5 Johns. 211 | N.Y. Sup. Ct. | 1809
The decision of the questions arising in this case, will be greatly facilitated by first defining the meaning and office of an averment, a colloquium and an innuendo. The use in pleading of an averment, is to ascertain that to the court, which is generally, or doubtfully expressed ; so that the court may not be perplexed of ■whom, or of iwhat, it ought to be understood; and to add matter to the plea to make doubtful things clear. (System of Pleading, 121.) A colloquium, serves to show that the words were spoken in reference to the matter of the averment. An innuendo is explanatory of the subject matter sufficiently expressed before; and it is explanatory of such matter only; for it cannot extend the sense of the words beyond their own meaning, unless something is put upon the record for it to explain. This may be illustrated by Barham’s case. (4 Coke’s Rep. 20.) Barham brought an action for the defendant’s saying of him. “ Barham burnt my barn,” ('innuendo) “ a barn with corn.” The action was held not to lie ; because burning a barn, unless it had corn in it, was not felony. “ But if in the introduction, it had been averred that the defendant had burnt a barn full of corn, and that in a discourse about that barn, the defendant had .spoken the
The averment of extrinsic matter, in this declaration, was for the purpose of showing that the libel was published, as it is expressly alleged to have been, “ of and concerning the plaintiff,1” And whether it was so published or not, is a question of fact, which it is the province of the jury, and not of the court to decide.
This has been so held in a great number of instances ; and is so reasonable and just a rule, that it cannot fail of receiving universal assent. Were the law not so, the jury, in case of libels, would be nothing, and the court every thing. In England, until lately, the court assumed the exclusive right to determine whether the writing charged, was or was not libellous. If the meaning and application of the libel, is also to be determined by the court, it would be going one step further; and nothing would remain for the jury but the single, and the rarely disputed fact, of publication.
In the very lucid opinion, delivered by Lord Ch. J. He Grey, in the house of lords, (in the case of The King v. Horne,) which contains a complete analysis of the law on this subject, he observes, that “ it may happen that a writing may be so expressed, and in such clear and unambiguous words, as that it may amount of itself to a libel. In such a case, the court wants no circum
I do not, however, mean to deny that cases exist, in which the words in themselves were held to be so vague and uncertain, as that it could not be intended they were spoken of any person ; and where, for that reason, they could not be made actionable by an averment. I agree, too, that the court, and not the jury, are to judge whether
This brings me to the consideration of the true question in this cause, viz. was there sufficient evidence in this case to warrant the jury to find that the plaintiff was intended to be charged as being one of the parties to the corrupt agreement stated in the libel ? If this should be decided against the plaintiff, a new trial would be useless ; for notwithstanding it is the right of the jury to determine this fact, yet if in the opinion of this court, they would not be authorised, by the evidence, to find for the plaintiff, we should set the verdict aside.
There is another point in the case, upon which, in the-view I have taken of the subject, it would not be necessary for me to express an opinion. As it may, however, embarrass the parties, on a future trial, (if there should be any,) it may as well be disposed of. I allude to the exclusion by the judge, of the testimony of the witness who was called to say, that from reading the libel, he applied it to the plaintiff. This evidence was properly overruled. The intention of the defendant is not the subject of proof, by witnesses, in the way here attempted. It is the mere opinion of the witness, Which cannot, and ought not to have any influence upon the verdict. I consider the evidence as inadmissible, because it goes to ■
My opinion, therefore, is, that the nonsuit should be set aside, and a new trial be awarded.
Kent, Ch. J. Thompson, J, and Yates, J. were of the same opinion.
My brethren think that I erred, at the cirT cuit, in nonsuiting the plaintiff; and that it should have been submitted to the jury to determine, whether from the whole matter contained in the libel, the plaintiff was charged with being one of the persons who had subscribed the articles of coalition. If the libel warrants the idea, that the plaintiff was charged with subscribing the articles of coalition, then undoubtedly, instead of non-suiting the plaintiff, the jury should have been charged to find a verdict for him.
The rejection of the witness called at the trial, to give a construction to the libel, unaided by any circumstances within the knowledge of the witness, except what he obtained from reading the libel, my brethren think correct; and indeed it se ms to me, that to permit a witness to be heard on the construction of a paper, and to give his
It would appear to me, to follow, as a necessary consequence, if the rejection of the witness coming to construe the libel, was correct, that then, the construction appertained to the court, as matter of law. Let me not bej understood to say, that it is the business of the court, in all cases of libels, conclusively to give that construction ;| for whenever there are matters of fact, arising from the| innuendoes, which become contested, then it is peculiarly! within the province of the jury to pass on those facts. In the present case, there were no such facts ; for the only ¡ matters of fact proved, dehors the libel, were, that the plaintiff, at the time when the defendant charges in the libel, to have seen the corrupt agreement at the plaintiff’s office, as well as at the publication of the libel, was recorder of the city of Albany, and at the former period, was also a member of the assembly of this state, and that the plaintiff was the only person of the name of Abraham Van Vechten, resident in the city of Albany, and that he kept an office there. These facts were not as-: certained, and what then, were the jury to decide ? Whether from the terms of the libel, upon a fair and just construction of its several parts, the plaintiff was implicated as one of the subscribers to the articles of coalition ; and on what did this depend ? most undoubtedly upon the libel itself. In every view in which I can consider the case, it appears to me, that it became a question for the court to decide, what was the legal import of the libel, and whether the plaintiff was implicated as one of the subscribers to the corrupt agreement.
The principles in relation to actions for defamatory-words, as well as upon libels, are well settled ; that the person slandered or libelled must be certain, and that if words are uncertain and do not designate any particular person, no averment shall make them actionable ; (Roll. Abr. 81. l. 25. 79.) and that where words are ambiguous, and equivocal, and require explanation, by reference ; to some extrinsic matter, to make them actionable, it ; must no.t only be predicated that such matter existed, but also that the words were spoken of and concerning that matter. (8 East, 431. Cowp. 648.) If a person should say of three witnesses, one of you is perjured, none of them shall have an action. (Roll. Abr. 81.l. 25.) So in the familiar case, where a person was charged with burning a barn, innuendo, a barn full of corn, the innuendo was held to be irrelevant, and incapable of enlarging the words which were uncertain. Having premised thus much, I proceed to consider the libel. It is supposed the plaintiff’s alleged reply to Mr. Lansing, after rebuking him for his remarks on Governor Lewis, “ for we have agreed to support him at the ensuing election,” and the alleged production of the instrument, containing articles of coalition, the first of which was an engagement by several leading federal men, whose names were thereto subscribed, to support with all their strength and influence, the next election of Governor Lewis, in consideration of which the friends of Governor Lewis, whose names were thereto subscribed, should exert all their power
Under the circumstances, as stated in the libel, what is the import of the expressions imputed to the plaintiff, for we have agreed to support him at the ensuing election.” It must be remembered, that this was urged by the plaintiff as a reason, according to the libel, why Mr. 'Lansing should not persevere in his remarks, and animadversions, upon the political character of Governor La •'is. And then the inquiry arises, in what sense the plaintiff must have spoken, as he is alleged to have done to Mr. Lansing ; whether in his individual capacity, or as one of a political sect, with whom Mr. Lansing was associated. It appears to me, indubitably, that the expressions, upon the most natural construction, import that the political party, to which both the plaintiff and Mr. Lansing belonged, had agreed to support Governor Lezvis, at the then ensuing election; and not that the plaintiff, and some others of the party, had individually agreed to support him. The supposed production of the instrument by the plaintiff, to verify his allegation, that that agreement had been made, does not necessarily implicate the plaintiff, if my construction is right, that the-terms he is supposed to have made use of, point to the political party to which he, Mr. Lansing, belonged; for if several leading federal men, had made that agreement, the plaintiff’s position, “ for we have agreed to support him at the ensuing election,” was as well maintained, as though the plaintiff himself had subscribed the paper.
The libel is considered as implicating the plaintiff as one of the subscribers to the corrupt agreement, by force of the expressions, that it was an agreement by several leading federal men, whose names were thereto sub
New trial granted.