Stilwell v. Barter

[489] By the Court, Bronson, J. The plea contains a good deal of irrelevant matter, which might better have been omitted; but mere surplusage will not vitiate the pleading. It cannot be denied that the publication in the Times imputes to the plaintiff so much, at least, of the misconduct mentioned in the previous article in the Republican as relates to the smuggling of goods during the late war. After mentioning that article, the defendant says, “ the paragraph refers undoubtedly” to the plaintiff; and it is immediately added, “He will not deny that he has been actively and profitably engaged in a particular kind of dry goods business, and it is supposed that he received the appointment of inspector on account of his intimate knowledge of the old smuggling haunts and by-paths.” The defendant proceeds to state that he referred to the same time which had been mentioned in the Republican article, to wit, the period of the late war. I shall not stop to inquire whether the defendant’s publication necessarily imputes to the plaintiff “ the same principle and spirit” which are said to have been in operation during the late war; whether it charges him with having attempted “to render the revenue laws of our country and those who execute them obnoxious to the people, in order to encourage smugglers, and give them countenance in their operation,” nor whether the plaintiff is charged with the more serious offence of having “ made a profitable business by supplying the armies of our enemies with provisions, thus aiding them p an attempt to subvert and overthrow the liberties of our country.” On the most favorable construction that can be given to the libel, it charges the plaintiff with having been engaged in smuggling goods into the country from Canada during the period of the late war; that he was so engaged,not in a single instance only, but as a business or pursuit. The language is, “ he has been actively and profitably engaged in a particular kind of dry goods business,” and thus acquired an “ intimate knowledge of the old smuggling haunts and by-paths.” It is also charged, in effect, that the plaintiff received his appointment to office on account of the intimate knowledge [490] which he had acquired in that business of the old smuggling haunts and by-paths. The plea contains no answer whatever to the charge that l^e plaintiff was engaged in smuggling during the period of the late war. It only alleges a single violation of the laws of the United State's in February, 1812—several months before war was declared. There are several shades of difference between a mere transgression of the revenue laws of, the country in time of peace, and an illicit intercourse with the public enemy in time of war; and the defendant must justify the charge which he has made. It is not enough to show that the plaintiff has been guilty of some improper conduct, other than that which is imputed to him. Andrews v. Vanduzer, 11 Johns. R. 38. Skinner ads. Powers, 1 Wendell, 45 L The plea contains no answer to the charge that- the plaintiff received his appointment to office on account of his intimate knowledge, acquired by smuggling, of the old smuggling haunts and by-paths. It professes to answer th’e whole libel, and is clearly bad for only answering a part. The plea is also bad, for the reason that the justification is not so broad as the charge. The charge is, in effect, that the defendant had been actively and profitably engaged in smuggling as a business ; and the justification is, that he had on one occasion smuggled goods. In Sterling v. Sherwood, 20 Johns. R. 204, the charge was, that the plaintiff had trafficked in human flesh. The court said that this imputed to the plaintiff the habit of buying and selling slaves; and the plea, which alleged that the plaintiff owned and had two slaves in his family, one of which he purchased for $200, was held to be no answer to the charge. Skinner ads. Powers, 1 Wendell, 451, asserts the same principle. Any one may publish the truth of another, however much it may affect his reputation ; but he must take care.not to make, the charge broader than he can justify. Judgment for the plaintiff.