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Riggs v. Denniston.

*Riggs against DENNISTON.

(*198]

To charge a counsellor at law with offering himself as a witness, in order to

divuige the secrets of his client, is libellous; and it is not a sufficient justifi. cation, that he disclosed matters communicated to him by his client, which

had no relation or pertinency to the cause in which he was engaged. 'The secrets of his client, which the counsel is bound to keep, are the commu

nications and instructions of the client, relative to the management or de

fence of his cause. To charge a commissioner of bankruptcy with being a misanthropist, a parti

zan, stripping the unfortunate debtors of every cent, and then depriving them of the benefit of the act, &c. is libellous. And to make out a justifi. cation of the charge, the defendant must show that the plaintiff, as commis.

sioner, wilfully perverted the law to such oppressive purposes. Whether the law allows a justification of a libel which does not charge any

indictable offence ? quære.

This was an action for a libel. The case came before the court on demurrer to the pleas.

The following is a brief statement of the pleadings. The declaration contained three counts.

The first count stated, that the plaintiff was a counsellor at law, of this and other courts, and also a commissioner of bankruptcy, under the act of congress ; and that the defendant, maliciously intending to defame and injure him, as counsellor and commissioner, did, on the 20th April, 1901, falsely and maliciously, print and publish in a newspaper, to the following effect, viz. 1. Since the establishment of our independence there has been no man, appointed to an office, so unqualified to fill it, as C. S. Riggs (meaning the plaintiff) is that of commissioner of bankruptcy. Is the misanthropist and the violent partizan (meaning the plaintiff) a fit character to intrust the liberties of our fellow citizens with ? Mr. Riggs (meaning the plaintiff) has given no occular demonstrations to the contrary. He (mearing the plaintiff) has defeated nearly one third of all the unfortunate debtors that have been before him, (meaning the plaintiff,) first stripping them of every cent they have in the world, then depriving Vol. III.

33

Riggs v. Denniston.

them of the benefit of ihe act made for their relief, und the most trifling pretences; and, by that means, cutting off a number of valuable members from society; that property being taken from them, (meaning the said unfortunate debtors,) they have no way of bringing their creditors 10 a settlement; and, in that embarrassed sitaation, they can fol. low no business, and, perhaps, thrown into a jail, and there

expire for want. Oh! how grateful muust this be to [199] the feelings of this misanthropist, *(meaning the

plaintiff,) more so than to keep unfortunate debtors in jail for petty law.costs, when his (meaning the plaintiff's client is willing to liberate the poor sufferer, that has been in confinement for years; more so than if they had succeeded in depriving the debtors of the benefits of the limits ; nay, even more so than to receive a fee of 50 dollars, as a counsellor, (meaning to intimate, &c., that the plaintiff had been so employed,) and then to offer himself (meaning the plaintiff, and that he had voluntarily offered himself, &c.,) as an evi. cence against his client, in order to divulge the secrets he (meaning the plaintiff) received as counsellor, &c, (meaning thereby that he had divulged his client's secrets, contrary to his duty, &c.) 1 (meaning ihe defendant) cannot but contrast the conduct of the two sets of commissioners.

(Meaning one set whereof the plaintiff was not one and one set whereof the plaintiff was one.) The oue (meaniug the set whereof the plaintif was not one) acts according to the intent and meaning of the law, &c. They do not pervert it into an ex post facto law, and because a man cannot tell the loss and profit of a transaction, or discount paid upon a note, things that had taken place years before, &c. to cut him off from society," &c. (meaning to insinuate and have it believe, that the plaintiff had, as commissioner, &c. wilfully and knowingly, perverted the law, &c. for illegal and oppressive purposes.)

The second count was to the same effect, except, that it charged the libel as injurious only to the plaintiff as commissioner.

Riggs v. Denniston.

The third count was similar, but charged the libel as in jnrious only to him as a counsellor.

The plea to the first count stated, by way of justification :

1. That, on the fourth day of August, 1800, Nathaniel G. Ingraham employed the plaintiff, as counsel, in a case brought against hiin by Seixas and Abrahams, and paid *him 50 dollars. That Ingraham then inform: [*200) ed him, as a secret communicated to counsel, that he had concealed himself to avoid being arrested in that cause, and had, for that purpose, left the city ; which secret the plaintiff did afterwards divulge to W. W. Woolsey, and afterwards on the 30th December, 1800, at an inquest holden before the district judge, to inquire whether Ingraham had become a bankrupt, the plaintiff came and offered himself as a witness against Ingraham, in order to divulge the said secret.

2. That the plaintiff, before the publication, &c. did wrongfully and unlawfully use his power, as commissioner ; for that he, as commissioner, did, for one hour, examine a certain Napthali Judah, in the absence of the other commissioners, (the said Napthali being then a bankrupt,) and did require answers to questions put to him, without giving the said Napthali a reasonable time to make correct answers, and did cause such examination to be reduced to writing, and compel the said Napthali to sign the same, with the intent that such examination should be used by the commissioners, in deciding whether the said Napthali was entitled to the benefit of the act, &c.

3. That the plaintiff, before the publication, &c. did without assigning any reason, refuse, as commissioner, &c. to certify in the case of the said Napthali, and in the case of John Blagge, who had before been under exainination as a bankrupt, and who are entitled to their certificates.

4. That the plaintiff, before the publication, &c. did, as commissioner, &c. examine the said John Biagge, then before him as a bankrupt, and also the said Napihali and the said N. G. Ingraham, also bankrupts, touching the loss and profit on transactions many years before the bankrupt law

Riggs v. Denniston.

was in force, and because they could not tell, &c. the plain

tisl, as a commissioner, under such pretences, did de. [*201] prive them of the benefit of the act. Therefore, *the

defendent published the words in the first count, as he lawfully might.

There were pleas of jus'ification to the like effect, to the second and third counts in the declaration ; except, that the matier of justification in the second plea was, in conformity to the second count, confined to the plaintiff's conduct as commissioner, and in the third plea, to his conduct as counsellor.

The fourth plea was to the whole declaration, and to the effect "that at the time of printing and publishing the words, the same were true; wherefore, the defendant printed and published them as he lawfully might," &c.

There was a special demurrer to the first plea, because :

1. It did not deny any of the libellous matters set forth in the first count, nor set forth any legal justification or excuse, for a great part of the libellous words.

2. That the first count sets forth the meaning of the words by innuendoes, and the plea admits, not only the pubJishing the words, but the innuendoes, and does not allege any fact tending to justify them in the sense they are stated to have been published. It neither expressly admits, nor traverses and denies the innuendoes.

3. That the pretended justification does not meet and justify the allegations in the bill, neither as to the direct charges, nor as to the meaning, &c.

4. That the plea alleges the plaintiff did certain acts as commissioner, in the absence of the other commissioners; but does not describe who those absent commissioners were.

5. That the plea alleges a certain examination was intended to be used on the inquiry, whether, &c. which allegation is impertinent and senseless.

There were also special demurrers, to the like effect, to the second and third pleas.

The special demurrer to the fourth plea stated, that the

Riggs v. Denniston.

1

plea did not set forth one fact to show the truth of the libel, nor any matter of fact on which an issue could be taken, and was too general and uncertain. * Hopkins, in support of the demarrer.

[*202] Riker, contra.

KENT, J. delivered the opinion of the court. There can be no doubt but that the charges contained in the declaration are libellous, and actionable. They were published of the plaintiff, in relation to his profession and office, and tended to injure and disgrace him. They charged him with a want of fidelity in his profession, and with partial and oppressive conduct, as a commissioner. They were printed, and, consequently, had a wider circulation and more permanent existence. The only qnestion, therefore, that can arise upon the record, is, whether the pleas contain matter which amount in law to a justification of the libel.

One charge in the libel is, that the plaintiff had voluntarily offered to divulge the secrets intrusted to him by his client, contrary to his duty as a counsellor. The first plea (to which I now confine myself ) states, by way of justification of this charge, that the plaintiff being employed by Nathaniel G. Ingraham in a certain cause, was informed by him, as a secret, that he (Ingraham) had concealed himself and left the city, to avoid being arrested in that cause; and that the plaintiff afterwards divulged this secret to W. W. Woolsey; and, again, at an inquest held before the district judge, offered himself as witness against his client, in order to divulge that secret. The fact of his having divulged this secret to Woolsey, I consider as irrelative and impertinent. The libel charges the plaintiff with a breach of trust and duty as counsel, in that he voluntarily offered himself as an evidence to divulge the secret. The disclosure to Woolsey was no answer whatever to the libel, nor does that disclosure appear to have been intended, nor could it in judgment of law, have operated to the injury or prejudice of his client. The nature of the privilege of a counsellor *is, that (*203] he shall not disclose his client's secrets in any ac

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