Van Ness v. Hamilton

Spencer, Ch. J. delivered the opinion of the Court. It is not requisite to state the declaration or the pleas. Such parts of them as are necessary to be considered, will be noticed. But before I consider the particular objections to the pleas pointed out by the special demurrers, it will be proper to advert to some well-established principles, in relation to pleas in bar, in actions for defamatory words, or libellous charges. It may, however, be observed, in the outset, that there exists a decided distinction between words spoken, and written slander. To maintain an action for the former cause, the words must either have produced a temporal loss to the plaintiff, by reason of special damage sustained from their being spoken, or they must convey a charge of some act criminal in itself, and indictable as such, and subjecting the party to an infamous punishment, or they must impute some indictable offence involving moral turpitude. To maintain an action for a libel, it is not necessary that an indictable offence should be imputed to the plaintiff. If a libel holds a party up to public scorn, contempt, and ridicule, it is actionable. (9 Johns. Rep. 214. 7 Johns. Rep. — 368 — 264.) It has not been controverted by the defendants’ counsel, that the publication complained of is libellous, if untrue. It contains grave charges against the plaintiff, of prostituting the high and dignified office of a Judge of the Supreme Court, and, as such, ex officio, a member of the Council of Revision, to base and mercenary purposes, utterly incompatible with his duty to the public. A plea in bar of the plaintiff’s action, must be certain to a common intent; it must be direct and positive in the facts set forth, and must state them with all necessary certainty. It is not correct to say, that in a plea justifying a libel, because the subject comprehends multiplicity of matter, there may be general pleading, to avoid prolixity. • In 1 Chitty’s Pl. 240. 516., the true rule will be found; a rule frequently sanctioned in this Court, and adjudicated in the Court for the Correction of Errors. (11 Johns. Rep. 573.) The tule to which I allude is laid down in the case of J’Anson v. Stuart. (1 Term Rep. 748.) There the action was for a libel, charging the plaintiff with being connected and con* cerned with a gang of swindlers and common informers. The plea stated, that the plaintiff had been dishonestly concerned and connected with, and was one of a gang of swindlers and common informers, and had, also, been guilty of defrauding divers persons with whom he had dealings and transactions. On demurrer to this plea, it was decided, that it was bad, on account of its generality; that it was contrary to every rule of pleading, to charge the plaintiff with swindling, without showing any instances of it; for, wherever one person charges another with fraud, he must know the particular instances on which his charge is founded, and, therefore, ought to disclose them. Ashiiurst, J. said,' one part of the defendant’s argument had been, that the plea is only as general as the charges in the declaration. He said, it was to be observed, that it was the charge of the defendant, and the plaintiff was bound to state it as made, and that it did not follow that the defendant ought to justify in so general a way; that when he took upon himself to justify, generally, the charge of swindling, he must be prepared with the facts which constitute the charge, in order to maintain his plea, and then he ought to state those facts — 369 — specifically, to give the plaintiff an opportunity of denying them, for the plaintiff could not come to the trial prepared to justify his whole life. That if the defendant could support his charge, it must be known to him, and he must call witnesses to prove particular acts of fraud, and if he could not substantiate the charge, he ought not to have made it. Butter, J. said, that if the plaintiff had been guilty of any acts of swindling, the defendant must be supposed to know them; that the defendant had no justification, unless he could prove the special instances, and knowing them, he ought to put them on the record, that the plaintiff might be prepared to answer them. Both Judges, Butter and Ashhurst, refer to cases of indictment for barratry, keeping a' disorderly house, and as a common scold, and declare them to be peculiar cases, supported by peculiar reasons, but not applicable to the case then under consideration. Buller, J. states the rule in pleading to be, that wherever a subject comprehends multiplicity of matters, in order to avoid prolixity, generality of pleading is allowed; but, he says, if there be any thing specific in the subject, though consisting of a number of facts, they must all be enumerated. I have been thus particular in stating the doctrine advanced by the Judges in the case of J’Anson v. Stuart, for no case has fallen under my observation impugning the principles there laid down. It would be an alarming doctrine to maintain, that one man might charge another with stealing, generally, and then, by way of justification, plead merely that he was a thief, and had stolen; or that he had stolen from A. or B. or C. Such a plea would be condemned by every sound lawyer, as falling far short of a justification. A material and traversable fact must. be expressly stated. (2 Johns. Rep. 433. 3 Johns. Rep. 242. 7 Johns. Rep. 75.) It is another rule in pleading, that when the plea professes to be a plea to the whole declaration, and omits to answer a material part of it, it is bad on demurrer. (11 Johns. Rep. 573. In Error.) I consider the first plea bad, in omitting to state, that the plaintiff was a stockholder, or interested in the Bank of'Columbia. That fact was alleged in the libel, and it was obviously so alleged, to induce a belief, that the plaintiff advo — 370 — cated the incorporation of the Bank of America from interestec| motives, arising out of the agreement relative to the loan to be made by the Bank of America to the Bank of Columbia. But the great and striking defects of the plea, are those pointed out in the 11th and 12th causes of demurrer. The plea is bad in stating, that the agreement was made with the plaintiff, E. Williams, or J. R. Van Rensselaer, or to or with one or more of them, on behalf of himself or themselves, on the behalf of the other or others of them. It leaves the fact unassisted, and uncertain, whether the plaintiff was a party to the agreement. It offers no issuable point, for if the plaintiff had replied that he never made, or assented to any such agreem'ent, and was no party to it, the replication would be no answer to the plea, for the fact was not positively asserted in the plea. With respect to the three per cent, or the one half of the interest, payable by the Bank of Columbia to the Bank of America, which the libel states was to be paid by the Bank of America to the plaintiff, E. Williams and J. R. Van Rensselaer, the plea sets forth that it was to be paid to the plaintiff, Williams, and Van Rensselaer, or to some, or one of them, for the use and benefit of himself or themselves, or for the other or others of them; thus leaving it altogether uncertain which of the three was to receive this interest. The fact thus pleaded is not traversable, and it is impossible to reconcile the plea, in this respect, with any principle of pleading. It is no answer to the libel, and does not, absolutely and necessarily, implicate the plaintiff at all. That part of the plea objected to by the 12th cause of demurrer, is equally vicious. It does not state that Williams had any authority from the plaintiff to enter into the negotiation, and to receive the 20^000 dollars. The plea states the offer made by the Bank of America to give the 20,000 dollars ; and that it was acceded to, and accepted by Williams, on the part and behalf of himself and the plaintiff, and Wan Rensselaer; but it does not assert and state, as ' it ought, that the plaintiff had authorized Williams to enter into that negociation in his behalf, and '.to make the compromise. ¡For, even supposing that Williams represented himself as authorized by the plaintiff, and the Bank of Ame* — 371 — rica had paid the money on that supposition, the plaintiff was entitled to have the fact stated that it was by his authority, for no mam ought to be implicated by the acts or decíarations of a third person. He has a right to have the fact so pleaded as to take issue on the point, whether the person professing to act as agent, was such in reality. The defendants having made the charge, that the plaintiff, a member of the Council of Revision, did receive money for services rendered in procuring the incorporation of the Bank of America, were bound to show it in their justification ; not in the words of the charge, but by stating the facts with sufficient certainty, which should make out the charge, so that the plaintiff might be enabled to take issue on the very fact. (1 Chitty’s Pl. 519.) With respect to the irrelevant matters set forth in the plea, in no respect affecting the plaintiff’s conduct, it is a rule, that matters of inducement need not be stated with as much certainty, as other parts of pleading, because they are seldom traversable. (1 Chitty’s Pl. 596.) In the present case, however, there are many irrelevant facts introduced into the plea, for no conceivable purpose whatever; and I do think, such pleading ought to be discountenanced, as tending to the very prolixity which the defendants’ counsel contend against; and to avoid which they have urged a relaxation of the well established rules of pleading. Upon the subject of prolixity in pleading, how it may be avoided, and how far the Courts of law will tolerate general pleading, the whole subject is discussed by Sergeant William, in 1 Saund. 243, 244. in the notes; and it will be seen that the admission of generality in pleading, was never applied to a case like this. With respect to the-import and meaning of the libel, the principle laid down in the Court for the Correction of Errors, by Van Buren, Senator, (11 Johns. Rep. 593, 594.) is this: that it is not necessary, that the libel, in plain and express terms, should charge criminality; but that if it 'neces- ' sarily implicates the conduct of the party concerned, it is libellous; and he, very properly and emphatically, said, that the. contrary doctrine, “ added to the acknowledged licentiousness of the press, would form a rampart from be — 372 — hind .which the blackest scurrility and the most odious tirimjDatj0ns might be hurled on private character with impunity, and would, indeed, render the press both a public an<* private curse, instead of a blessing.” I fully assent to. this proposition. The 2d, 3d, 4th, 5th, and 6th pleas are liable to the same objections, which have been shown to exist as to the first plea. It cannot be necessary to recapitulate them. Those pleas are all substantially the same, the variance between them being minute and unimportant; and they are all bad. The 7th plea is, also, bad, for some of the reasons applicacable to the first plea; but a cause of demurrer peculiar to this plea is, that the plea alleges, that the plaintiff used and exerted the influence of his talents and.standing, to promote the passing of the act incorporating the Bank of America, under and with the hope and expectation of being compensated and rewarded, for his services in the premises, by the applicants for the incorporation, in case of the eventual success of their application. This allegation is bad for two reasons: first, because it is impossible to take issue on the fact, for it is not susceptible of trial. The plea states no fact on which that hope or expectation could be founded ; and instead, therefore, of a trial of facts, the inquiry would be into) the secret operations of the mind and thoughts of the plaintiff; and I will venture to say, that such a plea is without a precedent, An act, it is true, may be done with a particular intent, and the intent may render the act criminal; but, in such a case, the intent is demonstrated by the act, and the circumstances under which it was done ; as in the case of an assault and battery with intent to murder. But the case presented by the plea is entirely different; the acts do not necessarily manifest the intent imputed, and the intent is not necessarily connected with, the acts; and, secondly, if one man charge another with having committed a particular felony, would a plea stating a disposition and intention to commit the felony be any answer to the charge ? And that is precisely this case. The 8th plea stands in the same predicament, and is liable to all the objections, pointed out as to the 7th plea. The 9th plea sets forth an agreement made between E. — 373 — Williams, George Nezubold, and Henry Post, Jun., or one of them, as agents for the petitioners for the incorporation of the Bank of America:, whereby the Bank of Colvmbia, in the event of the incorporation of the Bank of America, upon the terms and conditions set forth in their petition, or.on terms equally advantageous, should have an advance from the Bank of America, to the amount of 150,000 dollars, for fifteen years, at three per cent, on such amount as should be continued in advance ; that such agreement was corruptly made to secure the influence of Williams, and of such others as might be interested in the fulfilment thereof, or in the benefits Williams expected to derive from the contract. It then states, that at the time of making the contract, or shortly thereafter, and before the passing the act incorporating the Bank of America, it was understood and agreed, between Williams, the plaintiff) and Van Rensselaer, that if the act passed, and in case the said agreement should be ratified and carried into effect by the Bank of America, the plaintiff and Van Rensselaer should be entitled to receive one third part of the pecuniary benefits which Williams expected to receive under the agreement; that the plaintiff and Van Rensselaer openly exerted their influence, &c. to promote the incorporation, and that the Bank of America was incorporated. The plea then states the employment, by the agents of the Bank of America, of improper means with other persons, and then the final arrangement between Williams and the Bank of America, whereby he received 20,000 dollars, as an equivalent and compromise of the agreement with the agents ; and that Williams, for himself, and on the behalf of the plaintiff and Van Rensselaer, assented to the proposition made by the Bank of America, to pay 20,000 dollars; and, thereafter, paid the plaintiff 5,000 dollars thereof, to which the plaintiff was considered to be entitled under the agreement made with Newbold and Post, or one of them. The plea then alleges, that the plaintiff, corruptly, and contrary to the duties of his office, as a member of the Council of Revision, received the said 5,000 dollars, for, and in consideration of the services rendered by him, in procuring the act of incorporation of the Bank of America. — 374 — This plea professes to answer all the counts in the declaratj0[1) and to answer every part of those counts; but it eohtains an answer only to a part of the libellous publication. It is, therefore, bad on demurrer. (11 Johns. Rep. 593. 1 Chitty, 509, 510. 1 Saund. 244. n. 6., and the cases there cited.) The material part of the libel unanswered, relates to the agreement imputed to the plaintiff, to receive, together with Williams and Van Rensselaer, th.e three per cent., being one half of the six per cent., payable by the Bank of Columbia, to the Bank of America, in consideration of the loan and credit of 150,000 dollars. It omits, too, to state, that the plaintiff was a stockholder, or interested in the Bank of Columbia; and it omits, all mention of the annual bond to be given by the Bank of Columbia to the Bank of America, and of the personal bond to be given by the plaintiff, Williams, and Van Rensselaer. This plea does not state, that the plaintiff-, as a member of the Council of Revision, voted for the bill incorporating the Bank of America, and it does not impute to the plaintiff any unlawful or corrupt act, whereby he was to be entitled to one third of the 20,000 dollars. Although it does impute highly unbecoming conduct, yet it falls far short of the charge in the libel. There are various other special causes of demurrer to this plea, which are well taken, but which are formal and technical. The 10th plea is bad, for the reasons assigned as to the 9th plea ; and it is bad, also, for uncertainty, in not setting forth, specifically, who paid the 5,000 dollars to the plaintiff. The plea alleges, that the 20,000 dollars was paid to E. William? and J. R. Van Rensselaer, or one of them; and that the said E. Williams, and J, R. Van Rensselaer, or one of them, paid to the plaintiff 5,000 dollars, &c. For the reasons already given, this mode of pleading is bad. Both of the last pleas are further objectionable, in omitting to state, that Williams, or Williams and Van Rensselaer together, were authorized by the plaintiff to make the arrangement with the Bank of America, for the payment of the 20,000 dollars. I have thus examined all the essential parts of the pleas as applicable to, and professing to answer the declaration. — 375 — The pleas are so voluminous, that some facts may have been overlooked, but this cannot be material; for if the defendants elect to plead anew, the pleas must conform to the principles which I have laid down, and which all my brethren approve. We mean to be understood, that we consider the pleas materially and radically bad, in the several particulars pointed out. They may he formally bad in some respects not adverted to. I mention this, that, hereafter, no conclusions may be drawn in favour of the validity of such parts of the pleas as have not been noticed. There must be judgment for the plaintiff, with leave to the defendants to amend, on payment of costs. Judgment for the plaintiff, accordingly.