Keene v. Relf

Carleton, J., delivered the opinion of the court. The plaintiff sets out his case at considerable length, and in substance alleges, that while acting in his capacity, as counsellor at law and curator of the estate of the late Daniel Clark, he had exposed the flagrant abuses and malversations practised by the defendant, as one of the executors of said estate, under a pretended will, which had been revoked by the testator, who had made another and appointed other-executors, from his knowledge of the defendant’s unworthiness of the trust; that this last will had mysteriously disappeared when said defendant was present and had charge [307] of the papers of the deceased; “ and by kis shuffling, cutting and dealing Clark’s will-pack, turned up for himself an executor trump." That thereupon the defendant instituted a libel suit against the petitioner, for an alleged injury done to his character, claiming twenty thousand dollars damages; that petitioner, not having been actuated by malice in making such charges, but aware of their truth, plead, and relied in his answer, upon the plea of justification ; that the libel suit being tried, verdict was rendered for this petitioner; that by reason of such libel suit, this petitioner had been detained in Louisiana, and prevented from proceeding to Spain, on business of importance, whereby he would have reaped great personal advantage and profit; that said libel suit was instituted through motives of revenge and malice against the said petitioner, for having unmasked said Relf and shown his abuses and malversations upon said Clark’s estate, and the suppression of his last will of 1813, “ of which suppression or destruction, there cannot be a doubt that said Relf was guilty.” That by reason of such malicious proceedings, and holding the petitioner up to the country as a false and malicious libeler, he has sustained damages in the sum of fifty thousand dollars, for which he prays judgment. The defendant in his answer admits the institution of the suit for libel, but denies the malice ascribed to him. He then assumes the character of plaintiff in reconvention, and avers that the matters contained in the petition filed in the present suit, are false, scandalous accusations ; uttered, and placed on the files of the court, with the malicious intention of injuring his fair fame, and depriving him of the good will and respect of his fellow citizens, by means of which he has been endamaged twenty thousand dollars, for which he prays judgment and a trial by jury. To this petition in reconvenlion .the plaintiff rejoins, and sets up a plea of res judicata and justification. The case was submitted to a jury, who, after hearing much verbal and documentary evidence, during a session of two days, pronounced a verdict for defendant in the principal [308] suit, and in favor of the plaintiff in refeonvention for one dollar damages. The court rendered judgment in pursuance of the verdict and the plaintiff appealed. The language employed in setting out the plaintiff’s case, should comport with the dignity of the law, and the respect due to the administration of justice. The petition must not contain any insulting or impertinent expressions. Our attention is first drawn to the extraordinary language used by the plaintiff in setting out his cause of action, and we cannot but regret that he had not observed greater circumspection in the choice of his terms. The Code of Practice, article 172, requires that “the petition must contain a clear and concise statement of the object of the demand,'as well as of the nature of the title, or the cause of action on which it is founded.” “It must not contain any insulting or impertinent expression,” Hurried by passion or zeal, men often utter expressions in common speech which the dignity of the law and the administration of justice, altogether exclude from the records of courts. Hence the legislature has wisely imposed restraints upon the license of language, in which litigants are apt to indulge, and we doubt not that the able and learned judge, before whom this cause was tried in the first instance, would have Ordered portions 'of the petition to be stricken out, had they been properly presented to his notice. Two bills of exceptions were taken by the plaintiff at the ‘trial of the cause, the first of which is in the following words: “ Defendant’s counsel offered fin evidence a paper, proved to be an agreement of partnership between Clark and Chew & Relf, which agreement referred to a schedule of said Clark’s property, that was to be subject to said partnership, which said schedule was to be furnished by Clark, and annexed to said agreement,, Plaintiff required said schedule to be exhibited or said agreement to be rejected. The court overruled him, and thereto he takes this bill of exceptions.” Neither the paper purporting to, be- the partnership agreement, nor the schedule referred to are annexed, nor the object explained for which they were offered in evidence, or the reasons of the court for rejecting them. It is the duty of the party ex- * cepting, to place on the record all the facts and documents necessary to show the incorrectness of the opinion of the court a quo, to which he excepts, or this court will not say there is error therein. dama^eTfor de-famatmn of cha-abusive words or ^s^eLd^n setting out the cannot be made mandln^conl vention for dam-damages claimed dístinctPand mi-connected with those demanded by the other. de®“tnd1vl!ere a convention for up,ungrounded 011 th® sianderous epithets and yords contained Ind the pontiff joinflssue with the defendant aUegedinreoon-vention, the aetion may be maintained, and the plaintiff cannot afterwards have the recon-mand stricken [309] It is the duty of the party excepting, to place on the record all the facts and documents necessary to show the incorrectness of the opinion to which he excepts, or this court will not be able to say that any error has intervened. In this second bill of exceptions the plaintiff “ moved to correct, to strike out the reconvention of the defendant, and that the same should not go to the jury, because it was not a case in which, by law, a reconvention, on the grounds set forth in the defendant’s answer and petition, could be sustained ; the court refused to order the same to be stricken out, and permitted the same to go to the jury, whereupon the plaintiff’s counsel excepts,” etc. By the Code of Practice, article 375, it is provided, that “ in order to entitle the defendant to institute a demand in reconvention,, it is requisite that such demand, though different from the main action, be nevertheless, necessarily connected with, or incidental to, the same; ou en soit une suite, ou une dépendance nécessaire : As where the carrier sues for freight and the consignee reconvenes for the amount of the damages sustained by the goods in their transportation, there the connexion between the claims of the parties is plain and may be adjusted in a single suit; but in the cause now under consideration, the plaintiff claims damages for defamation of character and detention, by a suit brought against him, which prevented him from leaving the state, for the transaction of his business abroad; and in setting out his cause of action, uttered the words which became the basis , . ’ . . . , , . of the plaintiff s suit m reconvention, so that the damages claimed by one party are distinct and unconnected with the damages claimed by the other. Nevertheless, as the plaintiff had justified himself, and ioined issue with the defendant, upon the matters alleged in J , , , r . , ,, ° the reconvention, we think the action may be well enter-tajned by the court, upon the basis where the parties chose to place it; and this, we suppose, to have been the true reason why the district judge refused to order the plea of reconvention to be stricken out. -fact the court rayely interferes with the finding of an impartial Our attention is next drawn by counsel to the considera. tion of the testimony and documents coining Up with the record, and the conclusion which the jury have drawn from them» Here our duty requires of us little else than to approve what has been done, for this court rarely interferes ^Ie finding of twelve impartial men, on matters of fact, and still less where the jury are called upon to assess the . , . , . 1 . . . , amount of damages, m which a party might imagine himself . aggneveu. This principle has prevailed through the decisions of this court for a senes of years, and after a full examination of the testimony before us, we see no reason to depart from it on the present occasion, * We thmk the decree of the court ought tti be affirmed, It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed,' with costs.