Riggs v. Denniston. arately examined Napthali Judah, and required his answers, without giving him a reasonable time to make correct ones; that the plaintiff, without assigning any reason, refused to certify as commissioner in the cases of Napthali Judah and John Blagge; and that he examined, as commissioner, Judah, Blagge and Ingraham, touching transactions that happened many years before the bankrupt act was passed, and because they could not answer, refused them their certificates. My opinion, on these facts, is, that neither of them amounts in law, to a justification, because neither of them import, with certainty, even to a common intent, that the plaintiff wilfully perverted the law, for illegal and oppressive purposes. They may all be true, and yet consist with rectitude of intention. The examination of Judah, in the absence of the other commissioners, may have been legal, for what appears to the contrary. If the bankrupt be in execution, or cannot be brought before the commissioners, (which might have been the case here,) any one of them may attend and take his discovery; (Laws of U. S. vol. 5, p. 60,) and what amounted to reasonable time to give a correct answer, was matter of opinion. There is nothing in this transaction, that by a common intent, implies, or that is averred to mean, depravity of heart, and in that consisted the essence of the libel. The same remark applies, and with stronger force, [205] to the other fact of withholding the certificates. The plea does not meet and justify the charges. It is substantially defective. There are other charges in the libel which the plea has not attempted to answer or justify, and which charges were clearly libellous, because they threw contumely and odium upon the plaintiff, in his character as commissioner. These charges represented him as a misanthropist, a violent partizan, as stripping unfortunate debtors of every cent, of being gratified in their distresses, &c. It is unnecessary, at present, to examine the question, whether the law will allow of a justification of such charges, which do not fix upon the party Riggs v. Denniston. any indictable offence. It is sufficient to observe, that in respect to the pleas now in question, no justification is set up in answer to them, and as the plea does not, therefore, either by denying or justifying, meet the whole matter or gravamen contained in the count, it is for that reason also bad. (2 Vent. 193. Cro. Jac. 27. Cro. Eliz, 434.) I have confined myself hitherto to the first plea, but the second and third pleas being to the same effect, the same remarks will apply to them. The fourth plea contains only a general allegation that the words in the libel were true. If those charges in the libel, such as misanthropy, &c. to which no justification is set up, be capable of being justified, (and on which point we give no opinion,) this general allegation is sufficient, because such a character as the libel bestows upon the plaintiff, is not formed by one specific act, but by habitual conduct. However, as to other parts of the libel, the plea is too general and vague. It ought to have stated the precise facts which were to justify the charges, so that the plaintiff might have an opportunity of denying them. Upon the whole, we are of opinion, that all the pleas are bad, and that judgment ought to be for the plaintiff. Judgment for the plaintiff.(a)(b) (a) [Old note.] In August, 1802, a jury of inquiry assessed the damages of the plaintiff at 500 dollars. (b) In Dexter v. Spear, (4 Mason, 115,) a libel is defined to be any publication, the tendency of which is to degrade and injure another person, or to bring him into contempt, hatred, or ridicule, or which accuses him of a crime punishable by law, or of an act odious and disgraceful in society, is a libel. In Steele v. Southwick, (9 Johnson, 214,) a libel is said to be a censorious or ridiculing writing, picture, or sign, made with a mischievous and malicious intent, towards government, magistrates, or individuals. In Commonwealth v. Clapp, (4 Massachusetts, 163, 168,) it is called a malicious publication expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt or ridicule. And in State v. Farley, (4 M'Cord, 317,) a libel is a censorious or ridiculing writing, pic. ture, or sign, made with a mischievous and malicious intent. And in the same case it is decided that nothing but that which is criminal, immoral, or ridiculous, can be libellous, and it is incumbent on the prosecution to stamp 34 VOL. III. Riggs v. Denniston. that character on the transaction. Thus a publication which assails the integrity or capacity of a judge, is actionable. Robbins v. Treadway, (2 J. J. Marsh. 540.) And on a publication, ironically charging the plaintiff with insanity, is libellous, as holding up the plaintiff in a ridiculous point of light. (Southwick v. Stevens, 10 Johns. 443) And it is libellous to publish a correct account of judicial proceedings, if accompanied with comments and insinuations tending to asperse a man's character. (Commonwealth v. Blanding, 3 Pick. 304. (Thomas v. Croswell, 7 Johns. 264.) So it is a libel to publish in writing of a man, that he has put in circulation a false, scandalous, and scurrilous report. (Colby v. Reynolds, 6 Verm. 489.) And where a resolution was adopted by a county medical society, in New York, and entered among their proceedings, expelling a member, on the ground that he did not possess the requisite qualifications, and obtained his admission by false pretences, it was held, that the resolution was a libel, their doings in such a case being without their jurisdiction, and that the member introducing the resolution was liable to an action. (Fawcett v. Charles, 13 Wend. 473.) And a publication, stating that the plaintiff is about to commence a suit for libel, but that he will not like to bring it to trial in a particular county," because he is known there," is libellous. (Cooper v. Greeley, 1 Denio, 347.) Such a publication amounts to a charge that the plaintiff is in bad repute in the county referred to, and for that reason would not like to bring the suit to trial in that county. (ib.) The books are full of cases upon this subject, confirmatory of the principle of Riggs v. Denniston; White v. Nichols, 3 Howard, U. S. 266. Torrance v. Hurd, Walker, 403; Newbraugh v. Curry, Wright, 47; Howard v. Thomp son, 21 Wendell, 319 ; Schenck v. Schenck, Spencer, 208; Woodburn v. Mil-. ler, Cheves, 194; Hillhouse v. Dunning, 6 Connecticut, 391; U. S. Dig. tit. Libel, I; id. Suppl. tit. Libel, I; Starkie on Slander, Am. ed. 1843, vol. 1, p. 132. 4 Phill. Ev. Cowen & Hills, ed. 236, et seq. 2 Starkie Ev. ed. 1842, 617, et seq. 3 Steph. N. P. 2221, et seq. 2 Wheaton's Selwyn, ed. 1848, p. 1061, et seq. 2 Greenleaf's Ev. p. 330, § 410, et seq. Wilkie v. Roosevelt. *WILKIE against ROOSEVELT. [*206] In an action on a promissory note, the defence was usury, and the judge, at the trial, charged the judge that the note was usurious, (see ante, p. 66,) and that they ought to find for the defendant; but the jury found a verdict for the plaintiff; and the court afterwards set aside the verdict, and granted a new trial. On the second trial, the jury, on substantially the same evidence, notwithstanding the opinion of the court, found a verdict for the plaintiff, and the court set aside the verdict, as against law, and granted a third trial. When a verdict is against law, a new trial will be granted without costs. Although, after two verdicts, the court will proceed with the utmost caution and deliberation in granting another trial, yet when the verdict is against law, there can be no question as to the right of this court again to interfere. Per Thompson, J. If a promissory note is given for a usurious contract, it is absolutely void, even in the hands of an innocent person, who has taken it in the fair and regular course of trade, without knowledge of the usury. Usury consists in extorting or taking a rate of interest for money, beyond what is allowed by law. It is not necessary that money should be actually advanced, in order to constitute the offence of usury, but any pretence of contrivance whatever, to gain more than legal interest, where it is the intent of the parties to contract for a loan, will make that contract usuriPer Thompson, J. ous. When a contract is usurious in its inception, no subsequent transactions will cure it; but if the original contract is not usurious, nothing done afterwards can make it so. Per Thompson, J. Proof of usury generally depends on circumstances, and where those circumstances are so strong as to produce absolute conviction in the mind, they are certainly entitled to as much weight as direct and positive testimony. Per Thompson, J. The jury should be the triors of the fact, and the court judges of the law Per Thompson, J. and Radcliff, J. On a second trial of this cause, (see ante, p. 66,) the jury again found a verdict for the plaintiff, and a motion was now made to set aside the verdict, and for a new trial, on a case containing substantially the same facts as appeared in the former case. The only difference was, that Mark, one of the drawees. who had been discharged under the insolvent act, and whose Wilkie v. Roosevelt. interest was released, was admitted as a witness; but this evidence did not vary from, but rather corroborated, that given by the other witnesses at the former trial. As the case is important, in respect to the statute against usury, as only three judges were on the bench when the first motion for a new trial was argued, and as a difference of opinion existed among them, it may be useful, particularly in regard to the power exercised by the court, in granting new trials, to state the judgment of the court, after the second argument, on a motion for a third trial of the cause. The motion was argued by Jones and Hamilton, for the defendant, and Colden and Hoffman, for the plaintiff. THOMPSON J. Two questions, arising out of the above case, present themselves for the consideration of this court. 1. Whether this note was given for a usurious consideration. 2. If so, whether the court ought again to interfere and grant a new trial. Usury consists in extorting or taking a rate of [*207] interest *for money, beyond what is allowed by law. It is not necessary that money should be actually advanced, in order to constitute the offence of usury, but any pretence or contrivance whatever, to gain more than legal interest, where it is the intent of the parties to contract for a loan, will make that contract usurious. It is admitted that the parties to this suit are innocent, and that Edward Wilkie paid a valuable consideration for the note. This, however, cannot affect the present question, for if this note was given upon a usurious contract, it is absolutely void, even in the hands of an innocent person, who may have taken it in a fair and regular course of trade, without any notice of the usury. If the contract was usurious in its inception, no subsequent transactions will cure it; but if the original contract was not usurious, nothing done afterwards could make it so. |