
    VIELE a. GRAY.
    
      New York Common Pleas;
    
    
      Special Term, December, 1859.
    Defamation.—Complaint.
    To say of a man, after a libel has been published, that he is the author of it, is actionable per se.
    
    Where one of a board of public officers, at a meeting of the board—while a resolution was pending, recommending the employment of the plaintiff—declared, that he knew that the plaintiff was the author of an obscene caricature, which had been published to ridicule one of the official acts of the board, and which was also a libel upon individuals,
    
      Held, 1. That the charge was pertinent to the subject under discussion, and was conditionally privileged.
    2. That, to entitle the plaintiff to maintain an action for defamation, he must establish that the charge was made without reasonable or probable cause.
    3. That the defendant having declared that he knew that the plaintiff was the author of the caricature, without indicating what he relied upon for making the assertion, an averment in the complaint that the plaintiff was not the author, and had no complicity therein, was sufficient, prima facie, to show that there was a want of probable cause.
    Where the occasion upon which the words are spoken repels any presumption of malice, and proof of it is necessary to maintain the action, it is sufficient to aver that they were spoken maliciously, without setting forth, in the complaint, the facts and circumstances which show the existence of malice.
    What is meant by the term malice, explained; and the dictum, in Brommage a. Prossor (4 JB. & Q., 247), that there are two kinds in actions for defamation, and a distinction between the word in its popular and its legal sense, declared to be erroneous.
    
      Demurrer to complaint.
    The action was for slander. The facts are stated in the opinion.
    
      C. A. Seward, for the demurrer.
    
      R. O. Gorman, opposed.
   Daly, F. J.

The complaint avers that a scandalous, criminal, and obscene libel, was published by some person unknown to’ the plaintiff, of and concerning Messrs. Olmstead and Vaux, who had submitted a plan for the improvement of the Central Paik, and the editor of the Evening Post, being an obscene caricature, a copy of which is annexed to the complaint, and that the defendant at a meeting'of, and in the hearing of the commissioners of the Central Park, referring to this caricature, said of the plaintiff: “ He is the author of it, I know it.” The first objection raised by the demurrer is, that this was not imputing to the plaintiff any offence involving moral turpitude, or which would subject him to an infamous punishment. That an indictment would lie for publishing this caricature does not admit of a doubt. (Austin a. Culpepper, Skinner R., 123; 2 Holt., 313; Anon., 11; Mod., 99; DuBort a. Beresford, 2 Camp., 511.) It was not only a libel upon the persons designed to be affected by it, but as an obscene caricature, it was an offence against public morality. (The King a. Curl, 2 Strange, 788; 1 Russell on Crimes, 233.) The defendant insists, however, that to say of a man that he published a libel, is not actionable per se. In Young a. Miller (3 Hill, 21), it was held, that to charge a man with a crime for which he might be indicted, and which would be disgraceful to him in a general sense, that is, which would detract from his character as a man of good morals, was actionable, and certainly to charge a man with publishing an obscene caricature, which was also a libel upon individuals, is to impute to him an offence which would have that effect. But the point has been expressly passed upon. It was held in Sir William Russell a. Lignor (1 Roll. Abr., 46; 1 D’Au. Abr., 98; Vin. Abr., 423, pl. 27), that to say of A. “ that he made a libel on B.,” A. being a justice of the peace, was actionable. It was objected in that case that it did not appear what the effect of the libel was, but the court were of opinion that it was enough to say of a justice of the peace, that he had made a libel, as it was imputing to him an offence for which he could be indicted at cqmmon law, and subjected to fine and imprisonment; and in Andrew a. Kappenheofer (3 Serg. & Rawl., 258), it was held that words charging another with making a libel were actionable.

It is further insisted that the offence did not consist in designing and drawing the caricature, but in publishing it, and that saying that the plaintiff was the author of it, was not charging him with having published it.

It is averred, however, in the complaint, that the caricature had been published before the speaking of the words, by the sending of copies of it to all the commissioners, and to say of a man after a libel has been published, that he is the author of it, is to convey the imputation that he is connected with the publication, or at least that he was an actor or principal in the criminal act. In the Queen a. Lovett (9 C. & P., 462), all that was proved against the defendant was, that the manuscript from which the libel was printed was in his handwriting. There was no other evidence to connect him with the printing or the posting of it, yet this was deemed sufficient to sustain the indictment, and upon this evidence alone he was convicted ; and Lord Tenterden, in Sir Francis Burdett’s case (4 B. & Ald., 95), went even farther: “ I have heard nothing,” he said, on the present occasion, to convince my mind that one who writes or composes a libel with intent to defame, may not under any circumstances be punished if the libel is not published.” In The King a. Paine (5 Mod., 163), the court said that the making of a libel was an offence, though it never were published, and similar views have been expressed in several cases. (The King a. Beare, 1 Ld. Ray, 414; S. C., 2 Salk., 417; S. C., Carthew, 407; S. C., Cases. Temp. Holt, 422; S. C., 12 Mod., 218; Lamb’s Case, 9 Coke, 59; The King a. Kisell, 1 Barnds, 305; The King a. Williams, 2 Camp., 646.) Where then a libel has been published, it is very clear from these authorities that it is actionable to say that a man is the author of it.

The next question is, whether the statement made by the defendant was a privileged communication. It was made at a meeting of the Board of Commissioners of which the defendant was a member, after a resolution had been offered by one of the commissioners that the architect-in-chief should be requested to employ the plaintiff as engineer of the Central Park. Any communication or statement, made in the discharge of a legal or moral duty which may be considered applicable or pertinent to the duty which the party is engaged in discharging, is privileged, however injurious it may be to individuals, unless it appears to have been done from a malicious and mischievous design to injure the character of the person to whom it refers. The commissioners of the Central Park were a public body, discharging to the extent of the power conferred upon them, the functions of government, and the defendant as a member of the body was a public officer. Whatever, therefore, he might say at the deliberations of the Board of Commissioners bearing upon, or having relation to, any matter within their cognizance, would be presumptively privileged. The matter before them was the propriety of adopting the resolution requesting the architect-in-chief to employ the plaintiff as engineer, and a statement that the plaintiff was the author of a production designed to caricature and hold up to ridicule the plan which the commissioners had adopted for the improvement of the Central Park, whether it were true or not, must be regarded as relevant and pertinent to the subject before them. It is not for a court of law to say that it was a matter which they ought not or could not take into consideration. The commissioners alone were to judge of the reasons which should influence them to vote for or against the resolution; and that they considered it material appears from the averment in the complaint, that in consequence of the statement the resolution was lost. Concluding then, from the occasion upon which the charge was made, and the relevancy of the subject-matter of it, that it was presumptively privileged, the next question raised by the demurrer is, whether there is a sufficient averment that it was made from malice. It is maintained that the general averment in the complaint, that the words were spoken maliciously, is not enough ; that it is nothing more than an averment of that malice in law, which exists whenever the words are actionable, but that in a case like this, where it appears upon the face of the complaint that the occasion was a privileged one, the complaint must contain a specific averment of the facts and circumstances which show conclusively that the words were spoken from actual malice, or that a cause of action is not made out.

In passing upon the question of the sufficiency of the com-' plaint in this particular, it will be necessary first, to have mclear understanding of what is meant in actions of defamation by the term malice; for it must be confessed that there is at present considerable obscurity as to the sense in which it is to be understood in actions of this nature, growing out of a distinction taken by Bayley, J., in Brommage a. Prossor (4 B. & C., 247), between what he calls malice in law, and malice in fact. He says that the law recognizes two descriptions of malice in actions of slander; that malice in its common acceptation or popular sense means ill-will to a person, but in its legal sense, it means a wrongful act, done intentionally, without just cause or excuse. I apprehend that there is no ground for distinguishing between the legal and the popular sense of the word, and that it means in its legal sense exactly what it means in its popular sense, namely, a mischievous design or intent to do an injury to an individual, or to the public. Crabbe, in his work on English synonyms, after tracing the word to its Latin root, modus, bad, defines it to be the very essence of badness lying in the heart; the love of evil for evil’s sake, as where a man is impelled to do mischief to those who never injured him; and it is in this disposition to injure from what he calls an abandoned heart, that Blackstone understood it, in its legal sense. (4 Comm., 200.) Lord Holt distinguishes it from hatred or rancor, which may exist simply as a feeling, but the intention to injure being an ingredient in malice, he defines it to be “ a design formed of doing mischief to another.” (The Queen a. Mawgridge, Kely R., 127.) Chief-justice Russell in his work on crimes, refers to it “ as a term of law denoting directly wickedness, and excluding just cause or excuse” (1 Russell on Crimes, 483); and Best, J., in The King a. Harvey (2 B. & C., 257), which was an indictment for libel, defines it to be “ any wicked or mischievous intention of the mind.” In criminal prosecutions for libel, this malice or wicked and mischievous intention of the mind, is of the very essence of the offence. (Commonwealth a. Clapp, 4 Mass R., 163.) It is called malice in law, because it is an inference which the law draws from the criminal nature of the act, but which may be rebutted by showing that there was no malicious intent to do an injury either to the individual or to the public. (The King a. Lord Abingdon, 1 Esp., 228; 1 Russ, on Crimes, 250; Want’s Case, Sir Fr. Moore, 627.) In the criminal prosecution it is necessary, therefore, to aver in the indictment that the words were published maliciously (Anon., Styles R., 392), but in the civil action for damages this averment is not necessary. This was expressly adjudged upon error in Mercer a. Sparks (Owen, 51; and see Sir Fr. Moore, 459; Noy, 35), and though it is said in the report of that case that the averment was unnecessary, as the words were in themselves malicious, the reason given by the reporter is not the correct one, as it would apply equally to an indictment for libel, where such an averment is necessary. In the anonymous case cited from Styles, Rolle, Ch. J., pointed out the distinction between the civil action and the criminal prosecution, declaring that it was not necessary to aver in a declaration that the words were published, maliciously, though it was in an indictment or upon filing a criminal information. But although this has been settled to be the law for more than a hundred years, it has been the fashion with pleaders, both ancient and modern, as Starkie remarks, to deal so profusely with the evil motives of the defendant, that such an averment is rarely found wanting, and it is to this persistent and constant use of it that we owe the erroneous impression, that in all cases malice is, in some sense, the gist of the action. Thus in Smith a. Richardson (Willis, 24), four of the twelve judges were of opinion that malice was the gist of the action, because, as they expressed it, the words are always laid in the declaration to have been spoken falsely and maliciously; and Justice Bayley cites this opinion, without perceiving, or at least, without noticing, that the conclusion arrived at by the four judges was founded upon the mistaken impression that this averment in the declaration was a material one. In the adjustment of damages, malice may become an element. If nothing is shown in mitigation, the jury would be warranted in assuming that the publication was made with a malicious intent to injure, and evidence tending to show either the absence or the existence of malice is always received to diminish or to enlarge the damages. (Gilman a. Lowell, 8 Wend., 573; Root a. King, 4 Ib., 139.) But it is an error to suppose that malice, except where the words are privileged, is in any way essential to a cause of action. If the words are averred in the complaint to have been published maliciously, the defendant cannot take issue upon that averment (Fry a. Bennet, 5 Sandf., 62; Howard a. Sexton, 4 Comst., 160); nor, except where the communication is privileged, will the most conclusive evidence of the absence of a malicious intent furnish any answer to the action, as it goes only to the question of damages. The motive of the defendant is wholly immaterial, as respects the right of action. It may be a good or a bad one. The defendant may have heard the slander from another, believed it to be true, have had very satisfactory reásons for so believing, and felt that it was his right, as well as his duty, to represent what he honestly supposed to be the plaintiff’s true character; but all this goes only in mitigation of damages. Gil-man a. Lowell, su/pra, affords a good illustration. The plaintiff had sworn in a cause that he was the owner of land, the deed of which was recorded in the clerk’s office of a certain county. The defendant caused an official search to be made in the clerk’s office, and the deed not being found, in consequence of a mistake in the indexing of the records, the clerk informed him that there was no such deed upon record, and the defendant, upon receiving this intelligence, accused the plaintiff of having sworn falsely. The plaintiff brought his action, and all this went only in mitigation of damages. The real foundation of the action is the right of the plaintiff to recover a pecuniary satisfaction for an injury sustained, and it is wholly immaterial what may have been the motive of the person who caused the injury. The act must be intentionally done, the meaning of which is, that the/ defendant should know what he published for; as in the case/ put by Starkie, if a servant should deliver a sealed letter containing the defamatory matter without knowing its contents, he would not, though the actual instrument of publication, be liable to an action. (Lamb’s Case, 9 Coke, 59.) If the defendant knows what he publishes, the inference is, that he means that it shall have the effect of lessening the character of the plaintiff in the estimation of the community, for in the language of Lord Tenterden, in The King a. Harvey (2 B. & Cres., 257), “ he must be presumed to have intended to do that which the publication is calculated to bring about.” This is a presumption of law from the act of publication. It is the only presumption which it is necessary to draw, and to denominate this intent malice, or malice in law, when it may have arisen from a good motive, the defendant believing what he alleges to be true, is to employ the word malice in a sense neither justified by its etymology, its ordinary meaning, nor its previous legal signification. To do so gives rise to confusion in respect to the meaning of the word, and involves the necessity of distinguishing two kinds of malice, whereas there is, and can be, in such an action, but one kind; for whether the existence of malice is presumed in the adjustment of damages from the absence of any thing in mitigation, or it is proved as a fact to enhance damages, or to maintain the action where the communication is privileged, it is generically the same thing in either case.

Where the occasion upon which the words were published was a privileged one, the existence of malice shows that the party was not acting in the discharge of a duty, or in the exercise of a right which the law, upon grounds of public policy, would otherwise presume to have been the fact. The protection which the occasion affords is founded upon the just and rational principle, that one who is not a volunteer, but whose duty or right it becomes to discuss or speak of the charapter of another, is not to be restrained by the fear of an action for defamation, but may freely declare what he honestly and truly believes. The law presumes that he did so, and upon that presumption. exempts him from all liability, though what he said was urn founded in fact, and though its effect may have been highly detrimental; but the existence of malice removes this presumption, and places him upon the footing of a mischievous and malicious defamer.

Malice may be shown by the proof of extrinsic facts, or it may be inferable from the manner in which the publication was made, even though the subject-matter of the communication was relevant, and the occasion a privileged one. In Wright a. Woodgate (1 Tyr. & Gr., 12), the letter written by the defendant was privileged, and all that was stated was pertinent to the subject-matter of the communication, which was to dissuade the person to whom it was written from giving his consent that another solicitor might be appointed for the plaintiff in place of the defendant. Parke, B., said that the whole of the letter was a privileged communication; that the occasion of writing it rebutted the presumption of malice, and threw upon the plaintiff to show that there was malice, and that that might be made out by directing the attention of the jury to the lan guage of the letter itself or by proving by extrinsic evidence that the defendant entertained malicious feelings. So in the present case; though the occasion was one in which the defendant had a right fully to discuss the character of the plaintiff, and the fitness of requesting the architect to appoint him engineer, and though the charge made was relevant to the matter under discussion, still the way in which it was made, the broad statement by the defendant that he knew that the plaintiff was the author of the caricature, was going very far. It was an assumption of knowledge of the existence of what was asserted, precluding all doubt and forestalling all inquiry; and when it is taken in connection with what is averred in the complaint, that the plaintiff was not the author of the caricature, and was wholly guiltless of any complicity therein, I think it would be presumptively sufficient to entitle the jury to pass upon the question of malice. In Roger a. Clifton (3 B. & P., 587), and in Child a. Afflert (9 B. & C., 403), which were cases of privileged communications, positive proof by the plaintiff that what was stated in the communication was false, would seem to have been regarded by the court as sufficient to raise the question whether the communication was made bona fide or not.

But independent of this, I am not aware that any thing more has ever been required in such cases than to aver generally, as has been done in this complaint, that the defamatory matter was published ex malitia. This is averring the fact substantively, and it cannot be necessary to set forth all the circumstances upon which the plaintiff means to rely to prove it. The usual mode of averring it is, that “ contriving and maliciously intending to injure the character of the plaintiff, and to bring him into public scandal and disgrace, the defendant published,” &c., “ of and concerning the plaintiff,” &c. This is the form given by the elementary writers, where the communication is privileged. (2 Starkie on Slander, 385; Cooke on Defamation, 311; Chitty on Pleading, 630, 6th Am. ed.) This was the averment used in Rogers a. Clifton (3 Bos. & Pul., 587), and in Pattison a. Jones (8 B. & C., 578). In analogous actions, where the proof of malice is essential to maintain the action, this general form of averring it has been considered sufficient. (Barnadistone a. Some, 2 Lev., 114; Mileward a. Seargeant, referred to in note B to Hermans a. Tappenden, 1 East, 555.) And in my own experience, a somewhat extensive one—for I have tried a great 'number of actions of this description, many of them contested by very able and experienced counsel—I do not remember a case where the pleader thought it necessary to set forth the facts and circumstances upon which he meant to rely to establish malice, or where any thing more was contained in the declaration than a general averment that the act was done maliciously.

The remaining point raised by the demurrer is, that the complaint should show, in respect to the publication, that there was a want of probable cause for making it. The want of probable cause, as essential to a right of action, arises only in cases for malicious prosecutions, or those-actions for defamation which are analogous to them—a class of actions greatly discouraged (Saville a. Roberts, 1 Ld. Ray, 374; 12 Mod., 208; 1 Salk., 13), as it is to the public interest that all persons should be free to make complaints before the proper tribunals, of all matters affecting their own or the public interest, without being liable in damages if the charges made by them should turn out to be unfounded. The exemption extends to the complainant, and to all persons—-judges, jurors, witnesses, attorneys, or public officers—who take part in the proceeding, and no action will lie for any injury to person, reputation, or property, growing out of it, unless it is shown that the party who originated and set it on foot had no reasonable or probable cause for so doing. Probable cause, in such a case, is a belief, founded upon a reasonable ground of suspicion of the truth of the charge made, and it is incumbent upon the party who brings such an action to aver and prove that there was a want of probable cause.- It is generally a legitimate inference from the want of probable cause, that the party prosecuting was influenced by malice ; but not absolutely so in all cases, as he may honestly believe in the truth of the charge he makes, but act upon insufficient grounds of suspicion, as in Merman a. Mitchell (13 Maine, 439), the rule being, that the circumstance which warrants a reasonable ground of suspicion must be such as would induce a cautious man to believe in the truth of the charge (Mumns a. Nemours, 3 Wash. C. C., 37); while, again, proof of the most express malice will not support such an action, if there were probable cause, of which Foshay a. Ferguson (2 Den., 617) is a striking example. The want of probable cause, therefore, may exist with or without malice, and as it is the foundation of the áction, this ingredient essentially distinguishes it from an action brought for defamatory matter, maliciously published, upon a privileged occasion.

I am disposed to think that the present action, though in form a,n action for slander, is sufficiently analogous to demand the application of the rule that prevails in actions for malicious prosecution, and that proof of the want of probable cause is essential to sustain it. Howard a. Thompson (21 Wend., 319) was an action for libel, in sending a written communication to the Secretary of the Treasury, accusing the plaintiff, who was a subordinate officer of the Secretary’s department, of various acts of peculation and fraud upon the government, and requesting his removal; and, after mature consideration, it was held, that though in form an action for libel, it was essentially in principle like an action for a malicious prosecution, and that proof of the want of probable cause was necessary. If a person had sent a remonstrance to the Board of Commissioners against the employment of the plaintiff, containing the same charge which the defendant made before the Board, the remonstrant would have occupied a position similar to that of the defendant in Howard a. Thompson, and certainly the defendant in this case, for what was said by him at the deliberations of the Board, where he was acting in the capacity of a public officer, comes as fully within the reason of the rule.

The complaint here does not aver, in so many words, that there was a want of probable cause, but I think it sufficiently shows it. As before stated, it alleges that the plaintiff was not the author of the caricature, and had no complicity therein. This, I think, is all that the plaintiff should be required to prove in such a case, to make out prima facie the want of probable cause. In ordinary cases of prosecution, complaints, or petitions, whether made to judicial tribunals or to public officers, the party who institutes the proceeding necessarily lays before the body or officer the facts or circumstances upon which he rests his charge, to satisfy or convince the authority he addresses that a case exists demanding its interference or action. The accused is thus advised of what is relied upon to maintain the accusation against him, and may give such explanation of the circumstances, or submit such proof in connection with them, as will show that the defendant acted without reasonable ground of suspicion-. But in this case, the defendant, before a public body of which he was a member, made a positive charge of a very grave nature against the plaintiff, without affording the slightest clue as to the facts or circumstances upon which he relied for the truth of his assertion. He stated that he knew that the plaintiff was the author of the caricature, without stating how or upon what his knowledge was founded; and all, I apprehend, that the accused party can do in such, a case, is to go upon the stand and swear that he was not the author, and knew nothing about the making or publication of the caricature; and if, after such proof is submitted, the defendant can furnish no explanation of the grounds, facts, or reasons which induced him to make so positive a charge, the plain inference must be that he has none to offer, and that it was made without any cause whatever. Such a state of facts would, in my judgment, be ample evidence of want of probable cause. Judgment must, therefore, be given for the plaintiff, upon the demurrer.  