Feb 1854. V. ALBANY, der, and Libels. 1 Com, Di. tit. action upon the cafe. (G. 4.) Cro. Eliz. 486.* Cro. Jac. 39.† 8 Cro. 199. These cafes Robert Lyle all turn on the general principle, that the git of the action Ifaac Clafon. muft be stated in exprefs terms, for generals will not do. In affault and battery, profecutions for confpiracy, &c. the fame rule holds. The prefent action is for damages to com Hall v. Hennedy + Kellan v. Manesby. penfate for an injury fuftained in the opinion of others. If Smart Dr others knew not of the libel, no injury could have been fuf Faidale After verdict, its no tained. Hicks' cafe Hob. 215. Poph. 139. S. C. Barrow v. bei galleged to Lewellin Hob. 62. Edwards and Wooten 12. Rep. 35. be" in the hearing" of any one, in an ac no cafe to ar ment. Harifon and Hamilton contra. The fecond count ftates tion for words that the letter was fent to France open. A publication may ret the judg- therefore be prefumed, especially, as by fuffering the judgment to go by default, and an enquiry to be executed, the defendant has acknowledged a caufe of action. On this reafon the latter part even of the first count may be rejected as furplufage, and the first allegation of publishing held to be confeffed. It is allowed that by the English law a verdict would have cured the objection, a queftion, however may be made, whether the diftinction between verdicts and defaults, established by the English code is known to our jurifprudence. Our act of amendments and jeofails extends to judgments by confeffion, nil dicit and non fum informatus. Perhaps then it may be confiftent with our principles to fay that on a default the rule is the fame. It is not law to fay the mode in which a libel is made known ought to appear on the declaration. That it was published is enough. So in affault and battery, that he affaulted and beat, without the addition of knives, ftaves, &c. is well. Saying he publifhed is, therefore, faying the libel was made known. Befides, the fuit itself fhews it has been communicated. The expreffing in the count that it was made known to others, In that cafe is fuperfluous. Bell v. Stone 1 Bof. and Pul. 331.* At all to a third per- events, the fecond count states a poffible publication to the ed in the decla- perfon by whom fent, and we are entitled to a venire the letter was ion, and fo flat ration. de novo. But it is strange to say the letter was not published, when the very cafes adduced, by the counsel for the defendant, shew an indictment would have lain. The mere writing libellous words gives a right of action to the party against Feb. 1804. whom it is written. On the execution of the writ of inqui- ALBANY, ry, the plaintiff might have abandoned his first count, and proceeded on the fecond; this, therefore, the court may now well intend to have been done. Livingston V. Rogers • Collins v. Gibbs. See ante Hallett aud Troup in reply. It is not pretended that after judgment by default, a motion in arreft of judgment may not be made, 2 Bur. 899.* If a libel, or flanderous word reach only the ears or eyes of the perfon libelled or flandered, no action lies. If a man after receiving a libellous letter, makes it known, he is the publifher, and volenti non fit injuria. To Bowne. the authorities cited we may add 1 Mod. 58. Lake v. King. In addition to this, there is no rule better established, than that where a declaration contains good and bad counts, and a general verdict is given, the judgment must be arrested; because it is not known to which the verdict can be applied. Per curiam delivered by Kent J. I'agree with the counfel for the defendant, that the first count is to be confidered, when taken together, as ftating no other publication than the fending a letter' fealed up from the one party to the other. A letter is always to be understood as fealed, unless otherwife expreffed, and the law is too well fettled to be now shaken, that fending a letter is no publication ont which to ground a private fuit. The bafis of the action is damages for the injury to character in the opinion of others. This cannot arife but from publication. A criminal profecution for fending a libellous letter is not founded on publication, but on the inducement which it produceth to a breach of the peace. The provocation is the fame in the breast of the party libelled, whether the libel be or be not published the world. The first count, therefore, does not state caufe of action, and the damages being general, the judgment must be arrested, unless the plaintiff wishes for a writ of inquiry de novo which he is entitled to, on payment of cofts agreeable to the decifion in the cafe of Hopkins v. Bedle. to a John R. Livingston against William Rogers. THIS caufe came before the court on three feveral motions, which the counfel upon the argument agreed fhould + Hick's cafe Poph. 139 5. C. in Hob. 215 Hob. 62.12 Co. Edwards and Woften, Cro. This is the libel is a crime. the offence Its falfity is not reason why a • Ante 347 In affumpfit on mutual pro mifes they must Feb. 1804. Livingston V. ALBANY, be taken, and confidered together. The first was a motion by the defendant in arreft of judgment. The fecond, one by the defendant alfo, for a new trial on the ground of a difcovery of evidence. The third, by the plaintiff, for leave to amend his declaration, by increasing the damages laid, so as deciaration as to cover the extent of his demand. be laid in the concurrent. if itated to be "afterwards to wit,ou the The decifion of the court was confined to only the first and third motions; and, as it embraces all the points relied on fame day it is by the counsel, it is unneceffary to give the arguments uied. In fupport of the motion in arreft they relied on two reafons; bid, and the promife a nu- 1ft. That the feveral affumpfits in the three first counts of the declaration (which was on a stock contract) were If the court of Void, for want of confideration. errors award a venire de novo, 2dly. That there was no record in the office, to warrant it must be fued the circuit record, by virtue of which, the trial was had. out to warrant a fecond trial. The counts complained of, ftated the agreement to deliif the caufe is ver and receive the ftock, and that in confideration the plainit is a defect of tiff had, at the defendant's request, promifed to perform his tried without, record, not a mendable, and part, the defendant afterwards, to wit, on the fame day pro. fatal in arrelt of judgment. mifed, &c. But a motion may be made Per curiam delivered by Kent J. This is a cafe of mutufor an award al promifes, where the one is intended to be the confideraawarded. The tion for the other. It is a well fettled rule, that in fuch cases, of the venite court of errors rity to award a this court. Bull. N. P. 1 Bac. Abr. 257 has not autho- the promifes must be ftated to have been made at the fame venire out of time.* Otherwife, the one antecedently made will be without confideration, and confequently not fufficient to fupport Efp. D.132 the other. The queftion here is, whether a valid promife is 146, 7, Hob. 89 laid, on the part of the plaintiff, fo as to form a confideration (n)in Mar. new for that on the part of the defendant. The cafe in Hobart ufes the ftrong language, that the promises must be at one inftant, or they are nude pacts. It was once held, in Howlett's cafe, that to lay the defendant's promise, afterwards on the fame day, was fufficient; because the court would not allow cdition, Cro. Eliz. 137. Kirby v. Cole. † Latch 150 of any divifion in a day. But in other respects that cafe is not altogether applicable. There the defendant's promise was in confideration of an antecedent fale and delivery in part; and the point advanced, of not allowing a divifion in 4.3 D & E 653 a day, is repugnant to the cafe of Cooke v. Oxley‡ It was in up Feb. 1804 V. Rogers. * Hutton 84 2 Leon, 111. Vide a fo Cro. Eliz. 282 that decided, that if one party has till a different time of the ALBANY, fame day to affent to the agreement, the other party is not held to his prior promife, and the promises are nuda pacta. Livingon It is clear, therefore, from this laft decifion, and from the reafon of the thing, that mutual promises, where one is the confideration of the other, must be made not only on the fame day, but at the fame time: they must be concurrent engagements. The plaintiff's promife is here ftated to have been made at the request of the defendant. If, instead of a naked promise, the plaintiff had, at the defendant's requeft done an act, which was either a damage to himself or a benefit to the defendant, it would have been fufficient to have fupported the defendant's promife. An affumpfit founded on a paft confideration of beneficial fervice rendered to the defendant at his request, is good. Such are the cafes of Franklin v. Bradell,* Church v. Church, and Stile v. Smith. The reafon that a paft confideration, be ; Ray 260 neficial to the defendant, must be laid to have been done on request is, that it is not reasonable, that one man should do another a kindnefs, and then charge him with a recompenfe. This would be obliging him, whether he would or not, and bringing him under an obligation without his concurrence. In many cafes a requests may be implied from the beneficial nature of the confideration, and the circuftances of the tranfaction. But in the present cafe the plaintiff's who has colpromise being laid to have been made upon request, gives it on the fubject of affum ptions no validity from that circumftance; for the request alone laid upon recreates not, of itself, any confideration. In addition to the Tet. See alfo request, there must be something made or done between the Hob. 106, parties, beneficial to the one, or onerous to the other. There muft either be a confideration executed, or executory. Even one executed will do if laid to have been done upon request. The plaintiff's promife in the prefent cafe can be valid only because made in confideration of the defendant's promise; and if the latter was not made at the fame time, but at a fubfequent period, the plaintiff's promife was without confideration and void. I am of opinion this is the juft and neceffary conclufion in this cafe; for the promises are not laid as concurrent, but as made at different times. The cafe of $ See 1 Saund. 264 note I by William S. rjt. lected the law Fenb, 136. & Feb. 1804. Livingston V. • 2 Stra. 933 ALBANY, Hayes v. Warren* I regard as perfectly in point. That was an action on the cafe upon promises, and after judgment by default and entire damages, it was alleged, in error from the common pleas to the King's bench, that on the fourth count, which was for work and labor done, the confideration was laid as paft and executed, and not to have been done upon request. Although the work and promife were both laid on the fame day, it was held that it must be taken to be a past confideration, as it was stated that "poftea" he promised; and the judgment was reverfed. The work and labor here were beneficial to the defendant, but not being laid to have been done upon requeft, the court would not declare it so. They seemed however, to doubt whether a request might not be inferred from fome other expreffions in the count, and rather intimated, that had the judgment been after verdict, the request might have been inferred. But there appeared to be no doubt, that the defendant's promife, by being laid as being made afterwards, although upon the same day, was to be deemed fubfequent, fo as to render the plaintiff's act, a paft and executed confideration. In a cafe in +Pillans v. Burrowst this decifion is pronounced by Wilmot J. to be Van Meirof. 3 abfurd. It was not, however, on the ground that the confideration was not justly deemed as executed, but because, in his opinion, according to the cafes I have mentioned, a past beneficial confideration, with circumftances to imply a requeft, was fufficient to fupport the promife. The cafe, therefore, for the purpofe that I cite it, ftands unimpeached, and is conclufive on the queftion. If we confult the precedents of declarations upon mutual promises, they uniformly state the promises to be concurrent; that when the plaintiff had promifed, the defendant in confideration thereof then and there affumed upon himfelf. From hence I conclude that the promifes in the three first counts of the declaration, are not laid as a fufficient confideration for each other; because they are not stated to have been made concurrently, or at the fame time, but at different times of the fame day. According to the decifion in Strange, and according to common understanding, the meanings of the expreffions “afterwards" and "at the fame time" are totally distinct. The Burr. 1671. 3 Mor. Va Me.142.2 Rich, C, P. 73 |