N. Y. Superior Court-Stanley v. Webb.

witness had given the testimony substantially as stated in his affidavit, still that part of the publication would not have been privileged. But this was no trial. The publication in question purports to give the substance of two complaints, made at different times, and on entirely different grounds. The latter complaint, made by the defendant in the first complaint against the plaintiff in this suit, and a police officer, charging that they had offered for a bribe to have the first complaint dismissed; the plaintiff in this suit having been the prosecutor in the first complaint. The one complaint was no answer to the other. Each, would be sustained, if sustained at all, on dif ferent evidence; and for aught that appears, if the charges were. true, both parties must be convicted. It is in no sense a trial-a fair, correct and impartial account of which, should carry forth to the world without comment, the testimony which rebutted, as well as that which sustained the complaint, the direction of the court and the verdict of the jury.

We come now to the most material and important question, whether the publication of such preliminary ex-parte proceedings before a magistrate is privileged. Lord Hardwicke remarked, 2d Atkyns, 267. "Nor is there any thing of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally head; and Lord Ellenborough, in an action for publishing an account of preliminary proceedings before a magistrate in King v. Fisher and others, 2d Campbell, 563, in an action for publishing an account of preliminary proceedings before a magistrate, says: "Jurors and judges are still but men; they cannot always control feeling excited by such inflammatory language. If they are exposed to be thus warped and misled, injustice must sometimes be done. Trials at law, fairly reported, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged. The benefit they produce is great and permanent, and the evil that arises from them is rare and incidental. But these preliminary examinations have no such privilege. Their only tendency is to prejudge those whom the law still presumes to be innocent, and to poison the sources of justice. It is of infinite importance to us all, that whatever has a tendency to prevent a fair trial should be guarded against. Every one of us may be questioned in a court of law and called upon to defend his life and character. We would then wish to meet a jury of our countrymen with unbiassed minds. But for this there can be no security if such publications are permitted."

In the great case of Duncan v. Thwaites, et al., 3 B. & Cresswell, 556, this right was fully considered. The defendants, the proprietors of the London Morning Herald were sued for a similar publication. They plead amongst other things that the supposed libels were nothing more than fair, true and correct reports in the said newspaper called the Morning Herald, of proceedings which took place publicly and openly before the magistrate at the public police office at Bow

N. Y. Superior Court-Stanley v. Webb.

street; and they insisted that they were privileged to make such publication.

The unanimous decision of the court was pronounced by Chief Justice Abbott, who, after remarking that the case had been argued with much learning on both sides and that all the decisions and opinions of judges that have any bearing on the question had been quoted, adds. "It may be sufficient to say of them, that there is not any one plainly supporting the affirmative of this proposition, and that there are many expressly declaring the negative. This court has, on more than one occasion, within a few years, been called upon to express its opinion judicially, on the publication of preliminary and ex-parte proceedings; and has on every occasion delivered its judgment against the legality of such proceedings, as was done by Mr. Justice Heath, in the year 1804, in the case of the King v. Lee, 52 Espinasse, 123. Other judges have delivered opinions to the same effect; and it is well known that many other persons have lamented the inconvenience on the mischievous tendency of such publications. They were within the memory of many persons now living: rare and unfrequent, they have gradually increased in number, and now are unhappily become very frequent and numerous. But they are not on that account the less unlawful, nor is it less the duty of those to whom the administration of justice is entrusted to express their judgment against them." Mr. Starkie, refering to some of these cases says: The publication also, of ex-parte proceedings in criminal cases is not only not privileged by the law, but is regarded as a great misdemeanor." 1 Starkie on Slander, 265; Holt's Law of Libel, 172 and 173, and notes, American edition; Cook's Law of Defamation, 45; Vol. 37, Law Library.

66

I have thus run over a few of the prominent cases relative to privileged publications, and in doing so have preferred to quote the language of the decisions as uttered by several of the distinguished men, who during the last half century have shed light and lustre on English jurisprudence. It is believed, that no one, who will carefully examine the subject, can fail to perceive that under the enlightened administration of the law, the freedom of the press has not been curtailed, but gradually enlarged; at the same time that the circle of protection to private character has been materially increased. Under the recent statute, 6 & 7 Victoria, c. 96, § 6, the truth may be given in evidence in criminal prosecutions for libel, if the same was published with good motives and for justifiable ends; so that there, as here, the press is free to publish, being responsible, as man is to his fellow man in the ordinary affairs of life, for the injuries which he wantonly or maliciously inflicts.

We are not aware that the question presented for our consideration has ever before arisen in this State, but the authorities and the arguments which sustain them, and which we have in part referred to therein, are too strong to be resisted, and we must give them our entire assent. It is our boast that we are governed by that just and salutary rule upon which security of life and character often depends

N. Y. Superior Court.-Bennett v. Williamson, etc.

-that every man is presumed innocent of crimes charged upon him until he is proved guilty. But the circulation of charges founded on ex parte testimony, of statements made-often under excitement-by persons smarting under real or fancied wrongs, may prejudice the public mind, and cause the judgment of conviction to be passed long before the day of trial has arrived. When that day of trial comes, the rule has been reversed, and the presumption of guilt has been substituted for the presumption of innocence. The chances of a fair and impartial trial are diminished. Suppose the charge to be entirely groundless. If every preliminary ex parte complaint which may be made before a police magistrate, may, with entire impunity, be published and scattered broadcast over the land, then the character of the innocent who may be the victim of a conspiracy, or of charges proved afterwards to have arisen entirely from misapprehension, may be cloven down without any malice on the part of the publisher. The refutation of slander in such cases follows generally its propagation at distant intervals, and brings often but an imperfect balm to wounds which have become festered and perhaps incurable.

It is not to be denied that occasionally the publication of such proceedings is productive of good and promotes the ends of justice. But in such cases the publisher must find his justification not in privilege, but the truth of the charges. The necessity of this salutary rule is further evident from the fact that of these complaints a large portion are never prosecuted even to trial, much less to conviction.

It would be difficult to point out a complete remedy for the evil which exists with us as in England. The law, which we consider well settled, and which we repeat and lay down in this case, that the publication of such preliminary ex parte proceedings is unauthorized and not privileged, if observed and enforced, would do something. A sound public opinion would do more-an opinion which should encourage that homely doctrine of diligent attention to one's own affairs, and of thinking no evil of others except as a knowledge of such evil is forced upon us by business or by duty-an opinion which frowns upon those who pander to and nourish with daily food that morbid curiosity which finds its aliment in the frailties and vices of our race. Demurrer overruled with costs.

JAMES GORDON BENNETT against AMOS J. WILLIAMSON and WILLIAM BURNS.

LIBEL-DEMURRER TO PLEAS-DECLARATION-WANT OF CAUSE

OF ACTION.

The defendants, proprietors of a weekly paper, published of the plaintiff as follows:-" Sometime about the year 1834, there was a Sunday paper in this city termed the Sunday Courier,' which was started by John Tryon. This establishment Tryon sold to Bennett, who gave his note for the purchase money, and which note Tryon paid away without recourse to himself. The man who took the note was at the time well off, the money was VOL. VIII. 28

N. Y. Superior Court.-Bennett v. Williamson, etc.

of no consequence to him, and Bennett got possession of the types, presses, &c., but he not having ability to make a Sunday paper go, it died off. When the note became due, Bennett could not pay, and begged the holder of the note to wait. The man did wait, and some years after, Bennett having got on, the note was sued, but Bennett pleaded the statute of limitations, and got off scot free."

The defendants pleaded, Ist. Not guilty. 2d. That the said supposed libel was not published maliciously or falsely, but that the same was true in substance and fact; and 3d. That it was not published maliciously, and that the plaintiff has not suffered any damage whatever. Demurrer to 2d and 3d pleas.

Held, that the second plea was good, and that the 3d plea was bad; but that the declaration showed no cause of action; the words not being libellous per se, and that upon the whole case there must therefore be judgment for the defendants.

THIS was an action for a libel. The alleged libel appears in the opinion of the court.

The defendants pleaded, 1st. Not guilty. 2d. That the supposed libels in the declaration mentioned, were not, nor was any or either of them published by the defendants or either of them maliciously or falsely, but that the same and the several matters and things therein contained and stated, are and each of them is entirely true in substance and fact-verification. 3d. That the said supposed libels in the declaration mentioned, were not, &c., published by said defendants or either of them maliciously, and that the said plaintiff hath not by means of the said publication, &c., by said defendants, suffered any damage whatever-verification.

Demurrer to second and third pleas. The grounds of demurrer sufficiently appear in the opinion of the court.

Joinder in demurrer.

B. Galbraith, in support of the demurrer, made and argued the following points:

I. A plea in bar must either traverse, or confess and avoid the cause of action laid in the declaration. Stevens on Pleading, 51; 1 Chitty on Pleading, 492; Billingham v. Mynors, Cro. Eliz. 153; Johns v. Gittings, Cro. Eliz. 239.

II. It is not a good plea in bar of an action on the case for a libel to plead that the libel is true in substance and fact. Cook v. Cox, 3 Maule & Selwin, 110; Wright v. Clement, 3 Barn. & Ald. 503; Saloman v. Lawson, 8 Q. B. R. 823; Duncan v. Thwates, 3 Barn. & Cress. 556; Flint v. Pike, 4 Barn. & Cress. 473.

III. A plea in bar of an action on the case for a libel must state issuable facts. Holmes v. Catesby, 1 Taunt. R. 543; J'Anson v. Stewart, 1 Term R. 748; Newman v. Bailey, 2 Chitty's R. 665; Hickenbotham v. Leach, 10 M. & W. 361; Jones v. Stevens, 11 Price's R. 277.

IV. A party by demurring confesses nothing but that which is well pleaded. Jones v. Stevens, 11 Price, 277; Wheeler v. Haynes, 9 Ad. & Ellis, 286; Evens v. Harlow, 1 Davison & Merivale, 507.

Samuel Owen and M. S. Bidwell, for the defendants, contra. First. Upon the demurrer to the second plea there should be judgment for the defenants.

N. Y. Superior Court.-Bennett v. Williamson, etc.

I. If the alleged libels were not published maliciously the plaintiff has no cause of action against them.

That the publication was not malicious is, therefore, a good substantial defence to the action.

This defence may be shown by a special plea. Brooks v. Montagu, Cro. Jac. 90, and is not demurrable as amounting to the general issue. Dunn v. Winters, 2 Humph. Rep. 512. This will appear also from the following considerations:

1st. The plea is not a general denial of the allegations in the declaration; it is not constructively and in effect the same, as pleading the general issue. Steph. on Pleading, chap. I., § VI., rule II., p. 459. And see Maggev. Ames, 4 Bing. Rep. 470.

2d. It does not deny an allegation which the plaintiff's under the general issue would be bound to prove at the trial. 1 Chitty's Plead. 557, 6 Am. ed.,) Bank of Auburn v. Weed, 19 Johns. R. 302; Rex v. Woodfall, 5 Burr. R. 266, 267; Starkie on Slander, 240, 15 chap. (1 Ed.); Root v. King, 7 Cow. 613; Usher v. Severance, 2 App. R. 16,

17.

3d. It gives color as it admits a prima facie case, and raises a question of law. Myers v. Morse, 15 Johns. R. 426, 427; Graham's Prac. (2d Ed.) 237, 238; Archibald Plead. 195, 196; Carr v. Hinchliffe, 3 B. & C. 547; Maggs v. Ames, 4 Bing. R. 470.

4th. As this defence is matter of justification or excuse, regularly by the common law, it must be pleaded specially. Co. Litt. 282, b. 283. Com. Dig. Pleader, (E. 15.)

But if it did amount to the general issue, a demurrer would not, on that account, be proper; the plaintiff's remedy would be a motion to the court, as it presents a question on which the court are to exercise their discretion. Warner v. Warnsford, Hob. R, 127; Ward and Blunt's Case, 1 Leon. R. 178; Nicholls v. Jeanes, Bac. Abr. Pleas, G. 3, 4 vol. p. 63; Whittlesey v. Wolcott, 2 Day's Rep. 431; Aylesworth v. Harrison, Winch's Rep. 20; Allen's Čase, 2 Rolls' R. 140. Upon principle, therefore, as well as upon authority, the plea is not bad on demurrer as amounting to the general issue.

II. It is not necessary for the defendants to set forth particular circumstance to prove that the publication was not malicious, that would be pleading evidence; the fact to be pleaded was that the publication was not malicious; the circumstances to prove this fact are to be given in evidence, not pleaded. Church v. Gilman, 15 Wend. R. 656, 665; Daniels v. Hallenbeck, 19 Wend. R. 410, 411; Sanderson v. Colman, 4 Mann. and Gr. 221.

This is the general rule, and must apply in an especial manner, in the case of a mere negative plea.

The plea, therefore, if it contained nothing else, would be a good bar to the action.

III. The other allegations in the plea are a bar to the action. There can be no doubt, but that they form in substance a good de

fence to the action.

Is there a fatal defect in form for the causes stated in the demurrer ?