
    Emery Matthews, Respondent, v. Moses S. Beach & Alfred E. Beach, Appellants.
    When circumstances, that, could only be admitted in evidence, in mitigation of damages, are set up as a defence, they are a proper subject of demurrer.
    In an action for a libel, mitigating circumstances can only be pleaded, when the libel is justified.
    A demurrer to an answer, which specifies those parts of the answer, which are excepted to, as an insufficient defence, is not too broad. It must.be construed as applying only to the parts specified.
    Whether a publication, adjudged to be libellous, is merely a report of the proceedings before a police magistrate, or a positive affirmation of the truth of the facts, which it states, is not a question to be submitted to the jury. It is a question of - construction, which the court is bound, and is alone competent, to determine.
    In all civil suits, the question of libel, or no libel, when it arises solely upon the face of the publication, is a question of law, upon which, the jury must follow the direction of the court.
    It is no ground of exception, that the judge advised the jury, that under the circumstances proved, the damages ought to be more than nominal.
    The jury is bound to presume, that a libellous publication has not been explained, or retracted, unless the fact is proved by the defendant.
    Judgment, on demurrer, affirmed. Exceptions overruled, and new trial directed.
    (Before Oakley, Oh. J. Sandeobd and Dueb, J. J.)
    (November 21;
    November 29, 1841.)
    This was an action for a libel, and that the points argued, and the decision of the court, may be properly understood, it will be necessary to give the pleadings. They are as follow :
    City and County of New York, ss. The complaint of Emery- Matthews against Moses S. Beach and Alfred' E. Beach, respectfully showeth, that- on the 27th- day of June, in the year one thousand eight hundred and fifty, at the city of New York, the said Moses S. Beach, and Alfred E. Beach, under the name and firm of Beach Brothers, were the editors, printers, and proprietors of a certain public newspaper, printed and published in the said city, under the name and title of “ The Sun that on the said 27th day of June, A. D. 1850, the said Moses .S. Beach and Alfred R Beach, maliciously intending to wrong and injure the complainant, and to bring Mm into public scandal and disgrace, and to break him up and ruin him in his occupation and business, and to cause it to be believed that he was a swindler and cheat, and had obtained money by false pretences, did in a certain number of the said newspaper, headed and entitled “ The Sun,” New York, Thursday morning, June 27th, 1850, price, one cent, print and publish the following false, scandalous, and malicious libel of and concerning the complainant, and his business and occupation : that is to say,
    “An assault was committed last Tuesday night, on a respectable man named Peter N. Horsely, in Broadway, by two emigrant runners, named Adams and Matthews, who knocked Mm down and grossly maltreated Mm. The quarrel, it is represented, originated by Mr. Horsely, asking the fellows to refund money that had been paid to them by some of his friends for worthless steamboat tickets. The complainant appeared before Justice Lathrop, at the Tombs, and stated the circumstances, but the justice refused to issue a warrant. Proceedings were then entered into before the mayor, and means taken to bring the offenders to justice.”
    The complainant therefore prays judgment against the said Moses S. Beach, and Alfred R Beach, for the damages which he has sustained by reason of the premises, to the amount of one thousand dollars.
    And the above named defendants, for answer to the complaint in this cause, deny, on information and belief, that they published of and concerning the plaintiff in this action, the article in the said complaint contained and alleged to be a libel.
    And the said defendants deny that by the publication of the said alleged libel they intended to wrong and injure the plaintiff, or to bring him into public scandal or disgrace, or to break him up in Ms occupation, or business, or to cause it to be believed that he was a swindler or cheat, or that he obtained money by false pretences, as is alleged in said complaint.
    And they aver that they published an article in the words set forth in the complaint, in good faith, believing it to be true, and because they believed it contained information which it was important for the public to know, and as the report of proceedings, which took place before Justice Lathrop, as one of the police justices, of the city and county of New York, and they aver, on information and belief, that one Peter N. Horsely, in the said complaint named, did, on or about the 25th of June, 1850, or on some day thereafter, and before the 29th of said June, A. D. 1850, appear before Jeremiah Lathrop, one of the police justices of the city and county of New York, and make a complaint, which complaint the defendants believe to be true, that one Peter W. Adams, and one Matthews, had, on or about the 25th day of June, 1850, assaulted and beat the said Horsely, in the public street, in the city of New York, and they further aver, that the said assault, so complained of, was also represented by the said Horsely, and the defendants believe truly, to be committed upon him by said Adams and Matthews, or one of them, because he, said Horsely, then and there requested the said Adams and Matthews, or one of them, to refund certain money that had been paid to them, or one of them, by a friend of the said Horsely, of whose name, however, defendants are ignorant, some days previously, for a ticket, which it was represented, by said Adams and Matthews, or one of them, would insure the said friend, of the said Horsely, a certain passage on the Hudson river,' from the city of New York, to some other place on the said river, and which passage, the said ticket did not secure, and for which the said ticket turned out to be insufficient, but which representation of the said Horsely, the defendants believe to be substantially true.
    Defendants further aver, that said assault is the one referred to in the publication alleged in plaintiff's complaint to be libellous, and that said police justice, Lathrop, did, on or about the 28th day of June, 1850, issue a warrant for the arrest of said Adams and Matthews, or one of them, founded on the complaint of said Horsely, as aforesaid.
    The complainant, by his attorney aforesaid, demurs to the said answer of the defendants, for insufficiency, and states, as the grounds of his demurrer, that all the averments and allegations in the said answer contained, and each and-every one of them, from the words “ and they aver, that they published an article," down to the end of the said answer, are and is insufficient as a justification or defence of the said, libel,, to. bar or preclude the-complainant from having and maintaining his action, aforesaid, against the defendants, and that no complaint, made by one Peter N. Horsely, against complainant, or Adams, for an assault (either before, or after the publication of the libel), is a defence' or justification of the charge against complainant (in said libel contained) that the complainant had sold Horsely worthless steamboat tickets. The said answer is insufficient, because it does not state, that the complaint to the police justice was made before the publication of the libel; and it does not state that Horsely represented that complainant had.sold to his friend the worthless tickets, but the answer leaves it uncertain, which one of them, Adams or complainant, was charged before the justice with the assault; or which one of them he represented, had sold to his friend the worthless tickets; or on what day, whether before or after the publication of the libel, Horsely made his complaint and representation to the police justice.
    The demurrer was argued before Mr. Justice Campbell, at a special term, in May, 1851. Judgment, with costs, was given for the plaintiff.
    Upon the issues, made by the pleadings, striking out those parts of the answer that were overruled by the demurrer, the' cause was brought to trial, before Duer, Justice, and a jury, on the 7th October, 1851.
    The judge decided that the publication was admitted by the-answer, and that the only question was, whether the plaintiff' was one of the persons to whom the libel referred. The publication was therefore read without further proof.
    To this decision the defendants' counsel excepted.
    Several witnesses were then examined, on the part of the-plaintiff, but their testimony, as it has no bearing upon the questions argued, is omitted.
    The counsel for the defendants, in addressing the jury, insisted' that the damages ought to be no more than nominal, upon the grounds that the publication was a fair report of what had occurred in a public police office, and that it was plain that the defendants liad not acted from private malice, and there was no evidence that the plaintiff had sustained any damage.
    The judge charged the jury, in substance, that the publication was, on its face, a libel, and if they believed that it referred to the plaintiff, the amount of damages that might properly be given, was the only question they had to consider.
    That there was little weight in the circumstances that had been urged in mitigation of damages. The libel was not a mere statement of the proceedings before the police magistrate. It neither was, nor purported to be, a report of those proceedings. It was a distinct positive affirmation of the truth of the facts which it states, and was therefore a publication which the defendants could not be justified in making, unless they were prepared to establish its truth. That it was not necessary to show that the defendants were actuated by personal malice, or that the plaintiff had sustained any special damage. When a publication is libellous the law imputes malice to its author, and presumes that the person libelled sustained an injury, entitling him to a compensation in damages. That if the defendants, after a due investigation into the truth of the facts, had published a mere report of the proceedings before the magistrate, there would be some ground for saying that the damages ought to be no more than nominal. But the case was widely different. It was in evidence that the plaintiff had called upon the defendants, and had given them the opportunity of apologizing for, and retracting the libellous charges, and that they had promised to do so ; but this promise had not been fulfilled. The charges had not been retracted, and the plaintiff ivas, therefore, in a measure, compelled to bring his suit. Under these circumstances, the damages should be more than nominal. They should be sufficient to indemnify the plaintiff, and to operate as a penalty upon the defendants.
    The defendants’ counsel excepted to this charge, and in the case, the exceptions are stated as follows :
    His honor having concluded his charge, defendants’ counsel asked him to instruct the jury that it was their right to interpret the alleged libel, and say whether it was the affirmation by defendants of any fact as within their own knowledge, or the statement of what had been represented in a public proceeding.
    
    His honor refused so to charge, and said to the jury that, as matter of law, the libel was, and must be taken to be a direct affirmation by the defendants, as he had already stated to them.
    
      The counsel for the defendants then duly excepted to the-refusal to charge, and to the ruling of his honor, just stated, as. to the construction of the libel as matter of law.
    The defendants’ counsel also asked his honor to state to the' jury that there was no evidence that the defendants had not' published an explanation or retraction of the article in question.
    His honor said to the jury that they must assume that there had been neither; because, if there had been, the defendants could, and should have proved it.
    To this instruction the defendants also, in due form, excepted.
    The defendants’ counsel then observed that his honor had infringed on the prerogative of the jury, in stating that the damages should be more than nominal.
    His honor then said to the jury that he did not mean to tell them what amount of damages they should give—that was a question for them, and if they thought the plaintiff should only recover nominal damages, they had a right to say so by their verdict.
    The defendants’ counsel excepted to what his honor had told the jury as to what, in his opinion, should be the damages ; and also excepted to his having given them his opinion at all on the subject of what the damages should be.
    The jury found their verdict for the plaintiff, and assessed his damages at five hundred dollars, for which sum, with costs, judgment was duly entered.
    The defendants appealed to the general term, and the cause was now before the court upon the whole record and on the hill of exceptions,
    
      J. T. Brady, for the defendants.
    The judgment upon the demurrer was erroneous. The' demurrer ought to have been overruled as too broad. It was to the whole answer, although a part only was alleged to be bad. Passing over this objection, still the demurrer ought not to have been allowed; for although the facts stated in that part of the answer, which was held to be bad, may not have amounted to a justification, according to the decision of this court, in Stanley v. Webb (4 Sand. S. C. R. p. 21,) yet they were admissible in evidence in mitigation of damages, and for that reason ought to have been retained in the answer (Code, §§ 89, 154, 159, 165). But, admitting that these mitigating circumstances were not matter proper to be inserted in the answer, this part of the answer was then irrelevant or redundant, and as such was not a proper subject of demurrer; it might have been stricken out upon motion (Code, §§ 153,160).
    If the judgment upon the demurrer shall be sustained, still the errors of the judge upon the trial, as they appear upon the bill of exceptions, entitle us to a new trial. The judge erred in holding that the publication was admitted by the answer, but this exception is not meant to be proposed, since it may be said that the publication was afterwards sufficiently proved! But the principal error of the judge was, his refusal to let the jury pass upon the meaning of the publication, and his undertaking to settle its construction as a question of law. The decision of the court of errors in Dolloway v. Turrill, 26 Wend. 383, conclusively shows, that in doing so he invaded the province of the jury. That decision has established the right of the jury, to determine in all eases, civil as well as criminal, whether a publication is libellous or not. They have an exclusive right to judge of its meaning and application (Ch. J., This is saying that in libel suits the jury are judges of the law, as well as of the facts ; to my ears it is a new and strange doctrine). It is the doctrine that the court of- errors has estar blished, for their decision, in the case referred to, can bear no other interpretation; and if it has not been followed, it is because the attention of judges has not been directed to it. The judge also erred in charging the jury that they must assume that the -defendants had not published any explanation or retraction of the article, said to be a libel (Johnson v. Johnson, 4 Wend. 630); arid his charge throughout, and especially upon the question of malice, was calculated to make an erroneous impression upon the minds of the jury, and to give a false direction to their verdict. In effect, he instructed the jury, not only to find for the plaintiff, but to give him more than nominal damages. But for his dharge, the damages would probably have been only nominal.
    
      L. Gardenier for plaintiff.
    
      The demurrer is limited to the new matter in the answer, and does not embrace the issues made by the denial of averments in the complaint, and it was properly allowed, since the new matter is not a bar to the action, although it is pleaded as such. It is not offered as “ mitigating circumstance, nor could it be, as the truth of the libel is not justified,” Stanley v. Webb, 4 Sand. S. C. R. 31; Fry v. Bennett, 9 Leg Ob. p. 336 (ante p. 54) Graham v. Stone 6 How. P. R. p. 15. As to the bill of exceptions, not one of the exceptions is well taken. The judge was clearly right in refusing to instruct the jury, that it belonged to them to interpret the alleged libel, and to say whether it was the affirmation of any fact, as within the knowledge of the defendants, or the statement of what had been represented in a public proceeding, and he was right in charging, as matter of law, that the libel was, and must be taken to be, a direct affirmation by the defendants, of the truth of the facts, which it stated. (Root v. King, 4 Wend. 113; 7 Cow. 607 and 637; Gardner v. Picket, 19 Wend. 186; Nichols v. Goldsmith, 7 Wend. 161.) The judge was also right, in refusing to charge, that there was “ no evidence, that the defendants had not published any explanation or retraction of the libellous article, and in instructing the jury, that they must assume, that none had been published. (Root v. King, Gardner v. Picket, ut sup. Hotchkiss v. Oliphant, 3 Hill 546.) The allegation, that the judge invaded the province, and infringed the right of the jury, by stating that the damages should be'more than nominal, is groundless, since he also told them, that he did not mean to direct them, as to the amount of damages; and that they were at liberty to give nominal damages, if they thought no more should be recovered. He had a perfect right, to express his opinion, to the jury, upon the question of damages, if he did not positively instruct them. (Washburn v. Cook, 3 Denio 101; Jackson v. Zimmerman, 12 Wend. 299; Dod. v. Lyon, 10 John. 447; 3 Hill 180; 4 How. P. Rep. p. 448.
   By the Court.

Oakley, Ch. J.

We cannot say that the demurrer is too broad. It is true, it commences by stating that the plaintiff demurs to the answer, which, unexplained, means the whole answer ; but it immediately specifies the parts of the answer to which exception is taken, and to which, as constituting an insufficient defence, the demurrer is meant to apply. The specification corrects the previous error, and were it otherwise, the mistake is purely formal, and as such, is amendable of course, in any stage of the proceedings.

Confining the demurrer to the new matter in the answer, the judge, at special term, could not have done otherwise than allow it nor can we hesitate to affirm his decision. The allegations in this part of the answer, substantially are, that the alleged libel was a faithful report of the ex parte proceedings before the magistrate, and it is exactly this defence, that in Stanley v. Webb, we have adjudged to be insufficient. The decision in that case has been too frequently represented as that of a single judge, but it was, in truth, the judgment of the court at a general term, which, consequently, we are bound to follow. In saying this, we are not to be understood as intimating that we entertain any doubt of the propriety of a decision, which is sustained, as it seems to us, not only by an irresistible force of authority, but by cogent reasons of public policy.

It was said that, admitting that the new matter demurred to, does not amount to a full defence, still the facts set forth are admissible in evidence, in mitigation of damages, and therefore ought not, by sustaining the demurrer, to be struck out from the answer. But we adhere to our decisions in Newman v. Otto (4 Sand. S. C. R. p. 668), and in Fry v. Bennett, that in actions like the present, mitigating circumstances can only be pleaded, when the truth of the libel is justified, and that when pleaded, it must be stated, that they will be given in evidence, solely in mitigation of damages, since otherwise the plaintiff has a right to believe that they are relied on as a bar to his action, and upon that ground may justly demur to them. In this case, the libel is not justified, and the mitigating circumstances are not pleaded as such, but as a defence.

It was also said, that if the new matter in the answer is not a defence, and ought not to have been inserted at all, the plaintiff, instead of demurring, should have moved to strike it out as irrelevant or redundant. The answer is, that matter set up as a defence, cannot be treated as irrelevant or redundant. It may be struck out as frivolous, but in all cases, when such a motion can properly be made, the plaintiff has an election, to make it, or demur. For these reasons, the judgment on the demurrer is affirmed.

We pass to the exceptions taken on the trial.

The objection to the ruling of the judge, in permitting the libel to be read to the jury, without proof of publication, upou the ground that its publication was admitted by the answer, was, in a measure, abandoned. We think that the judge rightly construed the answer, as making an issue, not upon the publication of the libel, but, solely, upon its application to the plaintiff; but if this construction was erroneous, the error is immaterial, since the publication was conclusively proved in the progress of the trial.

The next exception is that upon which the counsel for the defendant seemed to place his chief reliance. It is, that the judge erred in the construction, which, as a matter of law, he gave to the libel, and in his refusal to submit the question of its true meaning to the consideration of the jury. We are of opinion, however, that the judge was entirely correct in the charge that he gave, and in his refusal to alter it. The construction of the libel was, under the circumstances, an unmixed question of law, which he was bound, and was alone competent, to determine. We agree with him, that the publication in question, is a distinct and positive affirmation of the truth of the libellous charges which it contains, and is not a mere statement of the representations that had been made to a magistrate, in a public proceeding ; and such being its legal and manifest construction, he would have committed a grave error, had he submitted the interpretation of the libel, as a question of fact, to the determination of the jury. It is undoubtedly true, that there are cases, in which the meaning and application of a libel, as questions of fact, ought to be determined by the jury, without any positive instruction on the part of the judge; but this is only when the meaning and application depend upon extrinsic facts, upon which the jury must of necessity pass, or when the terms of the publication are so ambiguous, that they arc just as capable of being understood, in an innocent sense, as in that, which alone would render them, actionable. (Tempest v. Cham bers, 1 Starkie, 56; Delany v. Jones, 3 Esp. R. 191; Decker v. Tabor, 12 John. R. 240; McKinly v. Rob, 20 John. 356; Goodrich v. Wolcott, 3 Cow. R. 231.) But where no extrinsic facts are necessary to be proved, and the words of the publication are not susceptible of being understood, in any other than a libellous sense, the judge is bound tó give a positive instruction to the jury, and the jury equally so, to follow his direction. The question is then an unmixed question of law; and were it true, that in all cases, civil as well as criminal, it is the exclusive province of a jury, to interpret an alleged libel, it is manifest, that no demurrer would lie to a declaration, upon the ground, that the words charged are not actionable ; nor upon the same ground could a judgment ever be arrested.

We have been told, however, that the doctrine, that libel or no libel is, in all cases, a question for the jury, novel as it may seem, has been established, as the law of this state, by the decision of the court of errors, in Dolloway v. Turrill (26 Wend. 383). Nor can it be denied that the language of one or two of the senators, who delivered opinions in that case, may be fairly cited in support of the argument; but upon examining the report, it is evident," that the judgment, reversing that of the supreme court, proceeded upon the sole ground, that the words of the alleged libel were plainly susceptible of an innocent sense, and, consequently, that the question in what sense they were in fact used, ought to have been submitted to the jury. The decision, therefore, was not an arbitrary change of the law, as it has always been understood and administered, but is plainly reconcilable with the prior cases to which we have referred.

The remaining exceptions it is scarcely necessary to notice.

If the defendants had published a retraction of the libel, the fact, if proved, would have operated to diminish the damages. The burden of proving it, therefore, rested upon them. In the absence of such proof, the non-existence of the fact, was a just and legal inference.

The judge had a perfect right to express his opinion to the jury, upon the question of the damages that might reasonably be given, and the opinion that he gave was fully justified by the evidence. The advice given by a judge to a jury, is never a subject of exception, although, when erroneous, it may, in some cases, furnish a sufficient motive for an exercise of the discretion of the court, in granting a new trial.

The exceptions are overruled, and the judgment at special term affirmed, with costs.  