14 Wis. 663 | Wis. | 1861
By the Court,
Tbe judgment in tbis case must be reversed and a new trial granted. Tbe plaintiff’s counsel requested tbe court to instruct tbe jury tbat tbe proof on tbe part of tbe defendant was admitted, not to justify or prove tbe truth of tbe alleged libel, but in mitigation of damages; which was refused. Tbe court likewise instructed tbe jury tbat if they found that tbe defendant bad tbe conversation with tbe plaintiff set out in tbe libel, and published tbe libel
To a person desirous of tracing the changes and fluctuations of the law since the Earl of Northampton's Case, the following cases will be found of interest: Maitland vs. Goldney, 2 East, 426; Woolnoth vs. Meadows, 5 East, 463; Kennedy vs. Gregory, 5 Binney, 85; Davis vs. Lewis, 7 Term R., 17; Smith vs. Stewart, 5 Barr, 372; Skinner vs. Grant, 12 Vt., 456; Larkins vs. Porter, 3 Sneed, 681; Gazette Co. vs. Timberlake, 10 Ohio St., 548.
Judgment reversed, and a new trial awarded.
The defendant in this case published an article in which he said that the plaintiff had been charged with crimes in other places where he had formerly lived, and giving an account of an interview and conversation had between the plaintiff and himself upon the subject. To an action for libel he pleaded that he did have such an interview, and that all he had stated in the article was true. Upon the trial he introduced evidence amply sufficient to show, as the jury evidently found, that it was true — that is, not that the plaintiff had been guilty of the offenses mentioned, but that
Wherever any one should adopt this form of expression as a mere cloak to cover an insinuation of actual guilt, he should of course be held liable as though the assertion were directly made. But I cannot reconcile it with principle to hold him so liable who has honestly stated the mere fact that an accusation has been made by another.
The distinction between the two statements is very clearly pointed out in the case of McPherson vs. Daniels, notwithstanding the apparent disregard of it in a portion of the opinion of Bayley, J. So also in Bell vs. Byrne, 13 East, 554. In that case the defendant was charged in the pleadings with having published a libel stating that the plaintiff had been confined in England on a charge of high treason. It appeared in proof that the libel stated that the Irish Attorney General had said so. And the plaintiff was non-suited for the variance. It was conceded in the arguments of counsel on both sides, that if the defendant had been merely charged with publishing that the Irish Attorney General had uttered the libel, he could have justified by proving that he had uttered it. The judges very fully notice the distinction between stating that a fact had occurred and stating only that another had said so. Lord EllENBORough said: “ But I find that all through the publication it is given as the speech of the Attorney General, not taken upon himself to say that any such letter or fact did exist or had happened.” So Bay-ley, J., said: “ It is a very different thing to assert a fact as in the party’s own knowledge, and to say that another, whom he names, has told him so; the persons who hear the one must conclude that the party pledges his own knowledge of the fact, which in the other case he does not.” It is true the judges all say that either statement was a libel, but they added that it was a different kind of libel in the latter form, and open to a “ different defense.” After reading this case, I expected to find that the difference in the defense was that suggested in the arguments of counsel, and that where the defendant had only said that another had uttered the libel, he would justify by proving that it had been so uttered.