Lyons v. Townsend

2 Edm. Sel. Cas. 452

• Court: New York Circuit Court
• Decided: November 15, 1847
• Status: Published

Opinion

Edmonds, J.,

in charging the jury, said there were three points for their consideration:

First. WMeh pilot was meant by the article in the Express ? That one wMch remained on board the ship and piloted her into the harbor, or Mm who, taMng the dispatches, had immediately proceeded to the land ? That was purely a question of fact for the jury to determine.

Second. Was the charge a privileged one? The rule is, that wherever a person speaks in the performance of any duty, legal or moral, public or private, or in assertion of Ms own rights, or to vindicate and protect his own interest, no action will he against Mm, unless express malice be proved, however untrue what is said may be. In this case there had been no attempt to prove express malice, and if the jury believed that the defendant’s language was used in the assertion of a right, or to vindicate or protect his interest, or in the pertormance of a duty, the plaintiff could not recover.

Third. If the jury did not conclude that the charge was privileged, then they would inquire if the defendant had not justified it by proving it true. The charge was, that, in violation of Ms own promise and of the confidence reposed in Mm by the master of the ship, he had not delivered all the dispatches immediately on his arrival in town, and it was for the jury to find out, if they could, why he could not have delivered all the dispatches as early as he had delivered one of them.

There was a verdict for the defendant.