
    J. W. Clark vs. Thomas Creitzburgh, John S. Linsser, John Kennedy and James Nelson.
    To support an action for a libel, tlie plaintiff’s name need not be mentioned in the writing, it is sufficient that there; is a description of him, by which he may be known.
    The plaintiff, in the month of March, 1824, being the owner of a drove of cattle, employed one John Thornton to slaughter them, and sell the beef in Chax-leston market. On the 30th March, Thornton issued the ■ following ad vertisement: — “ Fresh Beef in Market. My friend having brought in á drove of very superior Kentucky cattle, and the butchers refusing to give cost for them, I have (rather than see the stock sold below their real value) consented to butcher them, and offer them in the market, at stalls No. 27 and 45. The citizens and shippers will find it to their advantage to call and see for themselves, as they will get far better beef, and at a lower price than usual. John Thornton, March 30th.”
    On the next day the defendants published the following; — Fellow-citizens, observing a piece in this morning’s Mercury, signed “John Thornton,” who advertises fresh and cheap Kentucky beef, at stalls Nos. 27 and 45, at reduced prices, and stating his beef superior to what we have, and at a lower rate, it is false ! Concerning that the butchers (as he vulgarly calls them) would not give a fair price for his friend’s cattle, and he, a cobler, would undertake to butcher them, and impose the murrain beef on our community as fresh and good, it can be proved that these fresh cattle have been dying a natural death as fast as possible since they arrived at this market, and our butchers would not have any thing to do with such sort of trash, as they are permanent victuallers, and not transient, as Mr. Thornton and his friend, who make their appearance but once a year, and then wish to poison the people of this city with their unwholesome meat. If the commissioners look into this business, they would prosecute the offenders and do the good citizens justice. Also, it is, well known to most of the drovers who furnish this market from Kentucky, that when their cattle are fresh and in good order, they get generous prices for their stock, or they would not take the trouble of driving them repeatedly to this market, and return home satisfied.— (Signed,) Many Victuallers. Charleston, March 30th, 1824.”
    On this publication, the plaintiff brought an action on the case for a libel against the defendants, who were butchers in Charleston.
    It was proved that the advertisement complained of as libellous was published by the defendants, and that the charges against Clark’s beef was untrue. The commissioners of the market had examined into the matter, and had made a publication favorable to his beef. Many of the witnesses knew Clark as concerned with Thornton, really as the owner of the cattle, they being butchered by Thornton for Clark. The beef was good, and the sale of it much injured by the publication of the butchers. It was cheaper than that of the butchers.
    The defendant moved foi a nonsuit on the ground, that the description of the individual alluded to in the advertisement of “ Mam Victuallers,”'' as Thornton's friend, was so vague that extrinsic evidence was inadmissible to shew who was the person meant.'
    His honour, Mr. Justice Waties, granted the-nonsuit, assigning the following reasons : -
    Waties, J; .It is with reluctance that I grant a nonsuit in this case, as I do not like to withdraw the evidence from a Jury ; but. the ground, on which it is moved for, appears to me to. requiredt.
    The action is brought for a libel on the plaintiff, but he is- not named in it, nor is he described in any way, which obviously points him out as the person intended. The libel charges “John Thornton and his friend with wishing to poison the people of the. city with their unwholesome meat;” but it is not Shewn that the application of his “friend” was understood, by the public tornean the plaintiff, Clark. No witness has said that he so understood it, and 1 think this essentially requisite to support the action.
    The mischief of a libel consists in designating so plainly the person who is the-object of it, as to expose him to public odium or ridicule; but the application of-the “ friend of Thornton,” could not be considered as exclusively applicable to Clark, for Thornton may have had other friends; and it is an important fact, testified by him, that the butchers frequently accused one Randolph, (who-was concerned with him,) as well as Clark, for forestalling the market, which made the allusion. more ambiguous. .
    It is to be regretted, that instead of this action, the plaintiff had not brought a special one on the case, for it is fully proved that he had sustained material injury from the unwarrantable and malicious combination of the defendants.
    
      Petigru & Harper, for the plaintiff,
    now moved to set aside the nonsuit. The case should have been submitted to the Jury. There was ho doubt upon the evidence, as before the Co.urt below, .that the libel was published maliciously of the plaintiff, and that he had been injured ; and extrinsic evidence was competent to shew who was the person meant as the friend of Thornton. No libel can be so vague that it may not be rendered certain by averments and proofs. The description is certain, though the name is notmentioned. Suppose a person publish that a certain man is a thief, and afterwards say he meant á certain person by name, may not his declarations be given in evidence. . ■
    
      De Saussicre & Lance-, for the defendants.
    It was not sufficient to charge, that the plaintiff wished to sell murrain beef, but it must be charged that the act was done; and as the defendants prevented ■ it, it was no libel.-r-1 Com; Dig. .393, ,F. (14) ; 2 Esp. 89, 101; 3 Black. Comm. 125 ; Phil. Ev. 97; 4 Com. 1004.
   Curia per

Johnson, J.

The ground upon which it is understood the nonsuit in this case proceeded, was, that there'was nothing in the paper writing declared to be li-bellous, which pointed out the plaintiff as the person alluded to under the appellation of the “friend of John Thornton,”, and the total absence of any proof aliunde that he was intended to be designated by that term. In the argument here-, the counsel opposed to the motion, have further contended that it is so uncertain as to be incapable of being rendered so .by evidence aliunde; and they refer to a class of cases collected in Com. Dig. title Action on the Case for defamation, E. (14.) in which the general rule is, that if words are uncertain and cannot designate a particular person, no averment shall make them actionable; as if one say of three witnesses, one of you is perjured, none of them shall have, an action, because of the impossibility of ascertaining which one is meant. But I believe it never has been doubted that if an individual is pointed at, either by signs, paintings, or descriptions. he who can bring himself within them, may maintain an action; and the universal rule is that if the person can be ascertained it is wholly immaterial whether he.be described directly or indirectly.. As if one say to a servant “ thou servest a traitor,” the master shall have an action. So if one say “ this baker hath perjured himself,” A. a baker shall have an action with an averment that the speaking was of him. (Com. Dig, Tit. Action on the Case for defamation, E. 14.)

So much for the rale; we will now consider of the evidence. The witness, John Thornton, leaves no doubt as to whom he alluded in the printed advertisement of the 20th March by the appellation of “my friend.” it stales unequivocally that it was the plaintiff who brought the cattle to market, and at whose request he consented to butcher them and offer them for sale. The supposed libel or publication is professedly a direct reply to Thornton’s note, and it appears to me that there can be as little doubt that the person of the plaintiff was as well designated by the terms Mr. Thornton and Ms friend, as Thornton was himself. The evidence appears to me to be plenary; but if it admitted of a doubt the Jury ought to have been charged with the fact.

There is another view of this subject. The last count in the declaration lays aper quod, the plaintiff was hindered from, and lossed on, the sale of his beef. This was 'a special injury sustained by the plaintiff, and whether the defendants designed it or not as an injury to him, the. act was unlawful and they are answerable for the consequences. I would compare it to the case of one lying in wait to beat an enemy, and by mistake he falls upon a friend-and beats him; nowhere it in very clear that itwould be no answer to an action brought by the friend that the injury was intended for another.

Nonsuit set aside.  