
    Dole against Lyon.
    NEWYORK,
    Oct. 1813.
    The publisher of a libel is responsible to the party libelled, notwithstanding the libel is accompanied with the name of the author. Whether a person who repeats a slander, but who, at the same time, names the person from whom he received it, may plead that circumstance in justification , seems to depend on the intent, or que animo, with which the words, with the name of the author, are repeated.
    THIS was an action for a libel, for printing and publishing, in a newspaper called the Northern Budget, on the 15th November, 1808, a certain letter, signed Gilbert D. Young, addressed to the plaintiff. The libel was set forth in the declaration. The letter as published, was introduced with the following note to the printer: “ To the editor of the Northern Budget. The enclosed advertisement having been refused a place in the Troy Gazette, I send it to you for publication. G. D. Young.” The letter which followed was addressed to the plaintiff; and after various charges and observations, it concluded with the following words: “ I now, sir, publish you to the world as a man destitute of honour, destitute of courage, and destitute of every moral principle and feeling, which renders a man valuable in society. G. D. Young. Troy, 15th November, 1808.”
    To the plea of not guilty, the defendant subjoined a notice of special matter to be given in evidence at the trial, and as showing the criminal conduct of the plaintiff.
    On opening the cause, at the trial, the plaintiff’s counsel stated, that he claimed damages only on the ground of the defendant’s having charged him with being destitute of honour and tourage; but when the defendant, after the plaintiff had rested his cause, offered a witness to justify ¡lie libel; the plaintiff’s counsel said they should go for the whole libel, and the Chief Justice, before whom the cause was tried, allowed them to do so, though it was objected to on the part of the defendant. The plaintiff produced a paper purporting to be a number of the Northern Budget, printed the 15th November, 1808, and purporting to be printed by the defendant. A witness testified, that the defendant was the editor and publisher of the Northern Budget; that he had seen one of the papers containing the libel, and of the same date, as he believed, with the one produced; that he knew the paper and type, and had no doubt of the fact. The libel was then read to the jury. The defendant moved for a nonsuit: 1. Because that part of the publication on which the plaintiff’s counsel had claimed damages, was not libellous; 2. Because the author’s name being subjoined to the supposed libel, the action could not be maintained Pgainst the defendant, who had printed it with the author’s name. The defendant then produced a witness to prove the matter stated jn his notice subjoined to the plea. The defendant next offered to prove that the plaintiff, and Gilbert D. Young had, for several weeks subsequently to the alleged libel, carried on a correspondence through the same newspaper, and offered a letter, dated the 21st November, 1807, addressed to the defendant, by the plaintiff as editor, by way of reply to the letter of Young ; that the plaintiff had incorporated in his letter the supposed libel, and thereby given it publicity; and that the defendant did not consider the supposed libel as affecting his reputation, but only as a charge of a want of courage, which he thereby attempted to repel.
    The correspondence thus offered by the defendant, was rejected by the Chief Justice, either as matter of justification, or in mitigation of damages.
    The defendant also offered to prove, in mitigation of damages, that soon after the commencement of the present suit, the plaintiff had said, that the defendant had sued him before a justice for printing his part of the said correspondence, and had recovered judgment against him; and that he brought the present action, because the defendant had so sued him; but this evidence was rejected by the Chitf Justice. The defendant then offered to prove that the plaintiff was a common libeller, and had libelled several persons of good character, in several publications, which the defendant offered to read in support of the facts set forth in his notice of justification. This evidence was also rejected.
    The Chief Justice charged the jury that the only question for them to decide was the amount of damages which the plaintiff was entitled to recover; that the libel was of an aggravated nature, and the only act proved against the plaintiff was, that in one instance he had departed from a correct line of moral conduct. That whoever published a libel was responsible to the party injured; and that the defendant was responsible, in the present case, notwithstanding the author’s name was published with the libel. That the defendant had been put on his guard against printing the libel, by the note of the author prefixed, stating that another printer had refused to publish it; and that the jury might presume, from the circumstance, that the defendant had been backed by the author, or some other persons; that the charges in the libel were aggravated by those stated in the special notice, and not proved; that liow far the facts proved by the defendant justified or extenuated the charges against the plaintiff it was for the jury to decide. The jury found a verdict for the plaintiff, for one hundred and fifty dollars, damages.
    A motion was made, on the part of the defendant, to set aside the verdict, and for a new trial: 1. Because the plaintiff after abandoning his claim for a part of the libel, ought not to have been permitted to have recourse to that part, or to recover for it; 2. Because the defendant, having given the name of the author of the libel, was not liable to an action; 3. Because the evidence offered ought not to have been rejected; and, 4. Because the judge misdirected the jury.
    J. Russell and R. M. Livingston, for the defendant.
    
      Foot and Van Vechten, contra.
   Kent, Ch. J.

delivered the opinion of the court. 1. The material point raised in this case is, whether the publisher of a libel is responsible to the party libelled, notwithstanding the libel is accompanied with the name of the author.

In the case of Davis v. Lewis, (7 Term Rep. 17.) Lord Kenyon observed, that if a person say that such particular man (naming him) told him certain slander, and that man did in fact tell him so, it is a good defence to an action of slander. There was a similar didum of the judges, in the Earl of Northampton’s Case, (12 Co. 132.) but in neither of these cases was this the point in judgment; and it may well be questioned, whether even this rule as to slanderous words ought not to depend upon the quo animo with which the words with the name of the author are repeated. Words of slander with the name of the author may be repeated with a malicious intent, and with mischievous effect. The public may be ignorant of the worthlessness of the original author, and may be led to attach credit to his name and slander, when both are mentioned by a person of undoubted reputation. There is^ however, a distinction between oral and written or printed slander, which is noticed in all the books; and the latter is deemed much more pernicious, and will not so easily admit of justification. There is no precedent of such a justification in an action for a libel. In Maitland v. Goldney, (2 East, 426.) the court of K. B., with a studied caution, waived the application of the rule in Lord Northampton’s Case, to written slander, and the cause went off on another distinction. No point is more fully established than this, that all who are concerned in a libel, as the composer or procurer of it to be composed, and the publisher and the procurer ^ 1-0 published, are responsible in law. (Hawk. tit. Libel, s. 10.) In King v. Paine, (Mod. 163.) the court, in speaking of the persons who are makers or publishers of a libel, observe, that “ all persons who concur and show their assent or approbation to do an unlawful act are guilty; so that murdering a man’s reputation by a scandalous libel may be compared to murdering his person; for if several are assenting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide.”

The same principles which are here applied to public libels, are applicable to private calumny; and the doctrine which renders all equally liable to an action who are any ways concerned in the unlawful publication of a libel, was very explicitly recognised by this court in the cases of Lewis v. Few, (5 Johns. Rep. 1.) and of Andres v. Wells, (7 Johns. Rep. 260.) and it was well supported by the authorities to which the court in those cases referred. Individual character must be protected, or social happiness and domestic peace are destroyed. It is not sufficient that the printer, by naming the author, gives the party grieved an action against him. This reason of the rule is mentioned in Lord Northampton’s Case, end repeated by Lord Kenyon. But this remedy may afford no consolation and no relief to the injured party. The author may be some vagrant individual who may easily elude process ; and if found, he may be without property to remunerate in damages. It would be no check on a libellous printer, who can' spread the calumny with ease, and with rapiuity, throughout the community. The calumny of the author would fall harmless to the ground, without the aid of the printer. The injury is inflicted by the press, which, like other powerful engines, is mighty for mischief as well as for good. I am satisfied that the proposition contended for on the part of the defendant, is as destitute of foundation in law, as it is repugnant to principles of public policy.

2. The ground on which much of the evidence offered on the part of the defendant was rejected, is too plain to need illustration. It was immaterial or impertinent. It referred to matters happening after the publication of the libel, and which had no concern either with the fact of publication, or with the truth of the charges. To admit testimony so wholly disconnected with the matter in issue, would lead to idle and endless discussion. The view with which that evidence was offered is stated in the case, and it was in that view the evidence was overruled. It was not offered or wanted in any other view. The acts of immorality which the defendant offered to prove were not specified in the notice annexed to the plea, and to admit proof of them would have been taking the plaintiff by surprise.

3. The charge to the jury has been deemed erroneous, because it was observed “ that the jury might presume from the circumstances, that the defendant had been backed by the author, or some other person.” The circumstance from which this might have been inferred was the note to the defendant, with which the libel was introduced, and which stated that the libel had been refused a place in another gazette. This was awakening the attention of the defendant to the nature of the publication, and putting him upon his guard, and enabling him to arm himself against the consequences. He was, therefore, not an object of sympathy as an inadvertent, ignorant, or heedless publisher; in that view the remark was made, and the inference by the jury would have been natural and just. Here was no misdirection in point of law. It was bringing to the attention of the jury one among many other circumstances, to be considered in assessing the damages. There are numerous and many of them slight circumstances which go, in such cases, to vary, in a greater or less degree, the quantum of damages. They are not to be defined and brought to precise rule, because they grow out of each particular case. One of those circumstances was the fact in question, and it was probably mentioned with no great stress, and with only a passing attention. There is no reason to believe that it was a material fact in constituting the amount of the damages. The court perceive ample cause for the verdict in the atrocity of the libel, and the still greater atrocity of the charges spread out at large in the notice of the plea, and in the proof of which the defezidant utterly failed. The court are bound, on this subject, to judge how far the observation was material as well as erroneous. It was said by Mr. Justice Buller, (5 Term Rep. 425.) that though the judge may have made some little mistake in his directions to the jury, yet if justice be done, the court ought not to interfere. The court are always bound, in the exercise of a sound discretion on the subject of new trials, to determine how far the observation of the judge was material and effected the merits of the case. Otherwise, as this court observed in Fleming v. Gilbert, (3 Johns. Rep. 528.) there would be no end to new trials, and the remedy would be worse than the disease.

But, in fact, there was no imputable error in the observation to the jury. It was a circumstance fit and proper for the consideration of the jury, so far as an appeal to their compassion might have been made in favour of a harmless publisher. Suppose the defendant had inserted as a preamble to the libel that he had been indemnified against all the pecuniary consequences of that publication by a person of large fortune in that county. Would not that fact, when admitted in proof before them, be proper for the consideration of the jury in assessing the damages T There is no rule and no case which would exclude it. This was the same case, in a less strong degree, provided the evidence would warrant the inference. It is to be observed, that the fact in question was before the jury. It was in evidence as part of the publication, and no objection made to it as illegal. In Hotchkiss v. Lathrop, (1 Johns. Rep. 286.) the evidence that the defendant was indemnified for publishing the libel was objected to when offered; and on motion for a new trial the court rejected the motion in respect to that ground, by merely saying that the circumstances of the defendant were not known to be bad, and the relevancy of the testimony did not appear. But the court express no opinion on a different state of facts, even as to that point.

The motion on the part of the defendant for a new trial ought, therefore, to be denied.

N. B. There was another cause between the same parties, which, by an agreement between them, was to depend upon the decision of the court on the first point raised and stated in the preceding case; and the plaintiff, therefore, had judgment.

Judgment for the plaintiff.  