Forward v. Adams

7 Wend. 204 | N.Y. Sup. Ct. | 1831

By the Court,

Sutherland, J.

The demurrer is well taken. It is conceded that the words do not impute an indictable offence; if true, the plaintiff would not be subjected by them to a criminal prosecution. The offence, if any, was an offence against the United States, and it is not shown that they have any statute applicable to the case; and the better opinion seems to be, that the court of the United States have no general common law criminal jurisdiction. 7 Crunch, 32. 2 Dali. 384, Opinion of Chief Justice Marshall in Burr’s Trial. 1 Gall. 488. 1 Wheat. 415. Dissertation on the Nature and Extentof the Jurisdiction of the Courts of the United States, by Mr. Du Ponceau. 1 Kent’s Comm. 311, 20. Sergt. Const, LaW) 262, 5.

The action is put distinctly on the ground that the words were spoken of the plaintiff as a public officer, and tended to his injury and disparagement in that character. The fatal objection to the action on this ground is, that it appears on the face of the declaration that the plaintiff was not in office when the words were spoken; but that the office itself being a special trust, and temporary in its nature, had expired about two years before the uttering of the slanderous words. In Sir Lionel Walden v. Mitchell, 2 Ventr. 265, the following dictum is imputed to the chief justice: “ That where a man had been in an office of trust, to say that he behaved himself corruptly in it, as it imported great scandal, so it might prevent his coming into that, or the like office again, and therefore was actionable.” The observation was not called for by the case, as the action was sustained on an entirely different ground. Also, in Yelverton, 153, it appears to have been held that an action could be maintained for the words, “ When thou wert a justice thou wert a bribing justice” for the same reason assigned in Yentris. Ch. J. De Grey, in delivering the opinion of the court in Onslow v. Horne, 3 Wils. 188, said: “ I know of no case where an action for words was ever grounded upon eventual damages which may possibly happen to a man in a future situation, notwithstanding what the chief justice throws out in 2 Yentr. 266. I think the chief justice went too far.” The authority of Chief Justice De Grey effectually disposes of these cases. But he is also supported by many analogous decisions. Thus, where an action is brought for words, (not actionable in themselves,) spoken of a person in a particular calling, or profession or employment, it must appear that he followed such profession or employment when the words were spoken. In Gibbs v. Price, Styles’ R. 231, the judgment was arrested because it was not averred that the plaintiff was a barrister at the time of the bringing of his action, the words having been spoken of him in his professional character. And in Carye’s case, Popham, 207, the words were spoken of the plaintiff as a counsellor of law; and it was said by Jones, justice, that it was not sufficient for the plaintiff to aver that he was eruditas in kge, but he ought to say that he was homo cinciliarius. He must shew that he sustained the special character in relation to which the words were uttered. In King v. Lake, 2 Ventris, 28, (which was also a case of words spoken of the plaintiff as a lawyer,) it was expressly stated that the plaintiff was bred up to the law, and practised it, and had many persons for his clients, and thereby got money and maintained his family, &c. 1 Vent. 50. Upon the strength of these and other cases, it is laid down in treatises upon this subject, that where an action is brought for words spoken of a barrister or physician, it must appear that he practised as such at the time the words were spoken; for otherwise, the words could not have affected him professionally. Starkie on Slander, 105. Bacon’s Abr. tit. Slander, 212, 13, 14, 15. So, if an action be brought for publishing words of a tradesman, concerning his trade, it must be ' averred that at the time of publishing them he was in trade; for if he were not at that time in trade, his credit could not be hurt by the words. Collins v. Malin, Croke’s Ch. 382. Croke Eliz. 273. Croke J. 222. These cases all admit this principle, for although the court in some of them refused to arrest the judgment, it was .upon the ground, that after verdict they would intend, from the general averment, (that the plaintiff had, for a long time preceding the day on which the words were laid, exercised the trade) that he continued to exercise on the day the words were published.

The ground of action in these cases is, that the party is disgraced, or injured in his profession or trade, or exposed to the hazard of losing his office, in consequence of the slanderous words; not that his general reputation and standing in the community are affected by them. It will be recollected that the words spoken, in this class of cases, are not actionable of themselves, but that they become so in consequence of the special character of the party of whom they are spoken. The fact of his sustaining that special character, therefore, lies at the very foundation of the action. On this ground, therefore, the declaration is bad.

It may be qestionable also, whether the words necessarily convey a charge of official misconduct. The terms bribing and hiring the Indians to sign the treaty, are evidently synonymous, and were intended to convey the same'idea: and if the treaty which they were by these means induced to sign, was a fair and and advantageous one for them, it may not have been a V1'°^ati°n of the official duty of the plaintiff, (when the peculiar character of the Indians is considered,) to have resorted to presents, or pecuniary inducements, to procure their assent to it. It is unnecessary, however, to express any opinion upon this point.

3 udgment for defendant upon demurrer.