
    [Philadelphia, January 31, 1838.]
    FLITCRAFT against JENKS.
    IN ERROR.
    1. In an action on tlie case for a libel the declaration averred that the plaintiff was an applicant to the Court of Quarter Sessions for a tavern license, and that the defendant maliciously, &c, intending to injure him, &e. presented to the judges of the said Court a remonstrance, containing the false, scandalous, malicious words following, viz. speaking of the tavern for which the plaintiff was an applicant, “It, (the said tavern meaning,) is not designed for the accommodation of travellers, but merely calculated, (thereby meaning that the said plaintiff intended it,) as a place of resort for the idle and dissipated.” Held, that the plaintiff could not produce evidence on the trial of his good conduct and character.
    2. Where words which might otherwise be libellous are contained in a remonstrance which a citizen has a right to present to a public authority, malice must be proved by the plaintiff; and unless it be proved the action is not maintainable, although the allegations are shown to be false.
    This was a writ of error to the District Court for the City and County, to remove the record of an action on the case for a libel, brought by Jesse Flitcraft against Alfred H. Jenks, under the following circumstances:—
    The plaintiff was a tavern-keeper, and presented a petition to the Court of Quarter Sessions for the County of Philadelphia, for a license. The defendant presented a remonstrance to the Court against granting the license. In this paper it was alleged that the house for which the plaintiff prayed a license “ was not designed for the accommodation of travellers, but merely calculated as a place of resort for the idle and dissipated.” The Court refused to grant the license.
    The declaration, in setting out the alleged libel, after the words *“ merely calculated,” introduced the following innuendo, (“ thereby meaing that the said Jesse intended, it) as a place of resort for the idle and dissipated.”
    On the trial before Pettit, President, on the 30th of January, 1838, the signature of the defendant to the petition to the Quarter Sessions was admitted. The plaintiff’s counsel then called a witness, and offered to ask him “ whether the plaintiff was a good neighbour, a good citizen, a sober, honest, and temperate man, and whether he was a person likely to, or who would keep a house calculated as a place of resort for the idle and dissipated.” The counsel for the defendant objected, and the judge overruled this testimony, saying, “ There is nothing in the present case to justify a departure from the operation of the general rule of law, which gives the plaintiff the benefit of a good character till the contrary be proved. The plaintiff’s general character is not now impeached, and as it is unnecessary, he is not allowed to adduce evidence in support of it. He is already entitled to the advantage of every inference to be legitimately drawn from the possession of a good character. Notwithstanding its expanded form the question is but an inquiry into general reputation.”
    The plaintiff’s counsel excepted to this decision.
    No evidence was offered on the part of the defendant.
    The learned judge charged the jury in substance as follows.—
    “Where a publication is defamatory, the law infers malice, unless something can be drawn from the circumstances attending the publication to rebut that inference. But in an action for such a publication, as, notwithstanding its tendency to disparage the plaintiff, is prima facie excusable, on account of the occasion of writing it, there malice must in fact be proved. The right of remonstrance to the Court of Quarter Sessions in a case like this, cannot be questioned. The defendant is therefore protected to a certain extent, How far he is protected is another matter. The general rule is, that if it can be shown that the object of the party was malignant, and that the occasion was laid hold of as a mere colour and excuse for gratifying private malice with impunity, the action is maintainable. No matter how erroneous, their, the allegations of the defendant were, if his conduct was not malicious, no action will lie. If his motives were fair and honest, it is no matter whether what he said was strictly true or not.
    If upon these principles, a cause of action exists, then, before the jury can give special damages for the loss of the license, as laid in the plaintiff’s declaration, there must be some proof that but for the interference of the defendant, the plaintiff would have obtained it. *No evidence having been offered on this point, there could be a verdict for
    The jury found for the defendant, and the plaintiff removed the record writ of and the errors
    “ 1. That the judge refused to permit a witness called by the plaintiff to be asked ‘ whether the plaintiff was a good neighbour, a quiet citizen, a sober, honest, temperate man; and whether he was a person likely to, or who would keep a house calculated as a place of resort for the idle and dissipated; (offered to show want of probable cause, and thus raise an inference of malice).
    2. That the judge charged the jury that the libel alleged in the declaration was prima facie excusable, on account of the occasion of writing it, and that malice must in fact be proved.
    3. That the judge charged the jury that to enable the plaintiff to maintain his action, he must show that the defendant’s object was malicious, and that the occasion was laid hold of as a mere colour and excuse for gratifying private malice with impunity.
    4. That the judge charged the jury that no matter how erroneous the allegations of the defendant were, if his conduct were not malicious, no action would lie ; that if his motive were fair and honest it was no matter whether what he' said were strictly true or not.
    5. That the judge charged the jury as stated in the second, third, and fourth errors assigned, after rejecting, as stated in the first error assigned, the plaintiff’s offer of evidence from which the jury would have been enabled to infer malice.
    6. That the judge charged the jury that the plaintiff could not recover special damages.
    7. General errors.”
    Mr. Oliarles Ingersoll, for the plaintiff in error.
    The evidence of character was improperly excluded. The innuendo laid here was that the plaintiff designed that the house should be used as a place of resort for dissipated persons. No one can doubt that such was the idea held out by the defendant in his remonstrance, and the evidence offered was intended to rebut this suggestion, and by proving the good character of the plaintiff, to show want of probable cause, and malice. In Gray v. Pentland, (4 Serg. & Rawle, 420,) the defendant had made an affidavit respecting the official conduct of the plaintiff, which he had sent to the governor; and it was held that the want of probable cause in the defendant might be left to the jury as evidence of malice. In the case of King v. Waring, (5 Esp. Cas. 15,) it seems to have been considered that such * evidence was admissible. Van Vechten v. Hophins, (5 Johns.. Rep. 211,) show, that where the intent of the defendant is ambiguous, extrinsic evidence is admissible and proper, to explain it. So in Bornman v. Boyer, (3 Binn. 517,) it was held that where words will bear several meanings, the plaintiff has a right to aver, by an innuendo, the meaning with which he conceives they were spoken, and that it is for the jury to decide whether he is right. The acts of assembly contemplate the granting of licenses to other taverns than such as are calculated merely for the accommodations of travellers.
    The Court declined hearing Mr. F. W. Hubbell and Mr. Tarr, who were to support the judgment of the Court below.
   The opinion of the court was delivered by

Gibson, C. J.

That the words would not have been actionable without superadded proof of malice, seems justly to have been taken for granted; but if the charge from whose supposed falsity it was proposed to be made out, related to a defective adaptation of the plaintiff’s house to purposes "of public accommodation, it is plain that it would not be disproved by evidence of his conduct and character: and indeed it would seem to be the capacity of the building, and not a contemplated misuse of it, which was the subject of the defendant’s remark. His remonstrance bore that the house for which the plaintiff prayed a license, “ was not designed for the accommodation of travellers, but was merely calculated as a place of resort for the idle and dissipated.” Now, being predicable either of structure or purpose, the word “ designed” might convey an invidious meaning were it not coupled with the word “calculated,” which denoting arrangement according to numerical computation, indicates adaptation to an end, and, when applied to a house, is referable to the design of the builder rather than to that of the occupant. To say that an almanac is calculated for the latitude and meridian of a place is to indicate its properties and not the views of those who consúlt it. But, it is said, that the innuendo with which the'words are laid, drew the exposition of the meaning to the jury; and that the evidence should have been suffered to pass, in order to meet the event of an interpretation unfavourable to the defendant. The written words of a witness to an extrinsic fact, are doubtless proper for the jury, as was held in M'Gee v. The Northumberland Bank, (5 Watts, 82;) but where the point is the intrinsic effect of a paper, the construction is exclusively for the court. It was the business of the judge, then, to interpret the words; and according to the true interpretation of them, the evidence was properly rejected.

Ho directed that the implication of malice was by the occasion; and, to say nothing of the fact that according to the legitimate meaning there was nothing to rebut, the principle of Gray v. *Pentland, fully bears him out. lie further charged, that the falsity of the words might be material only as an indication of malice; and this also is a well established principle. That malice is the gist of the action, and that it is not inseparable from misrepresentation, is shown by the case of a master who is not responsible for the truth of his servant’s character given by him in good faith; though wilful falsehood would raise a presumption of malice which he could not resist. The exceptions all converge to these few points,- and none of them are sustained.

Judgment affirmed.

Cited by Counsel, 10 Casey, 115.  