FROM ROCKINGHAM CIRCUIT COURT. It is a sufficient answer to the objection against admitting secondary evidence of the existence and contents of the alleged libellous writing, that the original was shown to be beyond the jurisdiction of the court. Burnham v. Wood, 8 H.H. 334; Little v. Paddleford, 13 N.H. 167; Woods v. Banks, 14 N.H. 101; Lord v. Staples, 23 N.H. 448; Beattie v. Hilliard,55 N.H. 428.
There was evidence from which the court might well find authority on the part of Admiral Porter to write the letter which the plaintiff received, with a copy of the supposed libel, on behalf of the navy department; and that fact being found, the letter is to be regarded as the act of the department, and was on that ground admissible.
I am inclined to think the ruling admitting the plaintiff's testimony that he sold his furniture at a loss, upon being transferred from Portsmouth, may be sustained upon the doctrine of Ingram v. Lawson, 6 Bing. (N.C.) 212. That was a statement published in the Times newspaper, that a ship, of which the plaintiff was owner and master, and which he had advertised for a voyage to the East Indies, was not a sea-worthy ship, and that Jews had bought her to take out convicts. *Page 287 The statement was held to be a libel upon the plaintiff, in his trade and business, for which he might recover damages without proof of malice, or allegation of special damage. The action was brought within three days after the publication of the libel. The plaintiff was permitted to prove at the trial what was the average profit to the captain of a ship upon an East India voyage, and that, upon the first voyage he took after the publication of this libel (it was also after the action was commenced), the plaintiff's profits were nearly £ 1,500 below the average.
The judges were unanimous is holding that the evidence was properly received on the question of damages. Mr. Sedgwick, speaking of this case, says, — "But evidence of profits was not regarded properly as a measure of damage;" and, after quoting some remarks of the judges in rendering their judgments, he repeats, — "The evidence was admitted, not as a measure of damages, but to serve as a guide for the exercise of that discretion which, to a certain extent, is always vested in the jury." Sedgw. on Dam. 92. It does not appear here that the plaintiff undertook to state the amount of his loss on his furniture; so that the loss from this cause could not have been made a measure of the damages. So far as the case shows, it was no more than a statement, made in general terms by the plaintiff; that he suffered inconvenience and loss as a direct consequence of the libel. His position was, that the libel caused his transfer from the naval station of Portsmouth. Whether he ought to recover anything for that reason depended upon whether the transfer caused him inconvenience and loss or not. Upon the whole, I am of opinion the verdict ought not for this reason to be disturbed.
The question as to the publication being privileged was rightly left to the jury. See authorities cited by the plaintiff.
The pleadings are not set out in the case as reported for our consideration, and without them I think it is impossible to say whether the instructions which the judge gave to the jury, and his refusal to give those requested by the defendant, were right or wrong. Certainly the case furnishes no evidence from which it can be concluded that they were wrong, and so no ground upon which the verdict can be set aside. But a copy of the pleadings was furnished us at the argument, and, upon an examination of the record, I think the rulings and charge of the court were right.
The second plea, which sets out certain specific facts going to show that the words were true, closes in this way: "And the defendant, believing that the public good required that said plaintiff should be removed from said office at said station, and that a suitable officer should be placed in his stead, and that the senators and representatives in congress from the state of New Hampshire were the proper persons and officers to be petitioned in order to procure the removal of said plaintiff from said office at said station, in good faith, and with out any malice or ill-will to the plaintiff, but solely to procure the removal of the plaintiff from said office at said station for the public good, signed said petition," etc. Here is a most unequivocal and carefully drawn allegation that the occasion was lawful and the end justifiable. *Page 288 It is an integral part of the same plea in which the facts are stated which go to show that the words were true. This plea comes nearer than any of the others to setting up the truth in justification. But the legal effect of the allegations quoted above is clearly a qualification of the preceding statements in the plea, insomuch that the plea would be sustained, as I understand it, by proof that the defendant had probable cause to believe and did believe that they were true, supplemented by proof of this additional allegation of the lawfulness of the occasion. Palmer v. Concord,48 N.H. 217. At all events, it constituted a material part of the plea of justification, and, according to all the authorities, the defendant was bound to prove it substantially as set out. The instruction followed the plea, and required of the defendant nothing more than he was bound by law to do, namely, prove his justification as he had chosen to state it in his plea. 1 Ch. Pl. 494. My conclusion is, that the exceptions must be overruled.
Loading…