« ForrigeFortsett »
notice charging on the defendants the publication of false statements; that said words published by them were in reply to, and commenting on, said notice ; that plaintiff, fer ten years, was known to many good citizens of Otsego county, and had the reputation there of a proud, captious, censorious, arbitrary, dogmatical, malicious, illiberal, revengeful, and litigious man, wherefore he was in bad repute; that by means of plaintiff being in such bad repute there, plaintiff would not like, and did not like, to bring action against defendants for words, &c., in the county of Otsego.”
I am obliged to concede that if the declaration be bad, then this plea must be also bad. My argument, therefore, is, under favor, that the plea is sufficient if the declaration be good.
First—the plea justifies the publication. But my learned adversary says that the attributes applied to the plaintiff in the plea are merely foibles. This is singular indeed, that PRIDE, alleged in this plea, is a weakness ; censoriousness is a fault; dogmatism, malice, and revenge are blemishes; and even illiberality and litigiousness are only foibles. Yet, in the plaintiff's declaration, mere want of generosity, or of kindness, or of the polish of the drawing-room, is an immorality and an offence.
In truth, the plea is more severe than the libel. The libel only charges the plaintiff with being known in Otsego county, or at most, with being unpopular there. The plea affirms that he is known there unfavorably as to all the points by which the esteem of his fellow-citizens could be conciliated.
The plea answers the inuendo, which is that the plaintiff is held in bad repute. Certainly no man need to wish his enemy a worse reputation.
But it is contended that the plea is bad, because it avers no acts of misconduct showing that the plaintiff deserved to be held in such bad repute. But the accusation is not of acts, but of repute, and must be proved true, not by specific acts, nor by conduct, but by repute. Proof of specific acts, offences, or errors, would not be allowed. (Briggs vs. Denniston, 3 J. C. R.; 11 Price, 225.) Suppose we had pleaded that the plaintiff had committed a crime, and thereby had forfeited and lost his character, or had pleaded acts showing a want of kindness, gentleness, and courtesy to his neighbors, such as denying them access to his beautiful grounds on the shore of the Otsego Lake, or in the forest where Leather Stocking held his retreat-should not we have been told that we had not accused the plaintiff of these acts in our libel, and should not escape from responsibility for what we had charged by bringing new accusations ?
I pass over the third plea, which is defended upon the same general grounds.
The second count of the declaration sets forth and insists upon three several libels. The first of these is as follows:
" Knowing what we positively did, and do, of the severe illness of the wife of Mr. Weed, and the dangerous state of his eldest daughter, at the time of the Fonda trials in question-regarding them as we do—the jokes attempted to be cut by Fenimore over their condition_his talk of the story growing up from one girl to the mother and three or four daughters—his fun about their probably having the Asiatic Cholera among them, or some other contagious disease, &c. &c, however it may have sounded to others, did seem to us rather inhu-Hallo there I-We had like to put our foot right into it again, after all our tuition. We mean to say that, considering that just the day before Mr. Weed had been choked by his counsel into surrendering at discretion to Fenimore, being assured by said counsel that, as the law is now expounded and adıninistered by the Suipreme Court, he had no earthly choice but to bow his neck to the yoke, pay all that might be claimed of him, and publish whatever humiliation should be required, or else prepare to be immediately ruined by the suits which Fenimore and Richard had already commenced, or were getting ready for him; considering all this, and how much Mr. Weed had paid and must pay towards his subsistence-how keenly Weed has had to smart for speaking his mind of him-we did not think that Fenimore's talk at this time and place of Weed's family and of Weed himself, as a man so paltry that he would pretend to sickness in his family as an excuse to keep away from court, and resort to trick after trick to put off his case for a day or two—it seemed to us, considering the present relations of the parties, most ungen - There we go again!"
We affirm, if your honors please, that this count also is bad, and that the words are not libelous.
The plaintiff seeks to make a case by the averment that inhu was meant for inhuman, and that ungen was meant either for ungenerous or ungentlemanly.
Now the inhumanity alleged is defined, and it was not inhumanity. It was at most only a want of magnanimity. The plaintiff took a default against Thurlow Weed, certainly under very extraordinary circumstances, but still he exercised a legal right, and that exercise, though it was not to be approved, was not inhuman.
The other inuendo is even more unfortunate. The plaintiff undertakes to tell the court what the defendants meant, and avers that they meant one thing or some other thing; but his object was to conclude the defendants by defining one meaning only. Suppose the court render judgment against the defendants, for what are damages to be rendered for denying to the plaintiff the generosity of a millionaire or the graces of polished life? Ungenerous or ungentlemanly—one or the other these defendants must have meant; but the plaintiff, although at liberty to choose, cannot determine between them. Either will sustain an action, he thinks, and therefore either will do. Like Major Macheath, ini
the Beggar's Opera, when his first wife appeals to him, “ Am I not your lawful wife,” and his newly married spouse says, "Shall I not claim mine own,” the Major throws a hand to each and sings, “How happy could I be with either."
But suppose we adopt the former and understand the libel to charge the plaintiff with having acted ungenerously. Generosity is not a duty or moral obligation. We are required to be just, not to be generous. No action will lie for accusing a man of being deficient in a virtue that the law does not expect a good citizen to possess. Try the other meaning, ungentlemanly. The law does not expect or require men to be gentlemanly, or regard them as such ; or at least before a plaintiff can receive damages for being charged with a want of gentleman-like conduct, he must aver that he is a gentleman; and this declaration contains no such averment. Now suppose a chimney-sweep had brought an action on such a charge, could it have been sustained ? Certainly not; and yet there is one law and rule of justice for all classes and for all men.
If this action be maintained it will be the first instance in which it has ever been adjudged in this country that it is libelous to deny to any and every man the character and qualities of a gentleman and a man of magnanimity. Then we can hereafter no more write of the living than of the dead, except to praise and magnify them. I leave it to your honors whether this would promote either good principles, good morals, or good manners.
I pass the second libel contained in this count which is a repetition of the words complained of in the third count.
The last libel complained of is as follows:
" Fenimore (meaning the said plaintiff) closed very effectively with an appeal for his character, and a picture of the sufferings of his wife and family—his grown-up daughters often suffused in tears by these attacks on their father. Some said this was mawkish, but we consider it good and think it told. We have a different theory as to what the girls were crying for, but we won't state it, lest another dose of Supreme Court law be administered to us," (thereby meaning that the said plaintiff, by some unworthy and disreputable conduct, was the cause of affliction and tears in his family.)
I admit that it was not in the most refined taste thus to bring the plaintiff's wife and children before the public. But it was not the defendants who committed this impropriety. It was the plaintiff himself who brought those respected ladies before the public, and in a speech full of bitterness and reproach paraded them in their sadness and “suffused with tears” before the jury at Ballston Spa, to swell a verdict by their agony and tears.
They accomplished the purpose for which the husband and father brought them upon the stage so unfit for their action. The verdict rose in consideration of their grief and sorrow to the required amount—it was paid by the defendants, and they gave their report of the trial as they lawfully might. Look at that report, and say whether it is not expressed with manly courtesy and delicacy that had not been deserved by the plaintiff. Never was man so injured, more tolerant, more forbearing in the exercise of a just retaliation. And what is complained of? Why, that the defendants said they had a different theory to account for the alleged grief of the young ladies. Could any more trivial complaint engage the attention of this grave tribunal ?
Well, if this be calumny, who is calumniated ? If the calumny be injury, who suffers ? Certainly not the plaintiff, but the ladies.
But my adversary insists that the words are libelous because the defendants decline to give their theory through fear of a libel suit. True, but the defendants say at the same time, that, as the law is administered, the truth, however harmless, is equally libelous with false and malicious accusations, so they did not mean to confess that their theory would have justly involved the consequences of a libel suit.
And what is the sting found in this harmless jeu d'esprit. That the defendant meant to impute to the plaintiff some unworthy action or misconduct whereby his wife and children were afflicted. This inuendo must be rejected unless it be the clear and only legal meaning of the words published. Now the words would bear equally well an entirely different explanation. May it not have been some unkindness of the father, neither unworthy nor disreputable, that grieved his children—might it not have been some domestic misfortune or calamity ? Suppose it were disappointment in love? Certainly the publication of such a theory would not have been libelous, and if the publication would not, declining to publish it would have been innocent: and if it afforded any cause of action the action would have accrued to the ladies and not to their father. I dismiss here the consideration of this libel, and revert to the pleas interposed in answer to this count. The plea to the first of the libels in this count is in substance as follows:
“ Defendants by leave, &c., say that plaintiff ought not to maintain action, &c., because they say defendants were editors, &c., and the words constituted part of an article giving an account of plaintiff's suit against defendants, tried at Ballston Spa, on the 9th Decem
ber, 1842, and aver that on such trial plaintiff, in presence of Judge Willard, &c., spoke words (substantially same as alleged.]
“ Defendants aver that at the time of such trial, Weed's wife and children were sick, not of cholera, &c., and that Weed was in consequence detained, these things being known to plaintiff.
Defendants aver that previous to said speaking, plaintiff had brought three actious against Weed, one against Hoffman & White, and two against all-in one of which (Weed, defendant) plaintiff recovered $55 on 13th April, 1842; in another against all, $87 on 14th September, 1842; another noticed for trial as above; that plaintiff bad on 1st December, 1842, sued out three writs against Weed, White, &c, all prosecuted by R. Cooper, Attorney, &c., who had them in his possession, and shewed
them by plaintiff's direction to H. Hammond, Counsel for Weed, who insisted that Weed should compromise, &c.; who did submit matters between himself and plaintiff to D. Cady, and agreed to sign and publish what he should direct ; all which was known to plaintiff when he addressed jury, &c.; wherefore defendants published. " Defendants ready to verify, and pray judgment.
This plea is good and sufficient because it justifies all the matter contained in the libel. The counsel complains that the sums paid by Thurlow Weed are small and inadequate to justify the allegation that Weed contributed essentially to the plaintiff's subsistence. They may seem trifling sums to him, but this is a natural difference of estimate between the party who paid and the recipient. Again, the plaintiff's counsel says that it is not shown that his remarks on the trial at Ballston were impertinent. But it is shown they were wilfully false. And falsehood is impertinent in every action, in every court, in every relation, and in every place.
The plea to the last libel is in substance as follows: " 6th Plea. Fo. 80–89.-Defendants by leave, &c., say that plaintiff ought not to maintain action, &c., because they say that defendants were editors, &c., and aver that at a circuit court on 9th Deceniber, 1842, at Ballston Spa, in a suit between them, plaintiff addressed the jury, and did say words [to same effect as charged], and defendants published a true account. Defendants aver that it is not true that the family were suffused in tears for reasons stated by plaintiff, but say that before that time plaintiff had commenced various actions on frivolous grounds : on 1st July, 1840, procured indictment against J. W. Webb-on 1st November, 1842, commenced three actions against T. Weed -on 1st December, 1842, two against Weed, White & Hoffman, and one against Hoffman & White; and had, on 1st December, 1842, sued out five capiases against Weed. And these things being known, &c., plaintiff fell into disesteem, &c.; and these proceedings and disesteem were, to wit
, on the day plaintiff addressed jury, known to his wife and family—and his wife and daughters and family were for this cause grieved, as well they might; wherefore defendants published."
This plea is a sufficient answer. It shows a theory why the plaintiff's wife and daughters were grieved and afflicted, and wept. The counsel complains that we have not adopted his explanation. It is enough that we set forth our own and are obliged to prove it, and must stand or fall by the plea at the trial. The learned counsel says that the facts we have assigned are not adequate for such deep domestic affliction. We reply that the question is not whether these respected ladies rationally