author: Bosworth, J. Hoffman, J.

text:
    Edward P. Fry, Respondent, v. James G. Bennett, Appellant.
    To entitle the deposition of a witness, examined de bend esse under the statute, to be read at the trial, on the ground of his absence from the state, it must be proved by competent evidence to the satisfaction of the court, that he has continued absent out of the state, so that his attendance at such trial could not be compelled by the ordinary process of law. The mere declaration of his wife, out of court, that he is absent, without other evidence, does not constitute such proof
    She is competent to prove the fact, if it exists, and there is no reason why hearsay evidence should be admitted to establish it, when the fact itself may as easily be proved by the wife, as her declaration concerning it, by a third person.
    In an action to recover damages for a libel upon the plaintiff, the jury are at liberty to give exemplary damages, if the evidence satisfies them that the defendant published the libel with intent to injure the character or feelings of the plaintiff, or break up his business.
    In punitive actions, the actual intent with which the injurious act was done, and the circumstances of indignity and contumely attending it, and the mental suffering and mortification resulting from it, may be considered by the jury, in determining the amount of damages to be awarded.

      In such an action, the extent of the circulation of the newspaper, in which the libel was published, may he proved. It is a material fact, and is to be considered, in ascertaining the extent of the injury.
    In such an action, when sufficient evidence has been given to justify the submission of the question, whether, the libel was published with an actual malicious intent, and with a design to injure the plaintiff wantonty, it is not erroneous to admit evidence of the pecuniary means of the defendant.
    (Before Campbell, Boswokth and Hoffman, J.J.)
    Jan. 16;
    Feb. 17, 1855.
    This action was brought to recover damages caused by libellous articles, published by the defendant, in the Hew York Herald. The defendant was the editor and proprietor of that newspaper. The articles were published of and concerning the plaintiff, and of and concerning his character and conduct, as manager and director of an Italian Opera Company. There were eleven of these articles. The action was tried in December, 1858, before Chief Justice Oakley, and a jury.
    Hl the progress of the trial, the plaintiff called Moses M. White, who being sworn and shown a newspaper, testified: I bought this newspaper at the office of the Herald.
    • On being cross-examined he further testified: I bought it there December 15th, 1851. I bought it of a clerk at the desk: it is a paper dated December 15th, 1851.
    The counsel for the plaintiff next offered to read in evidence the said newspaper, alleging on its face James Cordon Bennett to be the editor and proprietor, for the purpose of showing the circulation of the Herald in the years 1848,1849, and the income of the office.
    The counsel for the defendant objectéd to the said newspaper being read, on the'ground that the defendant was in no way connected with it by proof, and that it was irrelevant.
    Eds honor, the Judge, overruled the said objection, and to his decision thereon the counsel for the defendant excepted.
    The counsel for the plaintiff then read the said newspaper to show the circulation of the paper and its income.
    The particulars need not be stated. It affirmed that the daily circulation of the Herald, was 40,560, and that the daily circulation of the other leading morning journals was 29,800. That the receipts of the Herald in 1835, the first year of its existence were, $30,000, and that such receipts had reached nearly $300,000 per annum.

      The counsel for the plaintiff next called as a witness Sheridan Gorbyn, who, after being sworn, said: I am acquainted with Maurice Strakosch; he is in Cincinnati, Ohio. On being cross-examined he further said: I last saw him six weeks ago here; his wife told me he had gone to Cincinnati; I inquired for him this morning; she did not tell me when he went; that is all the knowledge I have.
    The counsel for the plaintiff again offered to read in evidence the deposition of Maurice Strakosch.
    The counsel for the defendant objected to the reading of the said deposition, on the ground that the absence of Maurice Stra-kosch had not been proved.
    His honor the Judge overruled the said objection, and to his decision thereon the counsel for the defendant excepted.
    The counsel for the plaintiff next offered to read the deposition of Maurice Strakosch.
    The counsel for the defendant objected to the reading of the said deposition of the said Maurice Strakosch, for the purpose of showing express malice, on the ground that it was totally incompetent and irrelevant.
    His honor the Judge overruled the said objection, and to his decision thereon the counsel for the defendant excepted.
    The counsel for the plaintiff then read the deposition of Maurice Strakosch.
    The defendant’s counsel, among other requests,, in respect to the charge to be made to the jury, requested the court to charge: That if the jury shall find, any ground in this case for giving damages to the plaintiff against the defendant, their verdict should be for such sum only as would compensate the plaintiff for the injury which he has sustained therefrom, and that the jury aré not at liberty to give to the plaintiff any further sum by way of punishment of the defendant, or by way of vindictive damages, or as smart money.
    The court refused to charge as thus requested. Among other instructions given to the jury, the court charged thus:
    It has been contended by the counsel for the defendant, that the jury are not at liberty to go beyond what are called actual damages. As I understand it, that has not been the course pursued by the courts in this state heretofore. What it may be hereafter I cannot say — in regard to this matter it strikes me that there must be some qualification to that rule; because the consequence of it -would he, that in all cases wherein no specific injury could be proved, the damages would be merely nominal. If the jury in this case were not allowed to form any judgment as to damages, except so far as the plaintiff proved that he sustained an injury in dollars and cents, they could have no basis on' which to stand, and their verdict would he merely nominal. I have always held the rule in such cases to be, that the jury could look at the whole character of the transactions, and that they could take into consideration all the proof before them of any malicious and actual intent to injure the plaintiff. General malice against the plaintiff may not he proved; but actual malice in making the publications complained of may be proved. Malice, so far as the law requires, it to exist to sustain the action, is always implied, because every man who slanders a neighbor, or who publishes a libel against a neighbor, the law presumes to do so from malicious motives. There may be a different rule of law for a case where there is actual malice existing; because, if a man by mistake, publish a libel, the law would fix malice upon it only so far as to make him responsible; but it would be a dif- ’ ferent thing if, instead of publishing it by mistake he did so with a view to injure the plaintiff. It is contended that there is proof of that kind bearing on the defendant, and it is derived altogether, I understand, from the depositions of a German witness, Strakosch. You will examine that evidence very carefully, and see whether taking together his examination in chief, and his cross-examination, reliance can be placed upon the representation he makes, that Mr. Bennett declared his intention to finish or otherwise injure and break down the plaintiff. If it should come up to that, then the defendant stands before us as a man who deliberately undertook to do an injury, and if he fail to prove his allegations to be true, he cannot escape with nominal damages. The whole question of damages is entirely within your sound discretion. If you find for the plaintiff, you will assess such damages as the occasion requires.
    To the charge as made, and to the refusal to charge as requested, the defendant’s counsel separately excepted.

      The jury rendered a verdict in favor of the plaintiff, for $10,000 damages.
    The defendant moved for a new trial, on a case containing the whole evidence. An order was made at Special Term denying the motion, and from that order the defendant appealed to the General Term.
    A judgment having been entered on the verdict, the defendant also appealed from the judgment.
    The two appeals were heard together.
    The points most strenuously urged on the argument of the appeals were:
    First. — That the deposition of Strakosch was improperly admitted as evidence.
    Second. — That it was erroneous to allow the plaintiff to give evidence of the income realized by the defendant from the publication of the New York Herald.
    Third. — That in a civil action for a libel, a jury have no right to give punitive damages, or damages by way of punishing a defendant, for a deliberate purpose to injure the plaintiff, wound his feelings, and subject his character to reproach, and that the court erred in refusing to charge the jury that damages could not be given for such a cause.
    Fourth. — That the damages are excessive, and that the defendant should have a new trial on that account, if no other.

      D. D. Field, J. Townshend, and B. Galbraith, for Appellant.

      F. B. Sherman, for Respondent.
   By the COURT.

Bosworth, J.

Strakosch was examined de bene esse as a witness in this action, and the plaintiff offered his deposition in evidence, after having proved by Sheridan Corbyn, that he knew Strakosch, and last saw him in this city about six weeks previously. That on the morning of that day he called at the house of Strakosch, and the wife of the latter told him that Strakosch had gone to Cincinnati.

The defendant objected to the reading of the deposition of Strakosch, on the ground that his absence had not been proved. The court admitted the evidence, and the defendant excepted.

The statute, on the subject, declares that such a deposition may be read, “ after it shall have been satisfactorily proved that such witness is unable to attend such trial or assessment of damages personally, by reason of his death, insanity, sickness, or settled infirmity, or that he has continued absent out of this state, so that his attendance at such trial or assessment of damages could not be compelled by the ordinary process of law.”

The right to read 'this deposition, depends, in this case, upon' the question whether it was satisfactorily proved that Strakosch had continued absent out of the state, so that his attendance at the trial could not be compelled by the ordinary process of law.”

By satisfactory proof, must be meant evidence recognized by law as competent in its nature to prove the fact, and sufficient prima fade to establish it.

The witness Corbyn, does not state where he lived, how often he had been in the habit of seeing Strakosch, nor that his relations with him were such, nor that his own business was such, that he would have been likely to have seen him, had be been in the city during the two or three weeks preceding the trial.

He does not appear to have even inquired when Strakosch left for Cincinnati. Eor aught that the wife of the latter is testified to have said, and assuming what she said to be true, he might as well have left the previous day, as before the cause was noticed for trial.

The statute requires proof of more than the actual absence of the witness from the state, on the day the action is tried. SucÍl a continued absence must be proved, that ordinary diligence to procure his attendance by process of law, would be ineffectual.

The evidence to give a right to read the deposition must be such, as would make it erroneous to reject the deposition.

Giving to the declarations of Strakosch’s wife the fullest effect, no one can conjecture from it, when Strakosch left the state. No good reason can be assigned for receiving her declarations as proof, when she might have been called to testify to the fact, if it was as she is represented to have stated it.

The statute, by requiring the fact to be satisfactorily proved,” should not be construed to admit of mere hearsay evidence, when direct and competent evidence appears to have been easily attainable.

Ia Guyon v. Lewis, (7 Wend. 26,) the deposition was taken, and cause tried, before the existing statute was enacted. (Id. 28.) The deposition was taken in August, 1828, and the cause was tried in January, 1829. The plaintiff testified to the court, that the witness immediately after being examined, told the plaintiff he was going up the North River, and expected to leave the state; that previously he was in the habit of seeing him, but had not seen him since. (Id. 28.) He was a transient person, had no fixed habitation anywhere, and was a journeyman carpenter, seeking employment.

That was held sufficient. In Jackson v. Rice, (3 Wend. 180,) a deposition of Richard Harrison, taken under the act to perpetuate testimony, (1 R. S. 455,) was offered in evidence, and rejected. The preliminary proof was, that of a witness, who proved that Mr. Harrison was between seventy-five and eighty years of age, and that the witness believed from the ill state of his health, and the infirmities consequent upon his advanced age, he was unable to attend at the circuit as a witness. He had not, however, seen Mr. Harrison in several years, and did not personally know the state of his health. The deposition was rejected. The court said, “ For aught that appeared, he might, although eighty years of age, have attended the court. At all events, the Judge was not bound to presume him unable to attend. The plaintiff should not rely upon presumption where it was his duty to produce proof.”

In Jackson v. Perkins, (2 Wend. 308-315,) a deposition of Mrs. Yischer, taken under the same act, was offered in evidence. It was allowed to be read on a stipulation of the plaintiff’s counsel, that a judgment of nonsuit might be entered if the Supreme Court on a case made, should be of the opinion that the deposition ought not to have been received.

The evidence of her inability to attend was, that she was over seventy-four years of age, and one of the witnesses testified that from his knowledge of her situation and infirmities, he believed she could not endure a journey from Albany to Ogdensburgh, without the most serious injury to her health. This was held to be sufficient. (See Clarke v. Dibble, 16 Wend. 601; The People v. Hadden, 3 Denio, 225.)

I think the spirit of these decisions requires legal proof, as contradistinguished from mere hearsay evidence or belief, especially when it is apparent that it is as easily attainable as the inferior proof which may be offered. The mere declaration of a third person should not be received as competent, and certainly not as satisfactory proof of any fact, when such third person can be as easily procured to testify to the fact, as the one offered to prove his declaration respecting it. In this case, all the proof that was given of the continued absence of Strakosch from the state, was the declaration of his wife, that he had gone to Cincinnati, (not saying when he went,) and that the witness had not seen him in six weeks. (See Robinson v. Marks, 2 Mood. & Malk. 375; and 1 Camp. R. 172.)

Allowing such testimony would furnish opportunity for collusion, and violate the rule that mere hearsay evidence is inadmissible, without the slightest necessity for it, in a case in which it was just as feasible, to call the party who made the declaration, as some one who heard it made. Testimony by his wife, that Strakosch left the city, avowedly to go to Cincinnati, stating when — that she had not seen or heard from him since; or, had received letters from him bearing the Cincinnati post-office stamp, would undoubtedly be satisfactory proof. We are all of the opinion, that on the evidence given, the plaintiff was not entitled to read the deposition.

The defendant is therefore entitled to a new trial, on account of the admission of this deposition in evidence. This conclusion renders it unnecessary to pass upon any of the other questions argued on the appeal, except such as we can see, must arise upon a second trial, and in respect to which, the ruling of the court, on such trial, may properly be required.

A Hew York Herald, of the date of December 15, 1851, purporting to state its average daily circulation from 1842 to 1851, inclusive, and the annual receipts for it in 1835, the first year of its existence, and also in the year 1851, was offered in evidence, “for the purpose of showing the circulation of the Herald in the years 1848, 1849, and the income of the office.”

It was objected to, “on the ground that the defendant was in no way connected with it by proof, and that it was irrelevant.”

The objection was overruled, and the defendant’s counsel ex cepted.

It was then read, “ to show the circulation of the paper, and its income.” The proof sufficiently connected the defendant with that number of the Herald.

The paper was “ relevant,” and was competent evidence, to show the circulation of the Herald, and of the extent to which the libellous matter had been published. So much of the extract read, as related to this point, was proper evidence.

The objection was not taken, that the passage relating to the receipts of the Herald should not be read, but the objection was to the whole article. In not attempting to discriminate between the different parts of it, the objection seems to have assumed, that as a whole, it was not admissible for any purpose, and the ground of objection taken was, that it was irrelevant.

Whether the part relating to the receipts of the office, if specially objected to should have been excluded, or whether its admission can be seen to have so prejudiced the defendant, that, treating this as a motion for a new trial on a case, as well as an appeal from the judgment, a new trial should be granted, will depend upon considerations connected with the charge on the subject of damages, and exceptions taken by the defendant to the refusal of the court, to charge on that branch of the case as requested.

The defendant requested the court to charge the jury — “ that if the jury should find any ground in this case for giving damages to the plaintiff against the defendant, their verdict should be for such sum only as would compensate the plaintiff for the injury he has sustained therefrom, and that the jury are not at liberty to give to the plaintiff any further sum by way of punishment of the defendant, or by way of vindictive damages, or as smart money.”

The court refused to so charge, and the defendant excepted.

It is not contended that the terms of the charge, as given, are particularly exceptionable.

The jury were instructed that the plaintiff had not proved any specific loss to his business as an opera manager. “ In estimating the damages, they were to look at the character of the libels, and the business of the plaintiff, not giving way to any feelings of prejudice, but examining the whole matter like business men, and so drawing their inference as to damages. That the court Rad always Reid tRe rule in sucR cases to be, tRat tRe jury could look at tRe whole cRaracter of tRe transactions, and tRat tRey could take into consideration tRe proof before tRem of any malicious and- actual intent to injure tRe plaintiff. TRat it was contended tRe evidence of StrakoscR proved actual malice, and an intention to injure tRe plaintiff and break up Ris business. TRey would examine this evidence carefully, and determine wRetRer it sRould be credited, and wRetRer tRey could rely “ upon tRe representations Re makes, tRat Mr. Bennett declared his intention to finish, or otherwise injure and break down the plaintiff.’ If it sRould come up to that, then the defendant stands before us as a man who deliberately undertook to do an injury, and if Re fail to prove Ris allegation to be true, Re cannot escape with nominal damages. TRe whole question of damages- is entirely within your sound discretion. If you find for the plaintiff, you will give such damages as the occasion requires.”

If the charge, as given, was not erroneous, and was as favorable to the defendant as Re could properly require, then the question arises whether there was any error in refusing to give the instruction sought, or whether the not giving of it may be reasonably inferred to Rave been a substantial prejudice to the defendant. I state the latter alternative, because the action is before us upon a ease, as well as upon exceptions to the decisions of the court.

TRe case does not show, nor state any thing to justify, legally, ’ the inference, that the plaintiff urged the jury to apply any other considerations in estimating the amount of damages, than those, which the charge, as given, approved, or insisted to the court, that any instructions sRould be given variant from those which the defendant specially asked the court to give, unless it is to be inferred from the fact of the request itself.

I cannot believe, that when a charge, unexceptionable in itself, has been given, it is error not to go further, and charge a proposition which, as an abstract one, is sound, when the converse of it has neither been asserted by the adverse party, nor its application invoked to the disposition of any part of the case.

Unless the defendant in Ris request to the court to charge, that in addition to compensating the injury, the jury were not at liberty “ to give any further sum by way of punishment of the defendant, or by way of vindictive damages, or as smart money,” used these three alternatives as synonymous expressions, then it was not erroneous in any view, not to charge as requested, provided that “ vindictive damages,” or damages “ as smart money,” could properly be given. Unless his proposition, as an entire one was sound, it was not error to refuse to instruct the jury to adopt, and be governed by it.

We do not understand the learned counsel for the defendant to deny, that in estimating damages, in an action of libel, the jury are not only to consider and compensate any actual pecuniary loss, but if the injury was wilful, or intentional, they may consider the mental sufferings of the plaintiff, the circumstances of indignity and contumely under which the wrong was done, and the consequent public disgrace to- the plaintiff, together with any other circumstances belonging to the wrongful act, and tending to the plaintiff's discomfort.

But he insists, that when the jury, in the exercise of a sound discretion, have arrived at what, in their judgment, is a proper compensation, having reference to all these circumstances, their duty and power end, and they can add nothing to such compensation, to punish the defendant for the public good, by deterring him from doing similar wrongs to the same plaintiff, or to others.

One consideration naturally suggests itself upon the mere statement of these propositions. A plaintiff who has been injured by a tort, or wrong of a defendant, is entitled, in all cases, to his actual damages. If these include compensation for mental suffering, and a consideration of the circumstances of indignity under which the wrong was done, the public disgrace inflicted, and other actual discomfort produced, the plaintiff should be compensated at all events, whether the wrong was wanton, or was done believing the charges published to.be true.

In either case the mental suffering must be as great, the circumstances of apparent indignity are the same, and his disgrace will be absolute and mortifying in the one case as the other, until his character has been vindicated by a verdict, establishing the falsity of the calumnies charged against him.

If such considerations are not constituent elements of damage, and if a person who has been injured in these respects is not to be compensated by damages, as a matter of strict legal right, and if a defendant is to be exonerated from such damages, when the injury was not wanton, and is to be subjected to them when it was,-then such damages may not inaptly be termed- punitive, or vindictive; or damages given as smart money.

. If the right to them does not result from the fact of the wrong, and the suffering and disgrace caused by it, then they are not given to compensate for such injuries, as a matter of course, merely because he wrongfully caused them, but because he caused them from a deliberate purpose to inflict them, without any thing to palliate or mitigate his conduct.

Logically speaking, such damages when given, are awarded full as much to punish a defendant as to compensate a plaintiff, and they are given as much by way of smart money, as because the plaintiff is entitled to them as an indemnity, inasmuch as they are given in consequence of the wantonness of the wrong, and not merely on account of the sufferings, discomfort, and disgrace, caused by them to- the plaintiff.

A reference to some of the cases, will show that the decisions in the courts of this state,, on this point, have been uniform. Tillotson v. Cheetham, 3 J. R. 56, was an action for a libel. No plea was put in, and a writ of inquiry was executed before Chief Justice Kent and 'a jury.

The Judge charged the jury, that the case “ demanded from the jury exemplary damages; that he did not accede to the doctrine that the jury ought not to punish the defendant, in a civil suit, for the pernicious effect a publication of this kind was calculated to produce -in society.”

The defendant moved to set aside the inquest, and insisted that the “charge of the Judge was incorrect in stating that the plaintiff was entitled to exemplary damages, on account of the injurious tendency of such publications to the community. In a private action, the party can recover only for the private wrong; he has no concern with the public offence, for which the defendant must atone on the indictment.”

The motion was denied.

Kent, Ch. J., after citing cases, which, in his view of them, sanctioned the doctrine contained in this part of the charge, remarks that: “ It is too well settled in practice, and is too valuable m principle, to be called in question. The report of the case states that, “Thompson, J., and Yan Ness, J., declared themselves to be of the same opinion.” Spencer, J. said, that “in vindictive actions, such as for libels, defamation, assault and battery, false imprisonment, and a variety of others, it is always given in charge to the jury, that they are to inflict damages for example’s sake, and by way of punishing the defendant.”

This decision was made in 1808, and seems to be a direct adjudication of the question, presented in the request to charge.

In Hoyt v. Gelston, et al., (18 J. R. 141-151,) which was an action of trespass for seizing a vessel, &c., the plaintiff’ scounsel admitted, “ that the defendants had not been influenced by any malicious motives in making the seizure, and that they had not acted therein with any view or design of oppressing or injuring the plaintiff. The presiding Judge held that such admission precluded the plaintiff from claiming any damages against the defendants by way of punishment, or smart money, and that after such admission, the plaintiff could recover only the actual damages sustained, and he gave that direction to the jury.”

In Wory v. Jenkins, (14 J. R. 352,) being an action of trespass for beating the plaintiff’s mare, by reason whereof she died. The mare was proved to be worth $50 or $60. The Judge told the jury the plaintiff was entitled to recover the value of the mare, and “ if they believed, as he did, that the defendant had whipped her to death, it was a case in which, from the wantoness and cruelty of the defendant’s conduct, the jury had a right to give smart money.” They found a verdict for $75.

A motion was made to set aside the verdict for excessive damages and misdirection of the Judge. The court said, “We think the charge of the Judge was correct; and we should have been better satisfied with the verdict if the amount of damages had been greater and more exemplary.”

In Woodward v. Paine, (15 J. R. 494,) the same instruction was given to the jury, and the correctness of the decision affirmed.

In Root v. Wing, (4 Wend. 113,) which was an action for a libel, the presiding Judge, after giving his views of the evils of a bitter and unmitigated aspersion of private character through the medium of newspapers, stated in his charge that, “ in a fitting case, a jury could render no more meritorious service to the publics than in repressing tbis enormous evil. It can only be done By visiting with severe damages him who wantonly and falsely assails the character of another through the public papers.”

No exception was taken to this part of the charge.

The Chancellor, in his opinion, stated the rule to be that, “ the jury may not only give such damages as they think necessary to compensate the plaintiff for his actual injury, but they may also give damages by way of punishment to the defendants. This.is usually denominated exemplary damages, or smart money.”

In Fero v. Ruscoe, (4 Coms. 162,) which was an action for slander, the Judge charged “ that the failure to establish a justification, was in law an aggravation of the slander, and that the defendant was not entitled to any benefit from the evidence given to make out a justification, if the jury believed that it failed to make out a full justification.”

An exception was taken to this charge.

The Court of Appeals held the charge to be correct, and said that an attempt to justify, though honestly made, was an aggravation of the original wrong. If the defendant makes a mistake, it is at his own peril.

In Allen v. Addington, (11 Wend. 380,) an action for falsely representing the credit of one Baker, whereby the plaintiff was induced to sell him goods to the value of $2,000, the Judge instructed the jury that, “ if they should consider the plaintiff entitled to recover, he would be entitled not only to the amount of the goods sold, with the interest of the same, but also to exemplary damages.” The defendant excepted to the charge, and the jury found a verdict for the plaintiff for $2,564.84 damages.

When the cause was before the Supreme Court for a new trial, that court held that the rule of damages laid down by the jury was not objectionable. A writ of error was brought to the court for the correction of errors, (7 Wend. 9, 26.

The judgment was reversed on the sole ground that the second count was bad in substance, but the third count being deemed sufficient after verdict to sustain the judgment, the record was remitted to the Supreme Court, with liberty to the plaintiff to apply there to amend the postea, so as to apply the verdict to the third count, (the first count not having been proved,) and to render judgment thereon, and if such relief was refused, to apply for a new trial and for liberty to amend bis declaration before tbe awarding of a venire de novo, (11 Wend. 421.)

Application was made to tbe Supreme Court for leave to amend tbe postea, and enter judgment on tbe third count, wbicb was granted, (12 Wend. 215.)

This seems to be a direct affirmance of tbe proposition that, in an action of tort; although it affects property only, and tbe actual damages can be ascertained, exemplary damages may be given in a case in wbicb tbe tort resulted from a purpose deliberately and intentionally to injure tbe plaintiff.

Although tbe doctrine that exemplary or vindictive damages may be given in actions of tort, when tbe wrong was wantonly or. maliciously committed, has been uniformly acted upon at nisi prins, and sanctioned both by tbe Supreme Court and tbe court of last resort of this state, its justice, or any direct authority for it, has recently been denied in Dain v. Wykoff, (3 Seld. R. 193,) by an eminent Judge of tbe Court of Appeals.

We have also been favored with tbe opinion of Mr. Justice Jewett, and that of Mr. Justice Mason, in tbe case of Taylor, Hale & Murdock, v. Church. That was an action for libel. Tbe Judge charged that “ if tbe jury were satisfied that tbe defendant was influenced by actual malice, or a deliberate intention to injure tbe plaintiffs, they might give such further damages (in addition to a flail compensation for tbe injury) as are suited to tbe aggravated character wbicb tbe act assumes, and as are necessary as an example to deter from tbe doing of such injuries.”' To this there was an exception. Mr. Justice Jewett held this part of tbe charge to be correct, and Mr. Justice Mason held' ⅛ to be clearly wrong. A note of tbe reporter states that- five members of tbe court did not express a concurrence witli either Judge on tbe question now under consideration. All tbe Judges agreed with Mr. Justice Jewett in granting a new trial on another ground, stated in bis opinion.

How many of the Judges were present on tbe argument of that case, or took part in tbe decision of it, tbe réporter’s note does-not state.

' If tbe Court of Appeals has not directly affirmed tbe contrary of tbe instruction sought on tbe trial of this action, neither has it affirmed that such an instruction would be proper.

To instruct a jury, as tbe Judge before whom this action was tried was requested to charge the jury in this case, would be directly in conflict with the law, as it has been uniformly stated to juries in such actions in this state, from the earliest period of its judicial history, so fkr as the practice is evidenced by reported decisions.

Under such circumstances, we do not feel at liberty to disregard a rule so long and uniformly held, and directly affirmed by the Supreme Court of this state half a century ago, and if not expressly decided, at least clearly approved by the court for the correction of errors, in Allen v. Addington, and in Root v. King. (See Day v. Woodworth, 13 How. U. S. R. 371-2; Austin v. Wilson, 1 Cash. R. 273, and the cases cited by counsel in Kendall v. Stone, 1 Selden, 18.)

If in actions of libel and slander, and in other actions of tort for injuries to the person or to character, damages may be given when the act was wanton, or actually malicious, which would not otherwise be allowed, although in each case the actual pecuniary injury, the extent of personal- suffering, the attendant circumstances of contumely and indignity, and the public disgrace, be precisely the same in the one case as in the other, it is of no practical consequence whether such damages be termed punitive, vindictive or compensatory. By whatever name they may be designated, they are manifestly given on account of the wantonness or malice of the defendant’s conduct, and the very rule which determines whether they may be given, or must be withheld, has no real principle on which it can stand, if it be conceded that they cannot be given by way of example, or to punish atrocity of conduct.

While such damages are allowed to be recovered, it cannot be an indifferent consideration whether a defendant is rich or poor. Damages which would be exemplary, when inflicted upon a person in moderate circumstances, would be trivial, and in no practical sense exemplary, when imposed upon a person whose property and income were very much larger.

Who the parties to a controversy of such a character as this are, what are their pursuits and positions, and what the influence resulting from them by a libel published by either of the other may be, are not unimportant parts of the transaction itself. Such considerations sometimes give to a libel and slander all tbat it bas of substantial interest or importance, and sometimes they are of-such a character, that however gross the terms of the libel, they alike fail to give respectability to the action, or excite interest as to the defence.

In considering the question raised by the exception, to the refusal to charge as requested, we have not referred to the decisions of the courts of any other state. We have forborne to make such a reference, for the reason that the decisions of the courts of this state have been uniform, and reach back to a period so remote that we do not feel at liberty to treat the question as an open one in this state, notwithstanding the doubts recently expressed by some members of our Court of Appeals, in relation both to the justice of the rule, and the existence of any authority by which it can be upheld.

A new trial is granted, on the ground that the deposition of Strakoseh was improperly admitted. A new trial being granted on that ground, it must be with costs to abide the event of the action.

Hoffman, J.

As I concur with my brethren in their conclusions upon every point of the cause, and consider the reasons assigned by Mr. Justice Bosworth sufficient to sustain such conclusions, it might appear needless to add any thing to the opinion delivered. But the leading question in this case — the right to give vindictive damages in a libel suit, where actual malice is found by the jury — receives great importance from the opinions of some Judges of the Court of Appeals, which question that right. The doubt thus thrown upon a rule which I have received from my professional teachers as unquestioned law, has made me feel it a duty to add something to the reasoning and authorities upon which the opinion of my brother is founded. The twenty-ninth exception taken by the defendant’s counsel upon the trial, involves the point in controversy.

The Judge was requested to charge as follows: — “ That if the jury should find any ground for giving damages to the plaintiff, their verdict should be for such sum only as would compensate him for the injury he had sustained therefrom; and that the jury were not at liberty to give him any further sum by way of punishment of the defendant, or by way of vindictive damages, or as smart money.”

The observations of my brother Bosworth, in contrasting this -request with the charge actually made, and his conclusion that the refusal is not, when the whole is considered, ground of exception, appear to me unanswerable. But I am desirous of expressing my own opinion upon this great point, when placed in the strongest form in which it can be presented for the defendant. I shall, therefore, consider it as if the Judge had expressly charged the converse of the proposition to be the law, and had employed the language of the request, varying it only by omitting the word “not” in the latter part, and inserting the same word after the word “ should” in the first clause. In determining whether this would be ground of exception, the court is justified in connecting it with portions of the charge actually made, pertinent to the same question. It may, therefore, be viewed in conjunction with the instruction, “ that an actual malicious intent in making the publication might be proven, and the jury was to judge by the evidence whether such an intent was made out. If such was the case, and the defendant had not proven his allegations to be true, he should not escape with nominal damages.”

I shall treat the question, then, as the counsel insists it must be treated, under the refusal and the actual charge; and shall suppose that the Judge had added, after what I have quoted from the charge, the converse of the proposition contained in the request, as I have stated it.

It is to be noticed that this proposition does not involve, but may be entirely consistent with, the exclusion of the idea of punishment for the injury done to society. It is punishment of the defendant for the wrong done to the plaintiff. It is punishment for an injury attempted or designed as well as for one inflicted. It is punishment for the intent to injure in numerous cases, where no injury can probably arise; and it is consistent with the assumption that the offence cannot be penally visited by the state; or if it can be, that the penalty is inflicted on a different ground.

I am unable to see any logical contradiction in holding, that the same person may be compelled to atone for the same offence to an individual for a wrong done or menaced him, and to society for his aggression upon her peaoe; nor again, that the mode of making sucb atonement should be payment of money in each case. If this is so, then the adjustment of the proportion of punishment becomes a matter of practical arrangement; and it will be seen that tribunals of justice have so adjusted it.

In this connection I may advert to the point taken by the counsel, that this doctrine of punishment inyades the provision of the present constitution, that no person shall be twice put in jeopardy for the same offence. That precept is found in the early ages of the common law in the maxim, nemo debet bis puniri pro uno delicto, and was applicable to criminal prosecutions, and when one judgment or sentence had been perfected. Another maxim, perhaps more pertinent, is, that no one should be twice vexed, if it appears to the court, that it is for one and the same cause. (Shawe’s Case, 5 Rep. 61.)

It has never been imagined that either of these precepts interposed an objection to the institution of proceedings by the state, simultaneously with an action by an individual for a libel. It has become settled law in England and in this state, that the existence or determination of the one is no bar to the other, although it may bear upon the question of the suspension of proceedings, or mitigation of punishment, in the criminal court. That court will postpone sentence or the proceedings, until the result of the civil suit is known, with a view to the extent of punishment; but the civil action is not stayed or affected by the criminal prosecution. (Cook v. Wilis, 6 Hill, 466, and cases.) I am informed by two gentlemen, who have each filled the office of district attorney, that the practice is as frequent to stay proceedings before as after conviction, until the result of the civil suit is ascertained.

The punishment upon conviction for a libehin our state, is a fine not exceeding $250, or imprisonment not exceeding one year, or both such fine and imprisonment. (2 R. S., 697.) This is the reparation to the public, which the Legislature has deemed sufficient for the vindication of public justice. And that offence which is thus punished, is the tendency of the libel to provoke to a breach of the peace. (1 Haw. Pl. C., 73; 2 Kent, 17.)

This tendency is so essentially the ground of the criminal prosecution, that it lay at the root of the rule so long prevalent in our own country, that the truth upon an indictment for a libel could not be given in evidence. (The People v. Croswell, 2 John. Cas., 392; 2 Kent, 18.) Whether true or false, the danger to the peace of the country was the same.

When, then, the terms, vindictive damages or exemplary damages, are employed in a civil action for libel, they mean, in my opinion, the atonement which the law demands shall be made to the libelled party by the offender; and such atonement involves essentially his puhishment. It is a condemnation and infliction for traducing the individual — not for provoking him to break the peace.

It would be objectionable in this view of the case, to instruct a jury to give damages, on the ground that the interests of society required the defendant’s punishment, or that they could consider the offence to the state as a reason for increasing the damages. It must be admitted that this idea has, in some cases, been loosely and partially presented. It does not belong .to that idea of punishment now sought to be developed.. That'is consistent with the supposition, either that there, is .no penalty on behalf of the state, or that such penalty is for another cause, and with a different object. ■

The moment we admit of any exception to the naked rule of compensation, measured by an accurate, or approximate computation of actual pecuniary loss, we admit .the idea of a reparation for something indefinite, and the. adjustment of which must be indefinite.

It is stated that the Lord Commissioner (Adam), of Scotland— the most earnest advocate of the most restricted rule — said, in an action for defamation of a professional man, “that the question of damages must always include both a question of loss and sola-tium.” (Quoted by Mr. Sedgwick, 465, N.) The allowance of any sum for solatium, is an allowance-for something beyond'positive loss, and for reparation distinct from restoration; It seems difficult to separate this idea of reparation from that of. punishment. What is taken from the offender beyond what is'Tost and can be restored to the party injured, partakes of. the nature of a penalty.

But again, there is a class of libel cases in which the character and situation of the person assailed, preclude the possibility, not merely of a pecuniary loss, but of an injury to his reputation, or even a wound to feeling. Lord Tenterden adverts to sucb instances when he speaks of the calumnies of those whose censure is more to be desired than their praise; and Cicero had before declaredInvidiam virtute paratam, gbriam, non invid-iam, putarem. (In Cat.)

When the justice of the country is invoked to deal with a libeller in such' a case, on what ground can any damage be awarded but upon that of atonement for an attempted offence, and punishment as the absolute foundation and object of the verdict? Civil actions for libels must be abandoned, and in cases where the just indignation of an honest community demands their enforcement, if such a principle must be surrendered.

With these views, I have examined the leading English cases, and those of our sister states, which are cited by Mr. Sedgwick in his able work upon damages, and in the comments of Mr. Greenleaf and Mr. Metcalf upon them. A few others may be added. (Cole v. Tucker, 6 Texas Rep., 268; Fleet v. Hollerheep, 13 B. Monroe, 225; Stout v. Prad, Coxe’s N. J. Rep., 79; Trabrue v. Mays, 3 Dana, 138.) It appears to me, that the great body of these authorities sanction the rule as I have attempted to express it.

It is superfluous for me to notice the decisions in our own state, after the critical and ample examination of them by my associate. I content myself with adverting to that of Tillotson v. Cheetham, in 1808, (3 Johns. R. 56,) and those of Collins v. The Albany R. R. Company, in 1852, (12 Barbour, 495,) and Taylor v. Church, in 1853. (Selden’s Notes of Appeal Cases, July, 1853, 50.)

In 1808, Chief Justice Spencer stated, “that it had always been the practice to instruct the jury in vindictive actions, such as libels, that they are to inflict damages for example’s sake, and by way of punishment to the defendant.” The rule thus declared to have always prevailed before 1808, has prevailed ever since, and has been recognized, or assumed to exist, in a long series of decisions in our state. It has become consecrated as an enduring maxim of our laws, by a perpetual tribute to its legal truth, offered by the illustrious judges of our tribunals, from the day of Spencer and of Kent to the charge of the Chief Justice of this court in tbe present cause. Eor myself, I feel tbat in wandering from it, I should merit tbe admonition involved in tbe maxim of Lord Cote: Quod novum judicium non dat jus novum, sed de-clara! antiquum.

Eor these reasons I consider tbe refusal of tbe Judge to charge tbe jury as be was requested in tbe 29th exception, to be unobjectionable, and bis actual charge correct.

A new trial must, however, be granted, on account of tbe admission of tbe deposition of Strakosch.


source: Caselaw Access Project

author: Campbell, J.

license: Public Domain

text:
    Vanwyck, v. Guthrie, Aspinwall & Merrick.
    The defendants, a committee of the Trustees of the College of Pharmacy, in the city of New York, made a report to the Board of Trustees, which the Board adopted, and ordered to he transmitted to the Secretary of the Treasury of the United States. The plaintiff was at that time Inspector of Drugs for the port of New York, and the report contained charges against him tending to show his ineompeteney for the office, and was transmitted with the view of effecting his removal.

      Held, that the report so transmitted was a privileged communication, and that the plaintiff would not be entitled to recover without proof of actual malice, or a want of good faith on the part of the defendants.

      Held, that when the charges in a libel are specific, a general averment in the answer of their truth is sufficient.
    Order overruling demurrer to answer affirmed, with costs.
    (Before Campbell, Bosworth and Hoffman, J.J.)
    January 25,
    March 3, 1855.
    This action came before tbe court on an appeal by tbe plaintiff from an order overruling separate demurrers, interposed to parts of tbe separate answers, of tbe defendants, Aspinwall & Merrick.
    Tbe action is libel, and tbe complaint states tbat tbe plaintiff is a physician and doctor of medicine, wbo graduated and received bis diploma from tbe College of Physicians and Surgeons of tbe state of New York. In 1850 be was appointed by &e Secretary of tbe Treasury, a general inspector of drugs and medicines for tbe port of New York. He accepted tbe appointment, and entered on tbe discharge of its duties, abandoning a lucrative business, and while faithfully discharging such duties, and about the 8th of July, 1851, the defendants, without cause, and falsely, and maliciously, and with intent to injure his professional reputation, and to cause his removal from office, composed and published, at the College of Pharmacy, in the city of New York, the following false, scandalous, malicious, and defamatory statement, viz.:
    <( 1st. Precipitate chalk, a so called article, is now on sale in this market, which, upon analysis, proves to be nothing else than sulphate of lime. It was imported by Mr. Poultney, some six months ago, was passed by the present Inspector of Drugs at this port, and is now offered for sale by the above-named gentleman, who affirms it to be the real precipitate chalk. He has sold it to several houses, one or two have returned it, but others seem to like it, and are now, no doubt, furnishing it to their customers for the genuine article.
    “ 2d. Iodite of Potassium. One lot imported by Mr. Andrews, corner of Wall and Front streets; according to the evidence obtained, this was imported without the label of the maker’s name, and therefore, under the law, inadmissible. A certificate that it was, ‘ not only pure, but unusually fine,’ was given by the Inspector of Drugs; this certificate was forwarded to the Secretary of the Treasury, who thereupon ordered it to be passed. A sample has been obtained, which upon analysis, proves to be largely adulterated.
    “ 3d. Another lot of the same chemical, without the maker’s name upon it, was imported by Mr. Patterson, and sent to Philadelphia, and returned. Whether this was passed by a similar certificate, your committee have not the means of knowing; neither have they any analysis, but the law was violated in its being passed through the custom house without the maker’s name being upon the bottles.
    “ 4th. Bad Ipecac. — A sample of this root was shown to the members of a house in the presence of one of the committee, which was so badly damaged that they considered it utterly worthless. The inquiry was at once made as to the possibility of getting it through the custom house, to which the broker replied, ‘ Oh! there is not the smallest possible difficulty about that.’ This was offered at 56 cents per pound, while the article, if good, is worth $2.50 to $6, in quantity.
    “5th. Red jalap in much the same condition has been passed by the inspector, and in one instance a lot of this root which was rejected by the parties importing it, and thrown upon the underwriters’ hands, we have reason to believe has passed the custom house, and been sold here.
    “Many other facts of a similar character might be set forth, but the committee deem further specifications unnecessary, as the above shows a manifest reckless disrespect of law’s plainest provisions.”
    That in consequence of this publication, the said Secretary was induced to believe that the plaintiff was ignorant of the analysis and manner of testing drugs, and allowed impure and adulterated drugs to be imported contrary to law, and, therefore, removed him from office, thereby subjecting him to great pecuniary loss, and injuring his good name and professional reputation, and prayed judgment for $16,000 damages, besides costs.
    The separate answer of the defendant Aspinwall put at issue the material allegations of the complaint. It also contained the following matter, being the parts of it demurred to :
    This defendant further says that, at the several times alleged in the complaint, he was a member of the College of Pharmacy in the city of New York, and of the Board of Trustees thereof, which college is, and was a body corporate, incorporated under and by virtue of a certain act of the Legislature of the people of the state of New York, entitled “ An act to incorporate the College of Pharmacy in the city of New York,” passed April 25, 1831; to which legislative act the defendant refers, as part of this answer.
    That said college was, in and by said act, constituted a corporation for the purpose, among other things, of cultivating, improving and making known a knowledge of pharmacy, its collateral branches of science, and the best modes of preparing medicines and their compounds, with a view to the public benefit.
    That some time in or about and before the month of April, 1851, sundry complaints were made to the Board of Trustees of said college, that sundry spurious and adulterated drugs and medicines had been imported into the port of New York, contrary to law and tbe provisions of tbe act of Congress, passed on the 26th of June, 1848, referred to in tbe complaint.
    That thereupon said Board of Trustees appointed this defendant, together with- the defendants C. B. Guthrie and Thomas B. Merrick, to investigate such complaints, and to report the result of their investigations to said Board 9f Trustees.
    That this defendant, together with the other defendants in this action, thereupon proceeded to make such investigations, and on or about the 8th day of April, 1851, jointly made a report thereof in writing to said Board of Trustees, in order that the same-might be presented to the Secretary of the Treasury of the United States, to whom the power to enforce said act of Congress, and the power to appoint and remove the General Examiner and Inspector of Drugs of the port of New York, belonged. A portion of which written report is correctly set forth in the complaint, beginning with the words, “ 1st, precipitate chalk,” and ending with the words “law’s plainest provisions.”
    That as this defendant is informed and believes, said report was forwarded to the then Secretary of the Treasury of the United States, for the purpose of informing said Secretary of the matters therein stated, for the purpose of procuring the proper enforcement, by the government of-the United States, of the provisions of the act of Congress aforesaid, for the purpose of preventing the importation and sale of spurious and adulterated drugs and medicines, and without any unlawful, malicious, or evil purpose or intent towards the plaintiff, either on the part of this defendant or his co-defendants, to.the best of his knowledge, information, and belief.
    That this defendant, and, as he is informed and believes, each of the other defendants, made the report aforesaid, and the same was so forwarded to the said Secretary, with reasonable cause, in good faith, and from good and lawful motives, and he and they were moved solely by a conscientious desire to discharge their duties to the public, to prevent the unlawful importation, sale, and public use of spurious and adulterated drugs and medicines, and without malice, or any unlawful attempt to defame or injure the plaintiff, or his profession, office, or employment. And this defendant, and, as he is informed and believes, the other defendants, never published the statements contained in said report, or any of tbem, excepting at tbe time and place and in the manner herein above expressly stated.
    That this defendant, and, as he is informed and believes, the other defendants, at the time of making said report, and at the time the same was so forwarded to the said Secretary, verily believed and had good reason to believe and still believes the statements contained therein, and each and all of such statements to be entirely true; excepting only that since the month of April, 1851, the said plaintiff caused to be addressed to this defendant, by Messrs. Woodman & Black, his attorneys in this behalf, a letter informing this defendant that the portion of said report stating that the plaintiff had passed sulphate of lime for precipitate of chalk, was incorrect, and calling upon this defendant to make a written retraction of that statement. That thereupon, on further investigation, this defendant for the first time was led to believe that such portion of said report was incorrect, and accordingly, upon the understanding and agreement by and between him and the plaintiff, who acted in this behalf through his said attorneys, that if this defendant would retract such statement, he and his co-defendants should be relieved and discharged from all claims on the part of the plaintiff by reason of such incorrect statements, this defendant retracted in writing, the aforesaid incorrect portion of said report relating to precipitate chalk, which retraction, was, at the request of the plaintiff, contained in a letter addressed to Messrs. Woodman & Black, aforesaid, and in a letter addressed to the Secretary of the Treasury of the United States; and this defendant alleges that the plaintiff has, for a good consideration, fully acquitted and discharged this defendant from all alleged claims and demands whatsoever, accrued to'him the plaintiff, under or by reason of that paragraph of said report marked “ 1st,” and relating to “ precipitate ehalk,” and that there has been a full and sufficient accord and satisfaction between the plaintiff and this defendant therefor.
    This defendant further answering, submits to this honorable court that the making of said report to the Board of Trustees of the said College of Pharmacy, and every part thereof, as also the forwarding of the same to the said Secretary," was a privileged and lawful communication, the same having been so made and forwarded with lawful motives, for a lawful purpose, and without any malicious or evil intent or purpose on tbe part of this defendant, or of his co-defendants.
    This defendant further says, that he is informed and believes,' that each and all of the statements set forth in the said report, excepting only the first paragraph thereof, headed “ Precipitate Chalk,” so far as they relate to the plaintiff, are true, and that this defendant and his. co-defendants did not make said report without careful investigation, and upon such information as was sufficient to convince men of ordinary judgment that each and all of the parts thereof were true.
    To these portions of the answer of defendant Aspinwall, the plaintiffs demurred.
    The portions of the answer of defendant Merrick, to which the plaintiffs demurred, do not differ so materially from the corresponding parts of Aspinwall’s answer, as to render a minute statement of them important.
    The demurrers were heard at Special Term, before Mr. Justice Campbell, who overruled them; and from the order entered on his decision, the plaintiff appealed to the General Term.
    Black, for plaintiff, appellant,
    cited Cook v. Sill, 3 Sandford, 850; Howard v. Thompson, 21 Wend. 319; O'JDonogue v. McGovern, 22 Wend. 26; Fry v. Bennett, 5 Sand. 68.

      De Forest and Emerson, for defendants,
    cited ^orn v. Blanchard, 5 John. 508 ; White v. Nichols, 3 How. J^- R. 269; Rex v. Bailli, 2 Esp. N. P. R. 91; Fairman v. Ives, 5 B. & Aid. 642.
   By the Court.

Campbell, J.

The defendants, as a committee of the Trustees of the College of Pharmacy, in the city of New York, made a report which was adopted by the Board, and ordered to be transmitted to the Secretary of the Treasury-of the United States. The plaintiff had been appointed Inspector of Drugs for the port of New York, and the report contained charges tending to show his incompetency for the office which he held, and indeed the report was made and ordered to be sent to the Secretary of the Treasury with the view of effecting the removal of the plaintiff from his office.

In the complaint certain portions of this report are set forth in tbe words of tbe report itself, and tbe plaintiff charges that they are libellous.

Tbe defendants answer and set up tbe facts stated, that tbe report was made by them on behalf of tbe College of Pharmacy, and that it was transmitted to the Secretary believing it to be true, and after careful inquiry, and that it was a privileged communication, and they aver in conclusion that tbe statements contained in tbe report are true.

To these answers the plaintiff has demurred.

The facts pleaded show a privileged communication, that is, a communication privileged, if it was made in good faith, without malice, and with probable cause as to the truth of the statements. That the report of the defendants was made to the Board of Trustees, and by them ordered to be sent to the Secretary, does not constitute an unauthorized, nor gratuitous, nor unnecessary publication, which would take away the privilege. The defendants were a Committee of Trustees, and they make the report to their own body, by whom it was contemplated to make the transmission to the Secretary of the Treasury. It is within the principle established in this state, in Branderzee v. McGregor, 12 Wendell, 545, where it was held that the privilege was not lost by the publication of a¡ petition which others read who did not sign it. I cannot doubt but this is a privileged communication, and that the plaintiff can recover only by showing malice and want of probable cause.

But there is another serious objection to the demurrer. The answers allege that the statements in the report are true. If true, the defence is of course perfect. But the plaintiff supposes that a general, averment of their truth is not sufficient. I think he has mistaken the rule in Fry v. Bennett. It is simply this, that where the defamatory charge is made in general terms, it is not sufficient to set up in the answer that such charge is true.

The justification must be made in such cases by a specification of the facts which are relied on to establish its truth. But even in such a case, where the charge is general, and the answer alleged that the charge is true, I am inclined to the opinion the defect should be cured, not by demurrer, but by an application to compel the defendant to make his answer more definite and certain.

In tbe present case, tbe report complained of, and wbicb is set forth in tbe complaint is, in the main, made up of specific charges tending to show tbe plaintiff’s incompetency for tbe position be occupied, and a general averment that tbe statements in tbe report were true would perhaps be all that was necessary. There may be an exception of one or two items in tbe charge, wbicb are uncertain, and should be made more definite.

We are of opinion, upon tbe whole case, that there is no ground upon wbicb tbe demurrers can be sustained. Tbe orders appealed from are therefore affirmed, with costs.


author: Oakley, Ch. J.

text:
    Morgan L. Ogden v. Theodore Des Arts and George L. Heuser.
    The plaintiff undertook to institute a suit against the Collector of New York, to establish that mustard, and canary, and other seeds, were not chargeable with the payment of duties under^ihe tariff of 1846, and the defendants, and other importing merchants, signed a written agreement, by which they bound them-Belves to pay to him one-third part of the sums which should be recovered by them respectively, as a return of duties exacted from them on their importations of such seeds.

      Held, that the agreement was not confined to a return of duties that had been previously exacted from the parties signing it, but embraced all that should, thereafter be returned to them, in consequence of the judicial determination that the plaintiff undertook to obtain.

      Held, that the agreement thus construed was not liable to the imputation of champerty, but could be enforced as to all duties returned without suit. Judgment affirmed.
    (Before Oakley, Ch. J., Dues and Campbell, J.J.)
    Feb. 6; Feb. 24, 1855.
    Appeal by defendants from a judgment at Special Term in favor of plaintiff for $588.85, damages and costs.
    Tbe action was founded upon tbe following agreement in writing, wbicb was signed by tbe defendants and tbirty-five other persons, and mercantile firms, in tbe city of New York, importers of tbe seeds mentioned in tbe agreement:
    “ Morgan L. Ogden having undertaken to carry on, at bis own expense and risk, a suit at law against the Collector of tbe port of New York, to establish’ that mustard-seed, canary-seed, and certain other seeds, are not chargeable with any import duty, under the Tariff Act of 1846, we, the undersigned, in consideration thereof, hereby agree and engage to allow and pay the said Morgan L. Ogden one-third part of such sum or sums which may be recovered by us respectively, as return of the duties exacted under the said act of 1846, on our importations of such seeds; it being understood, that if nothing be recovered, we are not to pay any thing for services or expenses of any description.
    “ New York, August, 1848.”
    The complaint averred that in pursuance of this agreement, the plaintiff had instituted two suits, one of them in the name of the defendants as plaintiffs, in the Circuit Court of the United States for the Southern District of New York, against the Collector of the port, for the purpose of establishing that seeds such as specified in the agreement were not chargeable with any duty under the Tariff Act of 1846, and that in the month of October, 1850, a final judgment in each of the suits was rendered in favor of the plaintiffs''. That by such judgments it was judicially determined that the seeds so imported by the defendants, and the other merchants, who had signed the agreement aforesaid, were not chargeable with the duties that had been levied and collected thereon, and that the exacting of such duties was illegal and invalid. That the plaintiff, in further execution of the agreement on his part, made repeated efforts to procure the acquiescence of the' Secretary of the Treasury in the principle so judicially determined, and that in consequence of these efforts, and of the judgment so rendered, such acquiescence was obtained, and the Secretary of the Treasury, by a printed circular, dated February 4, 1851, addressed to the collectors, and other officers of the customs, throughout the United States, instructed them not to collect thereafter any duties upon the seeds mentioned in the agreement aforesaid, and to issue certified statements for the return of all-such duties as had been exacted, and paid under protest. . That in consequence of these instructions, the defendants had recovered several sums of money as a return of duties that had been exacted from them, and particularly had recovered and received the sum of $119.60, on tbe 14th Eebruary, 1851, as a return of duties exacted from them on an importation of seeds made by them on the 18th of January, 1851; and on the 19th of April, 1851, had recovered the further sum of $1,197.60, as a return of duties upon various importations of seeds made by them between the 20th of November, 1849, and the 80th of July, 1850; that the one-third part of the sums so recovered amounted to $439.09, which the defendants, although requested, had refused to pay to the plaintiff, as they were bound to do by their agreement. For this sum, with interest, judgment was accordingly demanded.
    The answer of the defendants admitted the execution and delivery of the agreement, and the receipt by them of the return duties, mentioned in the complaint, but insisted that by the true construction of the agreement it applied only to duties which had been exacted and paid when the agreement was made, and not to any duties that might thereafter be exacted, — consequently that the agreement did not embrace any of the return duties mentioned in the complaint, one-third of which the plaintiff claimed unjustly to recover. The defendants also claimed to recover from the plaintiff the sum of $172, with interest, being one-third of the moneys recovered and collected by him in the suit against the collector, and which, against their wishes and without their consent, he retained and withheld from them. To this counterclaim there was a reply.
    The cause was tried before Hoffman, J., without a jury, on the 28th- of December, 1853 — who, after hearing the evidence and the arguments of the counsel, made his decision, in writing, as follows:
    The following are the facts found by me upon the trial of this cause:—
    That the written agreement mentioned and set forth in the complaint, and dated August, 1848, was duly proven. That the plaintiff, in the spring of 1850, commenced a suit for the settlement of the question under the tariff; that such suit was properly instituted. It was with the authority of the defendants, and in-their names. That the duties which accrued and had been paid by the defendants, prior to the date of the agreement,-amounted to $497.40. The duties between that date and the 22d June, 1849, were $516, making together the sum of $1,013.40. The suit of tbe defendants, instituted in tbe spring of 1850, was for tbe recovery of those duties specifically.
    Tbe trial in tbis suit came on in tbe month of June, in tbe year 1850. A verdict was rendered for tbe plaintiff. A bill of exceptions, however, was filed, and proceedings stayed. On tbe 10th of October, 1850, final judgment was entered in favor of tbe plaintiffs in the suit, the defendants here.
    On or before the 29th of November, 1850, tbe above sum, with interest, was paid, and was received by tbe present plaintiff, who accounted to tbe defendant for tbe amount, retaining bis own third. That tbe sum of $172, part of tbe amount so retained, is demanded by tbe defendant in bis answer. That after tbe final judgment, in October, 1850, applications were made, renewed, and earnestly pressed at tbe Treasury Department, to obtain a circular to Collectors, adopting tbe principle of tbe decision at tbe Circuit, and instructing them no longer to demand such duties as bad been previously paid upon tbe articles in question. These exertions did not succeed until the 4th of February, 1851, when a circular to that effect was issued.
    I also find, that decisions upon tbe construction of tariff laws, -made by judges in tbe Circuits, do not necessarily bind the Treasury Department. That although recovery may be bad in tbe given case against tbe Collector, yet tbe same duties continue to be exacted until tbe Secretary of tbe Treasury coincides with tbe decision, or submits to it, or is bound by a decision of the Supreme Court, when be issues directions for tbe government of Collectors in future cases. Tbe final judgment, as before observed, was obtained on tbe 10th day of October, 1850, and the circular from tbe Treasury Department issued on tbe 4th February, 1851. In tbe mean time, and between tbe 20th November, 1849vand tbe 80th July, 1850, further duties bad been paid by tbe defendants, under protest, to tbe amount of $1,197; and tbis - amount was received back by tbe defendants on tbe 19th of April, 1851.
    Another sum of $119.60 was paid by the defendants for such duties, on tbe 18th January, 1851, and was returned to them on tbe 14th February, 1851.
    And my conclusions of law upon tbe above-stated facts, and the evidence, is, that the plaintiff is not, upon tbe true construetion of the agreement of August, 1848, restricted to the proportion, of one-third upon the duties paid before the date of the same, but that such contract covers, and was intended to cover, all duties, the recovery of which should be secured by any suit which might be instituted, or would be secured by the institution of a suit; that as he was to bear all the expenses of any suit, there was nothing to restrict him from commencing suits for all the parties; from instituting successive suits on behalf of these defendants, to recover the duties paid, down to the judgment in October, 1850, as well as for the recovery of those duties, for which the suit was actually brought. That he might have resorted to actions which would insure recovery, instead of the Treasury Department, to obtain summary and final relief.
    That the plaintiff is entitled to his per centage upon all duties paid before the judgment of October, 1850, to recover which suits could have been instituted, and which duties were subsequently refunded; but that he is not entitled to such per centage on any amount paid for duties after the said judgment. And that the defendant is not entitled to recover back the sum of $172, mentioned in his answer.
    The plaintiff is therefore to have judgment for one third part of the sum of $1,197, or $899, with interest, from the 19th day of April, 1851, and costs.
    The defendant’s counsel thereupon took the following exceptions to the decision of the Justice:—
    I. They except to the decision that the agreement of August, 1848, covers, or was intended to -cover, all duties, the recovery of which should be secured by any suit which might be instituted, or which could be secured by the institution of a suit.
    TT. They except to the disallowance by the Justice of the claim of defendants, set up in the answer to recover the $172, withheld by plaintiff from the duties collected in the suit in the name of defendants.
    TTT- They except to the decision of the Justice that the right of the plaintiff under the agreement to receive one-third of the sums which might be recovered for duties illegally exacted, extended to duties exacted after the making of the agreement.
    IY. They except to the decision of the Justice that the said right of plaintiff extended, to duties exacted after the verdict in the suit of Boving & Witte.
    Y. They except to the decision of the Justice that the said right of plaintiff extended to duties exacted after the verdict, in the suit of defendants against the Collector.
    YI. They except to the decision that the plaintiff is entitled to judgment for $899, with, interest and costs. . ..
    Jernigan,. for the defendants,
    now argued in support of . the exceptions, and contended that the Judge, at Special. Term, had erred in his finding of the facts, as well as in the construction which he had given to the agreement of the parties; that the agreement, hy its legal construction, was limited to duties that had been previously exacted from the merchants signing it, since it was only for the recovery of such that the ;plaintiff had any authority to institute a suit or suits, and that it was a necessary consequence of this construction that the defendants were entitled to recover the sum of $172, claimed by their answer. The counsel also insisted that the agreement was on its face illegal and void for champerty, and could not therefore be enforced by action. He cited upon this point, among other cases, the following : (Small v. Mott, 22 Wend. 406; Merritt v. Lambert, 10 Páige, 352; Wallis v. Lonbat, 2 Denio, 607; Harrington v. Levy, 2 Myl. and K. 590.

      W. A. -Butter, for the plaintiff,
    insisted that the agreement covered, and was intended to cover, all duty moneys that should thereafter be returned to the defendants, whether the same should be returned-to them as the fruits of a suit at law prosecuted in their names, or should be obtained from the Treasury Department without suit ;■ and that the agreement ought to be; construed in reference to the acts of Congress regulating the collection and return of duties, the usage of the Treasury Department, and the relations and interests of the merchants who signed it. He cited (5- U. S. Stat. 566, § 24; id. p. 348, § 2; -id. -p. 638-; 9 U. S. Stat.-p. 43, §§ 2, 8, 11; id. p. 84, §■ 2 Lawrence v. Allen, 7 Howard, -785; The United States v. Southmayd, 9 How. 637.) That as to the sum of $172 claimed by the defendants in their answer, the-plaintiff was justly entitled to retain it, and that at any rate, the defendants were not entitled to recover it back, in the present action.
   By the Court.

Oakley, Ch. J.

We see no reason for dissenting from the finding of the Judge at Special .Term upon the questions of fact that he was required to decide. We think his decision was fully sustained by the evidence before him.

The cause, therefore, turns entirely upon the question of law, what is the construction of the agreement of August, 1848, which, in order to carry into effect the intention of the parties, as collected from the terms of the agreement and the circumstances under which it was made, we are bound to adopt? This question we have fully considered, and we are all satisfied that the true and reasonable construction of the agreement is that which was given to it by the counsel for the plaintiff, and, consequently, that it will be our duty to affirm the judgment that he has obtained.

It seems to us that the meaning of the agreement, judging from its terms and its object, was plainly this, that if the plaintiff should procure, as he had.undertaken to do, in a suit to be instituted by him for that purpose, a judicial determination establishing that the seeds mentioned in the agreement were not chargeable with the duties which the Collector was then exacting, the importing merchants who signed the agreement would allow and pay to Mm one-third of the sums which, in consequence of such a determination, should be received by them -respectively from the Treasury Department, as a return of duties that, at any time, previous to such return had been illegally exacted from them; and we agree with the counsel for the plaintiff, that we are bound to presume that the agreement was made-with a full knowledge of the provisions of the various acts of Congress, by wMch. the powers and duties of the Treasury Department in relation to the 'return of duties are regulated and defined. A suit was to be-instituted for the purpose of establishing a principle, that the Treasury Department might elect, or would be bound to -follow, and the agreement was meant to embrace every sum that the principle thus established, might induce or compel the head of the Department to refund. Should he choose to abide by a determination in a circuit court against the practice that had prevailed, the return -of duties would be an exercise of bis ■ discretion; should he suspend his action until a final determination in the Supreme Court of the United States, it would then become a positive duty, but in either case the return of duties, at whatever time they had been previously exacted, would be equally a consequence of the judicial determination which the plaintiff, at his own risk and expense, undertook to procure, and would therefore entitle him to a proportional share of the benefits which, through his means, and by his exertions, the importers who signed the agreement would be enabled to secure. The words, therefore, “ recovered by us respectively,” as used in the agreement, are not to be understood in their strict technical sense, as confined to a recovery by judgment, thus limiting the compensation of the plaintiff to one-third of the sums for which judgments should be rendered, and imposing upon him the necessity, in order to secure the reward for which he stipulated, of instituting as many separate suits, and obtaining as many separate judgments, as there were parties, by whom respectively the agreement was signed. It is manifest, that when the agreement was signed, but a single suit was contemplated by the parties as necessary or proper to be instituted, and that, for the plain reason, that it was known to them all that a favorable determination, in a single suit, would be sufficient to establish the principle for which they contended, and entitle them to a return of duties that had been, or might be, illegally exacted. Let the word received” be substituted for recovered,” and the agreement is at once freed from ambiguity, and, as it seems to us, the right of the plaintiff to retain his judgment made apparent. It cannot be denied that the sum of which the one-third has been adjudged to the plaintiff, was received by the defendants as a return of duties exacted from them under the tariff act of 1846, upon their importation of the seeds mentioned in the agreement; and it is equally clear, that it was by the efforts of the plaintiff in the faithful performance of his undertaking, that this return was secured to them. It is covered, therefore, alike by the words and the spirit of their agreement. We are indeed convinced, that if there was any error in the judgment of the court at Special Term, it was an error in favor of the defendants, by not allowing to the plaintiff one-third of the sum .which was paid for duties by the defendants, on the 18th January, 1851, and refunded to them on the 14th of February, in the same year. The propriety of the distinction that has been made between duties paid before, and those paid after - the judgment in October, 1850, we think may be seriously doubted.

The claim of the defendants, to recover from the plaintiff $172 of the moneys collected by him on the judgment in their favor against the Collector, assumes that by their agreement he was entitled to retain one-third only of those duties that had been exacted from them before the date of the agreement, and as we have rejected this construction of the agreement, it is of course disallowed. Another objection was stated to this claim that seems equally fatal. When the defendants received the residue of the proceeds of the judgment against the Collector from the plaintiff, they permitted him to retain without objection the sum which they now demand. Their doing so was equivalent to a voluntary payment, which, when made with a full knowledge of facts, can never be recovered back.

An objection to the plaintiff’s recovery, and, therefore, a ground for the reversal of the judgment in his favor, was strongly urged upon the argument before us, that is not raised by the pleadings, and does not appear to have been taken in the court below, namely, that the agreement upon which the action is founded is, upon its face, illegal and void for champerty. The objection is not destitute of plausibility, but in our opinion, without adverting to other considerations, it is sufficiently refuted by that construction of the agreement which we have adopted.

It may be true, notwithstanding the doubts that seem recently to have been expressed by a learned Judge in the Court of Appeals, (Hoyt v. Thompson, opinion Paige, J.; 1 Selden, 347,) that the common law doctrine of champerty is still in force, and that it is just as applicable to agreements for the recovery of money in personal actions as to those for the recovery of land in real; but when we remember that the doctrine had its origin in a state of society widely different from our own, and was adapted to meet evils that no longer exist, we cannot believe that it ought to be extended by construction beyond the eases which its definition, in its strictest sense, is found to embrace. Now the only cases which this definition, in its proper terms embraces, are those in which the person who at his own expense and risk carries on a suit in tie name of another, is to receive for his compensation a certain share of the avails of the suit, that is, (when the suit is for money,) of the sum" for which a judgment is sought to be obtained. (2 Black, Com.,. 1 Bouvier’s Law Dictionary, 218.) Hence, if the imputation of .champerty is applicable, at all, to the agreement, of the parties before us, which we do.not assert, it applies only to the .moneys that it was expected would be, and which in fact were, collected in the suit against the Collector, and not at all to the duties, which as illegally exacted, it was expected yrould be, and which in the result were, .returned, without suit, by the Treasury Department, and it .is to such returned duties alone that the present action relates. Had the agreement contained no mention of a suit, but had promised a compensation to the plaintiff-only from the duties that by argument or solicitation he might prevail upon the head of the treasury to return, no one, .probably would have asserted, or supposed, that, it was liable to the imputation of champerty, but such -in reality is the -substance of .the agreement,- with the exception of the singlesuit which the plaintiff undertook to institute.. This exception may perhaps have had the effect of rendering void- at common law that part of the agreement in which it is found, but, according to a -well-known distinction, it could not have the effect of vitiating the residue of the agreement.

The moneys collected -in .the suit against the Collector-having been voluntarily paid, cannot be recovered back, and those which the plaintiff now seeks to recover, the defendants, by their agreement, are bound to pay.

The judgment against them must therefore be affirmed with costs.