12 Johns. 475 | N.Y. Sup. Ct. | 1815
This is an action for á libel, published by the defendant, against the officers of Colonel Lockwoodh regiment, of whom the plaintiff is averred to be one. But the. publication has no particular or personal application to the plaintiff. The present is a motion in arrest of judgment, on the ground of the generality of the libel.
It is a general rule, that' no writing whatever is to be deemed a libel, unless it reflects upon some particular person. (Hawk. P. C. b. 1. ch. 73. s. 9.) A writing which inveighs against mankind in general, or against a particular order of men, is no libel, nor is it even indictable. It must descend to particulars and individuals, to make it a libel. (3 Salk. 224. 1 Ld. Raym. 486.) These are general rules; but their application to particular cases often presents difficulty. An action for a libel is for the purpose of recovering damages for an actual injury proved to have been sustained, or which the law presumes that the party libelled has suffered. It is a private remedy for an individual injury. If the libel is either vágue and uncertain, or has no personal application, it cannot fairly be presumed that any damages have been sustained. Although a jury, in assessing damages, may take into view other considerations of a more public nature, yet they are merely collateral to, and not the basis on which the- action is founded. Where the object is public example, and the punishment of the.party, the more fit and appropriate remedy is by "indictment. If the plaintiff, in this case, had averred, and proved any special
. Spencer, J,, and Yates, J., were of the. same opinion. .
This is a motion on arrest of judgmént, in which we are to assume, that all the material averments and-allegations in the declaration are true ^ and the only qucs-i
To my comprehension, the plaintiff, in this'ease, is as clearly one of the'persons, intended to- be libelled, as if his name had been mentioned.. It really seems to me, that no person- who; ban" read and. speak English, upon casting.his eye oye-r ,this> declaration,...could hesitate an instant in applying-, the-libel to the plaintiff; and if this be so, I had supposed it necessarily followed that this motion ought not to -prevail, To show that, i have not expressed myself too strongly, let me appeal to the facts contained in this record. The declaration states, .among, other things, that- at .the time of publishing the libel, the plaintiff was an ensign-, belonging to, and commanding, as such ensign, a, company of riflemen, .commonly called the Albany. Greens,, in, a,* regiment of riflemen, commanded by Colonel Samuel Lockwood; that the defendant, “ well knowing-.all and singular the-pre-, mises,” maliciously published the libel in, question,, of:and,.concerning the plaintiff, as such officer as aforesaid. The libel,among other things, states, that some, companies of a regiment of riflemen, commanded by Colonel Lochw.dod, were called upon to perform a few weeks’ service. Major Koon, and about half a company, turned put, and, acquitted., themselves respectably, &c. Most of the regiment, and particularly the,Trojan, Albany., and Hudson Greens, with the honourable exception of asjngle man,,';a.;hunible tayloj-,. horn Troy, Mr. 'Larkin, refused; to rendezvous, &c. The officers of those: companies discovered great anxiety to prevent the men from going, ; assuring the men, that they, the afjkers, would undertake to pay all the-men’s fines, for sixpence. The officers, commanding the. companies before specified, are alluded'to in. various other parts of the )ibel. The plaintiff avers,, that he was. an ensign in-a company of riflemen, called, the Albany Greens, in Colonql i,oek- * wood’s regiment of riflemen. The libel, states, that this goiepA*'
Suppose a man- should pdblish a libel upon the Bar óf the state of New-Yofk, generally; now, as this would be a-libel upon an order: of men, no particular individual member of the order could maintain an action. But suppose" the libel should designate the counsel who argued a particular cause; or, (to present a case more precisely resembling that under consideration,) suppose it should designate the counsel who argued three separate «causes, which causes are specified in'"the libel, by giving
On this point, there is an adjudged casé, that of Foxcraft v. Lacy, (Hob. 89.,); which is decisive■; and Upon the authority of which, this court decided the ease ©f Gidney v. Blake, (11 Johns. Rep. 54.) That case, sanctioned and adopted as it is by this court,-in my judgment, settles all the points now before us-. ■■■’
ft was asked,, in iílfe progresé of-the argument of the case, if a libel should charge “every.officer of the "army, without exception, from the highest toi ihe lowest,”' with" cowardice, _ whether every ..Officer could maintain ati action 1 I answer, in the first place, that such a libel muh be 'considered as upon- that whole .order -of men)
.My opinion, in this case, accordingly,, is :
1 st. That this is not a libel upon any order of men ;
“2d. That the plaintiff is designated with sufficient certainty (o enable him to maintain his action; - .
" 3d. That this right of action exists, notwithstanding the defendant may have exposed himself to other, actions, which may be commenced by the other officers described in the libel in question, and that the motion in arrest of judgment ought, there-. Tore, to be denied.
Platt, j., was of the same opinion.
Motion, granted,;