Torrey v. Field

10 Vt. 353

• Court: Supreme Court of Vermont
• Decided: February 15, 1838
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

In this case, no question is made in regard to the sufficiency of the declaration. It seems to be admitted by the counsel for the defendant, that the matter, set forth in the declaration, as having been published by defendant, is in itself sufficiently libellous.

The defendant relies upon his pleas in bar, as being sufficient to justify the publication. These are ten in number. The county court rendered judgment for the defendant. If any one of his pleas is good, that judgment must be affirmed.

The pleas, after the fourth, are all manifestly bad. The fifth plea is but a general plea of the truth of the matters set forth in plaintiff’s declaration, without specifying any particular facts. This mode of pleading the truth is never allowed. The particular acts done by the plaintiff, which the defendant relies upon, as constituting the charge, must be spread upon the record and presented to the court, that they may judge, whether the facts warrant the charge made in the libel. Holmes v. Catesby, 1 Taunton, 543. J’Anson v. Stuart, 1 Term R. 748. Carr v. Jones, 1 Smith, 491. In the latter case it was held well enough to refer to'the declaration, andto that part of the libel attempted to be justified, generally — by saying “ from such a word to such a word,” — as is done in many of the pleas in this case:

In the sixth plea, the defendant attempts to justify that part of the libel denominated the “ Hopy Talbot contract,” by pleading the truth. The libel complained of, in this portion, charges that the plaintiff was the kept mistress of Doct. Phelps, on the same terms upon which said Hopy ' had been kept, i. e. being furnished with food and drink and clothing, and lodging, i. e. support. The plea alleges a contract of prostitution, in consideration of various articles of female wearing apparel, dress, ear-rings and money. This is a contract of the same character, but not in the same terms. The degree of turpitude is the same, but the transaction is not the same. Proof of the plea will not show the alleged libel true.

The authorities all concur in this, that where the defendant will justify by showing the truth of the matters charged in the libel, it must be the truth of the “very charge,” and it is not sufficient to plead and prove the plaintiff guilty of a similar offence, or even of one more flagrant.

In Johns v. Giddings, Cro. Eliz. — the charge was that plaintiff was a thief, and the pica that defendant furnished plaintiff ■ with cloth, who made his garments too strait, and therefore he published the words. The plea was held bad, as not amounting to a charge of theft. It is bad for that reason, and also for counting upon the evidence and not its legal effect.

In Hilsden v. Mercer, Cro. Jac. 677, the charge was that plain till'was a thief, and stole twenty pounds from me, and forty pounds from you. Plea that “ he stole two hens,’-’ bad. The same doctrine is holden in Stow v. Converse, 4 Conn. 18. Treat v. Browning, do. 408. Buller’s, N. P. 9. Smithies v. Harrison, 1 Ld. Raymond, 727. Andrews v. Vanduzer, 11 Johns. 38.

The reason of the rule, requiring such strictness in pleading the truth, is, that such justification does not always rebut all presumption of malice, A man may publish the truth, from motives of the most deep seated and rancorous mal ice; and still not be liable- to. an action, for the reason that the plaintiff has no ground of complaint. The truth is what any man has good right to assert, at all times. But it is not always prudent, and a man may sometimes do it, very much to his own prejudice. But the truth is never slander. The person assailed, however, under this shield, has the right to insist, that, for one offence, he shall not be held guilty of the whole law. He may insist that the defendant shall justify the “verywords” spoken.

The seventh plea is liable to similar objections. It atteinpts to justify the same portion of the libel, by alleging a contract at Rochester, before Timothy Eastman, to have sexual intercourse with Doct. Phelps, without any consideration. In a moral point of view, or as a question of public policy, it may not be very material, whether the contract of conpubinage be without consideration or not. Whether jt be fashionable profligacy, lust, or the prostitution, whjch is said to exist in our cities, for the mere purpose of daily subsistence, is not very important. But a}l will agree that these conditions or relations are not the same. And be who would justify malice, by proving the truth of his words, must see to it that he proves “ the truth.”

The eighth plea attempts to justify a portion or “ parcel” pf the libel in hcec verba, purporting to be recited continuously. In this extract are some important omissions. That portion, in which it is said that plaintiff “ was living with Doct. Phelps, as the successor of Hopy Talbot, &c. is wholly omitted. This is material, as being in itself libellous, and also with reference to the identity of the parcel” of the libel, attempted to be justified. What is said of Doct. P. having taken professional counsel, &c. is also omitted. This latter does not seem to be material, except as to the identity of the “ parcel.”

In attempting to recite a writing in hcec vería, the pleader must be holden to great strictness. If there is but the omission, or substitution, or addition of a single word, there is a Variance. The writings recited are not the same. It cannot be said that any part of the libel, in this case, corresponds, even in substance, with that attempted to be justified. A plea to part of the declaration is well enough. But the part, pleaded to, must be definitely pointed out, which is not done here.

This plea is further defective, in not covering all the ground assumed in the premises. The plea, after reciting the parts pleaded to, wholly omits to offer any justification for material parts of the libel extracted, viz. “ That the said Elisha had been induced to employ counsel at the pressing instance of the plaintiff, and that she was making shift to patch up an unseemly and unholy alliance, &c.” These matters are material, and found in the part of the libel pleaded to, and not answered. The plea is therefore bad. It should contain a sufficient answer to all which it attempts to answer. The authorities are very full to this point, Vanness v. Hamilton, 19 Johns. R. 369. Clark v. Taylor, 29 C. L. Rep. was the case of a motion to enter judgment summarily upon that part of the declaration not justified, and the court held that part not libellous. It does not, therefore, contravene the doctrine held here, but, on the contrary, confirms it.

The ninth plea attempts to justify all that part of the declaration, which charges that the plaintiff was accessary to Doct. Phelps’ procuring a fraudulent divorce from his first wife, by alleging the truth of those matters. But the plea omits all mention of the means used, or, indeed, that a divorce was in fact obtained, which would seem to be of the very substance of tire charge. The libel complained of most undoubtedly implicates the plaintiff in all the base and scandalous means resorted to, for procuring the divorce. She is there represented as being accessary to those means and subterfuges. But the plea simply alleges the making of a corrupt agreement between the plaintiff and Doct. Phelps, for the purpose of procuring a collusive decree of divorce between him and his wife, with a view to a marriage of the parties, and does not allege any act done in furtherance of such agreement. It is very questionable, whether just such a charge as that contained in the plea amounts to a libel. Such a charge, not in writing, most clearly would not amount to verbal slander, as not charging any indictable offence. There must be some act done in furtherance of the corrupt agreement, before the parties are liable to indictment. But whether a libel or not, it is not the same charge contained in the supposed libel. The plea is, therefore, bad.

The tenth plea attempts to justify that part of the supposed libel, in which the plaintiff is charged with becoming the successor of “ Hopy Talbot,” fey alleging a marriage of the plaintiff with Doct. Phelps, while he was the husband of another. This plea is liable to the same objection with the sixth and some others. If the plaintiff entered into such a contract, knowing the disability of Doct. Phelps, she would not be less criminal on account of the form of a marriage ceremony. But if ignorant of such disability, as, for any thing in this plea alleged, she might be, the contract and marriage, on her part, would be unworthy of blame.

The fourth plea attempts to justify the entire publication, by alleging the truth of the matters therein contained. The pretences are not attempted tobe justified. These are as libellous as any part of the publication, and as much required to be met by a plea, attempting to answer the whole declaration. It is true, many of the pretences are nonsensical and unmeaning, but all seem to have been studiously sought out and introduced for the purpose of exhibiting the conduct of the plaintiff, either in a wicked or ridiculous light, and some times in both relations. When it is represented that plaintiff pretended to have had actual cohabitation with Doct. Phelps, while he was the husband of Molly Phelps, it amounts to nothing less,, than accusing plaintiff of publishing her own infamy and criminality.

The remaining pleas are all of one character. The first plea alleges that the facts contained in the stating part of the bill were true, and that the defendant, haying married the said Mary Almira, and having an interest in the subject matter,filed his bill, procured a chancellor’s order, and made the publication, in accordance with the rules and practice of the court of chancery, it being the substance of the bill. The plaintiff’ contends this plea is bad for duplicity, in relying upon the truth of the matters contained in the bill, and also that the publication was made in the course of judicial proceedings. But it is evident, that what is said of the truth of the facts stated in the bill, is merely inducement to the gist of the plea, which is the publication under a chancellor’s order, in the course of judicial proceedings. In this view there is no duplicity. Duplicity in pleading is when the plea or replication, &c. contains two distinct matters, either of which is claimed by *the pleader, or is in fact, a sufficient answer to the foregoing matter of the opposite party, and requires two or more distinct answers, which may present more than one issue, to be tried, perhaps, by different tribunals. If the facts alleged are ever so multifarious, yet, if they all go to make up one entire result, and do not require but one answer, there is no duplicity. There is no more duplicity in this plea, than in the second, which alleges that, having heard these matters from common report, and believing them, and having intermarried, '&c. he brought his bill, obtained a chancellor’s order, and made the publication complained of as a libel, in the due course of judicial proceedings.

The second plea is objected to for another reason, i. e. that it attempts to justify the publication of the matters complained of,on the ground of common report. But this objection is not well founded. The defendant does not, in this plea, allege the common report as the foundation of the right to publish, but simply as the reason why he instituted judicial proceedings.

Common report, as a justification of publishing slanderous matter, whether in writing or not, has never been considered sufficient. It is received in mitigation of damages, as tending to show that plaintiff has lost less than if such reports had not been previously in circulation. But in order to amount to a justification it must appear, in actions for verbal slander, that, at the time of speaking the words, the defendant gave the name of the informant. And in an action fpr libel, it must appear that defendant set forth,in the publication,the name of the author,and the “very words” of the author. Maitland v. Goldney, 2 East, 426. This is required, say .the books, in order to give the person assailed a perfect cause of action, against the originator of the charge. With deference to the authorities, I have always thought a better reason ■ might be found in the fact, that in publishing the very words of another, as his words, you do not add currency to the accusation, by putting into the scale the weight of your own character, which may be good, whereas that of the author may have been wholly Worthless. If, at the time of speaking the words, you give them as the words of another, it goes very far to rebut all presumption of malice in you. It may be doubted, whether, on principle, a libel ought ever to be justified, by giving up, at the time of the publication, the name of the author, if the author did not put the charge in writing. By reducing oral slander to writing, its character is very materially changed, and its importance very much enhanced. Hence the excuse would seem to fall short of a full justification. But the Cases treat the justification as sufficient, even in cases of libel.

But this plea does not seem to rely upon this as a ground of right to publish the paper complained of, It is introduced merely as inducement to the plea, which is much the same, in other respects, as the first plea.

Upon principle, we think this plea puts the defence upon the true ground ; — That being interested in the subject matter, and having learned, from common report, such facts as induced him to believe he might recover, he, in good faith, instituted the suit, which was the occasion of publishing the paper complained of.

While, on the one hand, the party ought not to be required, in the course of judicial proceedings, to see to it, that every allegation, which he might deem for his interest to put upon the record, or which, in the ordinary course of such proceedings it might seem necessary to publish, should, in the event of the suit, prove religiously true, it is evident, on the other hand, that no more ought he to be permitted, under the guise and form of judicial proceedings, to publish scandal, and the basest slander, without having any interest or occasion to make such publication, except the gratification of personal malice. No person ought, in the course of judicial proceedings, even to publish that which he has no reason to believe, and does not in fact believe, and has no occasion to publish, except for some secondary purposes. But it must be confessed, the authorities upon this subject do not fully warrant this conclusion. The precedents and the decided cases do not require any inducement to the plea of justification under judicial process. If published “ in the due course of judicial administration,” it is sufficient.

The third plea is drawn strictly in accordance with the rules just stated, without any inducement. So that the three pleas, now under consideration, are, in substance, strictly of the same character, alleging that the publication was in the due course of proceedings in the court of chancery. And it does seem to be an admitted principle of the law of libel and slander, that no action lies for any thing said, or written, or published, in the ordinary course of judicial proceedings, and which comes within the ordinary scope of the forms and process therein, however groundless or malicious the suit may be, even if the process of the court is sought, as the mere cloak of malice and slander, Lake v. King, 1 Saund. R. 120, and notes, and authorities there cited.

.This defence is always available, under the general issue even, but may be pleaded specially, as may any other matter, which admits the speaking of the words, or the publication of the paper. If the truth of the words is relied upon in justification, it must always be specially pleaded, but the defendant will not be compelled to plead, specially, any matter, which shows that the words were not spoken maliciously, but on a justifiable occasion, or that they were spoken by counsel, in the course of the discharge of his duty to his client, and were pertinent to the matter in question ; or in giving the character of a servant; or where the defendant had an interest in the question, and spoke the words in the reasonable and necessary pursuit and defence of that interest. See notes to Lake v. King, 1 Saund R. 130. McDougall v. Clairidge, 1 Camp. 267. Dresmon v. Briggs, ib. 269. Delany v. Jones, 4 Esp. R. 71. But all these matters may be pleaded specially. This privilege, or immunity, for words spoken, extends equally to parliamentary proceedings, proceedings in the state legislatures, and in congress ; to parties, witnesses, jurors, judges and counsel, in courts of justice ; in short, to any one, who,, in the course of -the discharge of public duty, or in pursuit of private rights, is compelled to participate in the administration of justice, or in legislation. The rule is made thus broad, in relation to public functionaries, that they may feel under no constraint, or embarrassment, inconsistent with the faithful and fearless discharge of their difficult and important duties. Perhaps the reason and the necessity of the rule, in relation to public officers, is sufficiently obvious; i. e. to secure independence and impartiality.

But the rationale of the rule, as applicable to private suit-tors, is not as readily perceived. It is said to have been adopted, so that the poor, the humble, the unprotected and defenceless, might come fearlessly into the courts of justice, without being intimidated by the possible chance of being sued for libel or slander, by one of such wealth, power, or influence, as to make the contest too unequal to be hazarded.

We could well suppose a condition of society of such unequal relations of ranks and castes, as to require some such immunity to protect the humble against the mighty. But I must conclude that the rule, in its broadest extension, is more applicable elsewhere than here. The rule is, indeed, not a little creditable to the character of the courts of that country, from which we derive most of our precedents in jurisprudence, but it does seem to argue a state of society, never to be too much deprecated. There is, in principle, no good reason why a suitor in court should be permitted to publish slander with impunity, more than any other one, except so far as he may honestly believe, on advice, is necessary for the redress of his wrongs, and the obtaining of his just rights. But, as has been said, the rule is much broader than this. And although the party may be liable to an action for malicious prosecution, for instituting a groundless suit maliciously, and damages may be increased by the scandal brought on the plaintiff, yet, however slanderous or malicious the suit may be, if founded on probable cause, although instituted for the leading purpose of scandalizing the plaintiff, yet if the defendant keep himself within the ordinary forms of process and pleading,Hie is, in no sense or manner; liable for the scandal thus wantonly brought upon the plaintiff. If the matter were res integra, we might be inclined to qualify this rule. But such is now the settled law. And it is a principle of long standing, and has not, in practice, been found the occasion of any great injury or wrong. It being our duty to declare the law, as it existed in England at the time of our statute adopting it, we do not consider this portion of it as so far inconsistent with our circumstances or condition, as to warrant us in disregarding it. The rule, as it exists in England, has been adopted in many of the American Statos, and wc are not informed that, practically, any bad results have fob lowed. But we should require that the party, claiming the protection of this rale, should keep strictly within its limits. If he publishes more than is warranted by the ordinary forms of process and pleading, or on an occasion not requiring it, he cannot claim the protection of a suitor in court.

To apply this to the present case, it may well be said that it is the common and ordinary form of proceeding in courts of chancery, to file a bill similar, in its formal parts, to the present. The pretences are not indispensable, but they are usual. After • the filing of the bill, it is every day’s practice to publish the substance of it, under a chancellor’s order. Whether the party, in this case, published more than was necessary, or more than he was warranted in publishing, is not a question properly arising upon the demurrer. If the defendant did publish more than he was warranted in doing by the order, he is liable for the excess, if that contained scandal of a libellous character, and was published with a malicious intent to defame the plaintiff, and expose her to public disgrace, ridicule, and contempt. But the excess should have been specially.replied by the plaintiff, and would then stand as the basis of her claim for damages, and the question of defendant’s intent, in the publication of the excess, must be referred to the jury. For it is not to be tolerated, if the party shall, in good faith, publish more than is strictly warranted by the chancellor’s order, that he should be liable to an action on that account. But if he publish more, and the excess is libellous, he is, prima facie, liable, and it }s incumbent on him to show that he was not actuated by any malicious intention, in that portion of the pub* lication. And the jury are not to infer that he was not actuated by malice, unless upon proof of some other sufficient jnotive.

Upon the demurrer to the pleas, as in the present case, the county court could not take notice whether the publica* tion was according to the course of chancery practice or not. A majority of that court are not supposed tobe acquainted with the rules of practice in the court of chancery and are not bound to be ;— for rules of court are no part of the fixed law of the land. They are liable to change from term to term, by order of the court, and in fact do Ghange without its being supposed that any fixed principle is thereby unsettled.

Whether any given matter is, or is not according to the rules of practice in the court of chancery, is as much a ques-r tjon of fact, as the orders, sentences and decrees of that court, It is susceptible of definite proof. The defendant pleaded that his publication was according to the practice of that court, and the plaintiff demurred. The county court were fully warranted in adjudging the pleas sufficient. The excess should have been replied by way of new assignment. This course of pleading is in analogy to other cases decided in relation to slander and libe},

To a plea of justification of libel on the ground of the matters being true, the general replication de injuria is, in most cases, sufficient. But there are some exceptions. The rpplii cation is required to be special, when the plaintifl relies upon a pardon obtained before the publication of the libel. If the defendant justify the libel, as the words of another, and sq represented at the tiipe of publication, and the name of the author be given in the paper, and the plaintiff rely upon showing that the defendant, .at the time of the publication,knew the charge to be false and that the author had recanted it, he must, reply such matter specially. Moore, 863, 872. Maitland v. Goldney, 2 East. 426. There is the same reason for a special replication in the present case, by way of new as-, sighment. The three first pleas are sufficient, and the judgement of the county court must be affirmed.

Qn motion of the plaintiff, and on terms, the court reversed the judgment of the court below, and gave the plaintiff leave to withdraw the demurrer and file a replication to thq defendant’s pleas, which had been adjudged sufficient.