Cochran v. Butterfield

18 N.H. 115 | Superior Court of New Hampshire | 1846

Gilchrist, J.

A libel is a writing, picture, or other sign, and is so distinguished from slander, which consists in words spoken.

But he who by words causes another to write or paint the thing conveying the libellous matter, may be guilty, as if his own hand traced the lines.

It would, however, confound this distinction between the two offences of verbal and written slander, to charge him who speaks the words as the author of a libel, which another, of his own motion, composes and publishes from the materials thus furnished.

This action is against the defendant for publishing a libel in the “ Gleaner.” The evidence is, that he communicated orally some of the materials that were woven into the production by the witness, and that a letter supposed, upon evidence presently to be considered, to have been written by the defendant, furnished other materials. The letter might itself have been a libel, but a different one, no doubt, from that complained of in the action. Besides, if it were the same it is not proved.

Now this evidence comes entirely short of proving that the defendant published, or procured another to publish, any libel whatever in the Gleaner. It does not appear that he ever requested a libel to be composed out of the materials that he supplied, or that he expected, or had any cause of suspecting, that his communications would have been used for such a purpose.

The case bears no resemblance to that of The King v. Johnson, 7 East 65, where the defendant not only had previously requested the insertion of communications upon the subject of the alleged libel in Mr. Gobbet’s paper, but in one of the communications, recognized the preceding as having been published in that paper, and used expressions denoting that they had been sent for that purpose.

If, however, we are so to understand the case as to be allowed to suppose that there was other evidence compe-. tent to show that the defendant, in some way, instigated the composition and publication of a libel, having the features of that which was contained in the Gleaner, other questions arise.

1. There was no evidence competent in law to prove that the defendant communicated with the witness by a letter mailed at Mont-Vernon. His signature was not affixed, and competent testimony of one who had seen him write, or had other means of knowing his hand, was not produced, nor was the paper exhibited. The evidence must, therefore, be considered as if there were no such letter; and as the only connection between the defendant and some parts of the libel must have been through such a letter, it follows that he could not have originated or caused the libel proved.

2. That the defendant had libelled other persons, or threatened to do so, was not a fact proper to be proved in this action. The use, therefore, that the plaintiff was permitted to make of a paper, by which he had sought to establish that irrelevant fact, seems to be itself immaterial.

For the purpose of proving malice, it has been permitted the plaintiff, in an action of slander, to give in evidence other words spoken by the defendant, and against him. Merrill v. Peaslee, 17 N. H. 540; Rustell v. Macquiester, 1 Camp. 49. But no case is recollected in which the plaintiff; either to prove malice or to corroborate the evidence of the principal fact, has proved that the defendant has composed or published libels upon other persons. Cooke’s Laws of Defamation 148-9.

The evidence reported was insufficient to prove the publication of the libel by the defendant, and was incompetent in the particulars that have been pointed out. The verdict must, therefore, be set aside, and a

New trial granted.