's declaration with different inuendoes, in which, averring among other things that the defendants meant and intended it to be understood that the plaintiff " first dishonestly delayed, and afterwards refused to pay, &c. ;" also that he was " poor and without money, and unable to pay his debts,” also that he by humble solicitations obtained further time for the payment of his said supposed note, which time he afterwards artfully contrived and successfully used as grounds for resisting the payment of the said supposed note," also that the defendants thereby intended to insinuate and cause it to be believed “that the plaintiff had been guilty of swindling and cheating the holder of the said supposed note out of its supposed value, and that he was a cheat and a swindler, and that they thus “ intended to and did hold the plaintiff up to ridicule, contempt and infamy, &c.” There is no averment that the plainN. Y. Superior Court.-Bennett v. Williamson, etc. tiff has sustained any special damage. The defendants plead first not guilty; second that the said supposed libels were not, nor was either of them, published maliciously or falsely, but the same are true in substance and fact: and third, that they were not published maliciously, and that the plaintiff hath not suffered any damage whatever. The plaintiffs demurred specially to 1st, 2d and 3d pleas.
We were all of opinion upon the argument of this cause, that the second plea was good ; That the plaintiff, having set forth fully the whole of the supposed libel, it was sufficient for the defendants to plead that the same was true in substance and fact. We were also of opinion that the third plea, which alleges that the supposed libel was not published maliciously, and that the plaintiff has suffered no damage, was bad, and that upon the demurrer to that plea the plaintiff was entitled to judgment. But the more serious question raised by the defendants on the argument, and presented by them for our consideration with great earnestness, is whether this publication is or is not libellous.
Our attention was called to the earlier periods in the history of the common law, when there was no distinction between written and spoken slander. But it may be remarked that libelling could not be the crime of an illiterate people, and in the former days of English jurisprudence, when few could read and write, it might well have been considered, that the poison if spoken would diffuse itself as generally as that of written slander. But it is now nearly two centuries since the distinction was taken, and the press then feeble, has now become powerful for good—and for evil, speaking as it does, almost instantaneously to a whole nation by its million tongues. It is too late to question the law, which has become well, and we think wisely, settled on both sides of the Atlantic, that aspersions of character which are not slanderous when merely spoken, become libellous when printed and published. It is not to be denied, that a practical difficulty has attended the application of any rule which seeks to prescribe what is or what is not libellous. Mr. Cook in his law of defamation, (37 Law Library, N. S. page 18,) considers that every publication may be tried by the rule laid down by Bayley Justice in McGregor v. Thwaites, 3 Barn. & Cress. 33. “That any writing is a libel, provided the tendency of it be to bring a man into hatred, contempt or ridicule." Chancellor Walworth in Cooper v. Stone, 2 Denio 299, says: “But to sustain a private action for the recovery of a compensation in damages for a false and unauthorized publication, the plaintiff in such action must either aver and prove that he has sustained some special damage from the publication of the matter charged against him, or the nature of the charge itself must be such that the court can legally presume he has been degraded in the estimation of his acquaintances or of the public, or has suffered some other loss, either in his property, character or business, or in his domestic or social relations, in consequence of the publication of such charges.” See Goodrich v. Davis, 11 Metcalf, 473, Parmiter v. Coopland, 6 Mees. & Wells. 105. We must lay out of view in this case all the authorities which support the
N. Y. Superior Court.-Bennett v. Williamson, etc.
doctrine that a man shall recover for special damages sustained by reason of a publication affecting his trade or profession, because there is no averment or pretence that the plaintiff has sustained any special damage in his business or in any other form, or that the article was written in reference to any occupation or calling in which he may be engaged. Then, does the publication in question charge the plaintiff with any offence which renders him amenable to punishment, or does it necessarily tend to hold him up to ridicule, hatred, contempt or infamy? It is no crime to interpose the statute of limitations as a defence to an action at law. On the contrary, it may under certain circumstances, be not only right, but meritorious, as where a defendant has actually paid the claim, but has lost the evilence of the payment ; or where in any action for damages the witnesses, by whom he might successfully have defeated a recovery, have died during the time that the commencement of the action has been delayed. It is a statute of repose, tending to quiet strife, and looking at the frailty of human memory and the natural destruction and loss of the evidences of transactions, presumes that obligations have been discharged which have not been recognized as binding for a term of years.
cannot therefore, see how it can be deemed libellous to charge a man with having plead the statute of limitations. The article alleged to be libellous was published in 1848. It refers to transactions which commenced in 1834; fourteen years previous. It states that in that year the plaintiff entered into a business operation ; that he purchased a newspaper establishment, and gave his note for it ; that he could not succeed and was unable to pay the note ; that he begged for delay; and that subsequently, when sued upon the note, he plead the statute of limitations successfully. There is no charge that he interposed the plea dishonestly. For aught that appears it may have been fairly and honorably interposed. There was abundance of time for him to have asked and obtained delay, to have afterwards paid the note; to have lost the evidence of such payment, and to have meritoriously pleaded the statute. The note was transferred without recourse, and for aught that appears, the plaintiff might have been misled and deceived by the person of whom he purchased the newspaper establishment, either as to its subscribers or income, by which he became poor and unable to pay his note; that such misrepresentation and deception on the part of the payee of the note, would not constitute a defence in the hands of a bona fide holder, and he interposed the statute as a legal bar to support an equitable defence. In short, we are unable to see that this publication imports any offence or that its necessary tendency is to expose the plaintiff to ridicule, hatred or contempt.
The law of libel ought to be considered, andisi n its spirit a benevolent and salutary provision for the peace and security of the community; but it cannot redress every injury sustained by a breach of morals, or of good manners. We may not approve of the taste of publications such as is set forth in the declaration in this case; we may lament the existence of a disposition to make private character too much the
N. Y. Superior Court.-Brown v. DeSelding. subject of comment and abuse; without having it in our power through the instrumentality of the law to arrest the evil. 'It is for another tribunal to dispose of such questions.
Upon the whole case therefore, there must be judgment for the defendants.
Rachael BROWN, Appellant, v. CHARLES DeSeLDING, Respondent.
EXECUTION OF A WILL.
It is not necessary in the execution of a will under the statute, that a testator should in terms
request the witnesses to attest the execution. The request may be implied as well as expressed. If the witnesses are sent for by the attendants of the testator in his presence and without objection—if upon their introduction he sets himself to the execution of the will, and delivers it when executed to the witnesses, in order that they may sign it, and they do sign it in his presence, he thereby adopts the acts of his friends and makes their request his request, within the spirit and meaning of the statute. No particular form of words is necessary in the publication of a will, in order to comply with
the statute. It is sufficient if the requisitions of the statute are complied with in substance. Where, however, the testatrix at the time of the execution of the alleged will merely asked
" where was the proper place for her to sign," the will not having been read to, or by her, before signing it, and nothing being said by her concerning its contents, nor any thing said or done by her in the presence and hearing of one of the attesting witnesses, by which she signified to him that the paper subscribed by her was her last will-Held, that the in
strument was not declared and published as a will within the statute. In order to the due execution of a will, there must be a declaration by the testator to each of
the attesting witnesses, that the instrument is his will. This was an appeal from a final decree of the Surrogate of the county of New-York, admitting to record and probate as a will of real and personal estate, an alleged will of Herriott Brown deceased, An appeal having been taken to the Supreme Court, the cause was transferred under the act to this court.
The facts of the case, as they appeared from the testimony, were as follows:
Miss Herriott Brown died in the city of Washington, D. C., on the first day of July, 1847, after an illness of eight days. She was about forty years of age. She was sick and signed her name to the instrument in question in this cause, and she died at the residence of Mr. and Mrs. Charles DeSelding, in the city of Washington. Her only heirs and next of kin, were Rachel Brown, the appellant, and Helen DeSelding, wife of Charles DeSelding, the respondent, her sisters. The execution of the
alleged will took place on one of the last days of June,” 1847. That instrument is drawn in favor of Julia DeSelding and Charles Edward F. G. DeSelding, minors, the children of Helen DeSelding, with an interest by way of remainder, to Mrs. DeSelding, in case of their death without issue, and appointing Mr. DeSelding executor. The attesting witnesses were William P. Johnston and Alexander N. Zevely, who were the only witnesses examined in the case, and were examined in Washington, under a commission issued by the Surrogate.
The witness Johnson, was the attending physician of the deceased