
    * John Walker versus Abel Winn.
    It is libellous and actionable to write of one, “ I did observe J. W. put in a vote for lieutenant governor very soon after the poll was opened, and when not more than ten or twelve votes had been put in; and a few minutes before the votes were all taken, I saw J. W. put in a second vote for lieutenant governor ” — even though J. W. was not present at the election, or though no such election was held.
    This was an action of the case for defamation, and for a libel. The declaration contained two counts. The first, after stating the plaintiff’s good name, &c., and the defendant’s knowledge thereof, states that the defendant, intending to hurt the plaintiff in his said good name, &zc., and to subject him to the pains and penalties provided by the laws of this commonwealth for regulating elections, did at a legal town-meeting of the inhabitants of Burlington, in this county, held on the first Monday of April, then last past, at said Burlington, for the election of governor, lieutenant governor, and senators of said commonwealth, in the presence and hearing of divers good citizens of the commonwealth, falsely and maliciously publish the following false, scandalous, and defamatory words of and concerning the plaintiff, viz. “ Major Walker,” (meaning the plaintiff,) “ you have put in two votes for lieutenant governor,” (meaning into the box or poll, which was then and there held and kept open by the selectmen of said Burlington,wherein to receive the votes for lieutenant governor of said commonwealth at said election ;) “ I ” (meaning himself, the said Winn) “ will swear to it; ” — by the speaking of which false, &c., words by the said Winn, the plaintiff has suffered great injury in his good name, &c., has been exposed too public prosecution, has suffered great distress in his mind, and has been put to great cost and trouble in vindicating and defending himself, and has been otherwise greatly injured.—The second count alleges that the defendant, thereafterwards, on the 20th of June current, with the maliciqus contrivance and design, and for the wicked purpose aforesaid, did compose, write, print, and publish, in the sight and hearing of divers good people of said commonwealth, a scandalous and infamous libel, of and concerning the plaintiff, wherein and whereby the said Winn, among other things, falsely and scandalously wrote, printed, affirmed, and declared, of and concerning the plaintiff, the following false, scandalous, * and defamatory words, that is to say, “ I” (meaning himself, the said Winn) “ did observe Major John Walker” (meaning the plaintiff) “put in a vote for lieutenant governor,” (intending into the box which was kept and held by the selectmen of said Burlington for the receipt of votes for lieutenant governor, as aforesaid, at the election aforesaid,) “very soon after the poll” (meaning the box) “ was opened, and when not more than ten or twelve votes had been put in,” (meaning into the said box ;) “ and a few minutes before the votes were all taken, I” (meaning himself, the said Winn) “ saw Major Walker” (meaning the plaintiff) “put in” (meaning into the said box) “ a second vote for lieutenant governor; ” thereby meaning and intending that the plaintiff had knowingly put and given in to the selectmen aforesaid, at the said election, more than one vote for lieutenant governor of said commonwealth; whereas in fact and in truth the plaintiff had not, and did not, at the election aforesaid, put into the said box, or otherwise give in to the selectmen of said town, more than one vote for lieutenant governor of said commonwealth, or for any other officer, of which the said Winn was then and there well knowing ;—by the writing, printing, publishing, and declaring of all which false, scandalous, and defamatory words by the said Winn as aforesaid, the plaintiff has greatly suffered in his good name, fame, and credit; has been exposed to a public prosecution; has been greatly distressed in his mind ; has been put to much cost and trouble to vindicate himself; and otherwise greatly injured. To the damage of, &c.
    The defendant pleaded, 1st. the general issue, which was joined.
    2d. In bar to the first count, that on the day when, &c., he, the said Winn, was, and long before had been, one of the selectmen of said Burlington, duly elected and qualified to serve in that office, and the said town-meeting being duly called and legally opened for the purposes in the said first count supposed, the qualified voters of. said Burlington, * being called upon to give in their votes, did then and there put their votes into the box or poll appropriated to votes for lieutenant governor : — And the said Winn, being so a selectman, and presiding at said meeting, and judgment of the proceedings therein, did, in conformity to law, and the statutes in such case made and provided, together with John Woods and Joseph M’Intire, the other selectmen of said Burlington, regulate said meeting, and in conformity to his duty did observe and attentively inspect the conduct of the various voters then and there assembled for the purposes aforesaid ; and the plaintiff, being a qualified voter of said Burlington, attended said meeting ; and the said Winn, being so as aforesaid attentive to, and observant, of the conduct of the several voters then and there assembled, did suppose and verily believe that the said John did then and there put into the said box two votes for lieutenant governor, contrary to law and the form of the statute in such case made and provided ; whereupon the said Winn, then and there, in the presence of all the citizens assembled at said meeting, did speak and publish, of and concerning the plaintiff, the said several words in the first count of said declaration mentioned, and thereby supposed to have been spoken and published by him, the said Winn, as he lawfully might, and was in duty bound to do; and this he is ready to verify. Wherefore, &c.
    To this plea the plaintiff demurred specially, assigning the following causes of demurrer, viz., 1. Because the said Winn, in his said plea, does not affirm that the plaintiff did put in two votes, but only that he, the said Winn, believed and supposed so, which is not traversable. 2. Because the said Winn, in his said plea, does not affirm that the speaking of the words in his said plea mentioned is the same speaking in said declaration mentioned. 3. Because said plea does not deny nor justify the speaking of said words 4. Because said plea is informal, &c.
    The defendant joins in the demurrer.
    *3. In bar to the second count, as to the writing, printing, &c., of the words therein mentioned, the said Winn says that before the writing, printing, affirming, and declaring the said several words of and concerning the plaintiff, he, the plaintiff, at said Burlington, on the 27th day of May, then last past, did, with a view and intention to hurt and ruin the character and reputation of the said Winn, and with the wicked and malicious intent of destroying the usefulness of him, the said Winn, as a selectman of said Burlington, and with intent to publish a false account of the aforesaid election, wickedly, falsely, and maliciously write, prim, affirm, and declare, of and, concerning the said Winn, the following false, scandalous, and malicious words, viz.: — ,
    
      “ To the public. — Whereas Abel Winn, one of the selectmen of Burlington, at said Burlington, on the first Monday of April last, publicly accused the subscriber of giving in two votes fa? lieutenant governor, and the subscriber then and there publicly and on his honor denied the charge ; but willin'g and anxious to have a public and legal investigation of the affair, the subscriber informed said Winn that he would allow him a reasonable time to bring the charge before the public in a legal form; which if he should neglect to do, the subscriber would take such measures, as the duty he owed himself, his family and friends might require, and the laws of his country would justify. Hitherto the subscriber has kept silence, as well from regard to his promise to said Winn, as from a conviction of the inadequacy of this mode of defence against a charge, which, if well founded, ought before this time to have brought him before the proper tribunal of his country, to answer for a violation of one of her dearest privileges. But more than six weeks having elapsed, during which time the Supreme Judicial Court having held its sitting in the county of Middlesex, in which county the subscriber lives, and the said Winn having neglected * to make complaint to the grand jury on the subject; — as the subscriber verily believes, justice to his own character, as well as a due regard to public opinion, compel him to adopt this method to clear himself from the base calumny. He does not hesitate to say he had a decided preference in the two candidates, and as every freeman ought to do, made use of fair and honorable means to secure the election of his favorite ; but he solemnly declares, that no consideration whatever could have induced him so far to deviate from the path of honor and rectitude, as to have been guilty of the mean artifice alleged against him by the said Winn, and that he conscientiously believes that the declaration, thus vilely and falsely made, originated from party views and personal prejudice. John Walker. — Burlington, May 23d, 1807.”
    Wherefore he, the said Winn, in justification of his own injured character, and in answer to the above false, scandalous, and malicious words, so written, &.c., did, at Burlington aforesaid, on the 20th day of June aforesaid, and with the intent to give a true and correct account of the proceedings at said election, write, print, and declare, of and concerning the plaintiff, among other things, the said several words in the said second count of the said declaration mentioned, and thereby above supposed to have been written, &c., by the said Winn, of and concerning the plaintiff, as it was lawful for him to do for the cause last aforesaid. And this he is ready to verify. Wherefore, &c.
    To this plea there was a general demurrer, which was joined.
    The general issue having been tried, and a verdict found for the defendant on the first count, and for the plaintiff on the second count, the cause came on to be argued on the demurrer to the second plea in bar, by Bigelow for the plaintiff, and JDana and Prescott for the defendant, at the last October term in this county, and again by the same counsel at the present term.
    * Bigelow
    
    argued that the paper published by the plaintiff, and recited in the second plea, was not libellous ; but whether libellous or not, it is no justification of the libel charged on the defendant. One libel cannot thus be setoff against another, and the defendant in his plea does not deny the falsity of his libel. 
    
    
      Dana
    
    did not express great confidence in the plea as a bar to the action, though some points of it were very pertinent as a defence. A selectman is, by the constitution, made the presiding officer at our state elections, and sits in some sort as a judge. He is bound to see that no elector puts into the box more than one ballot. When he believes that such a fact is about to take place, it is his duty to prevent it; and when he believes —and in this case it is agreed by the demurrer that the defendant did believe — that such a fact had taken place, surely it cannot be criminal in him to announce it to his fellow-citizens. For saying this of the plaintiff, he is charged with a malicious slander, and this charge, as is also confessed, is made “ with a view and intention to hurt and ruin his character and reputation, and with the wicked and malicious intent of destroying his usefulness as a selectman.” — The question then is, whether an officer, maliciously libelled for a fact that had occurred in the course of liis official duty, may not publish, in his vindication, what appeared .to him a true account of the facts. He could do nothing else in this case. If the plaintiff did not believe the defendant’s allegation as to his intent in publishing the words complained of, he might have put that intent in issue to the jury. The proceedings at elections have a strong similarity to proceedings in a court of justice ; and it is not libellous to publish a true account of these latter. 
    
    But the principal reliance of the defendant’s counsel seemed to be on the insufficiency of the second count in the declaration. Of themselves, it was observed, the words charged do not necessarily import a crime. It * would be no crime for an elector to put in a second ballot by mistake, or through mere forgetfulness.  The statute making the act criminal, requires that it be done “ knowingly and designedly.”  Again, the first voting may have been discovered to be irregular, and the box may have been emptied, and the electors called on to put in their votes a second time. There is no averment in this second count that there was a meeting for the choice of lieutenant governor, nor that the words were spoken with relation to such a meeting; and an innuendo has no power to add to, to enlarge, or change the sense of the words used. 
    
    
      Prescott
    
    contended that in a declaration for a libel there must be enough to show that the words are libellous. If the words of themselves do not import a libel, averments of extrinsic matter are necessary to be introduced. The words charged in this second count are not of themselves necessarily libellous, for they will admit of an innocent interpretation, and there are no sufficient averments of extrinsic matter to make them criminal. Neither can this count be aided by reference to the first. This is never permitted in declarations for slander, though it is sometimes allowed in actions upon contract. Besides, the first count having been disproved in toto by the verdict, no aid can now be derived from it to the second.
    
      Bigelow, in reply.
    The doctrine that slanderous words must necessarily import a crime, has been long exploded, nor was it ever extended to libels.  Any words throwing contumely on the party are actionable if reduced to writing. 
    
    As to the point made, that reference cannot be made from the second to the first count, since that has been disproved, the case of Tindall vs. Moore, 
       is a sufficient answer, where one set of words were found to be not actionable, yet relation was had to them in the innuendo to another set of words, and the court supported the reference, and gave judgment for the plaintiff.
    
      
      
        Sir John Davies’ Rep. 172. — 1 Lev. 65, Orton vs. Fuller.
      
    
    
      
       1 Johns. Rep. 286, Hotchkiss vs. Lothrop. —1 Esp. Rep. 456, Curry vs. Walter
      
    
    
      
      
        Cowp. 672, Rex vs. Horne.
    
    
      
      
        Stat. 1800, c. 74, § 3.
    
    
      
       1 Saund. 242, Craft vs. Boite, note 4.—2 Chitty on Pleading, 256,259.— Cro Car 271, Manning vs. Fitzherbert.—2 Lev. 62. — 6 D. & E. 691. — 8 East, 431.
    
    
      
       2 Wils. 403, Villars vs. Monsley. — 5 East, 461. — 3 Salk. 225.
    
    
      
       1 Bos. & Pul. 331, Bell vs. Stone.
    
    
      
       2 Wils. 114.
    
   * By the Court.

Though the plea in bar may be bad in itself, as it seems to be agreed, it will yet be a sufficient answer to a bad declaration.

The question then remaining is on the insufficiency of the second count. The objection to it is, that the words charged do not of themselves amount to a libel, without recurring to the first count for circumstances necessary to prove their libellous nature. Whether such recurrence is admissible in this species of action or not, we do not think it necessary here to decide, because we are of opinion that the words in the second count of themselves sufficiently import scandal. The constitution and laws of the commonwealth, as they relate to our elections, are well known to the citizens. Few of them are ignorant that the law has inflicted a penalty on him who puts in two votes for the same officer. Fewer still, it is hoped, there are, who are not sensible that such an act is highly dishonorable to a citizen of a free republic, in which every one is entitled to equal rights; it is a base infringement of the rights of others, and the lenity of the law, in imposing so light a penalty on the commission of it, is very striking.

The words themselves, without the aid of the innuendoes, are plain and intelligible to the most ordinary minds. They could not be misunderstood by a citizen of Massachusetts. To give them an effect highly injurious to the plaintiff, it is even immaterial whether he was in fact present at the meeting, or whether such a meeting was held. The scandal takes effect on the public mind from their own import and force only. If the laws of our country did not animadvert on such an injury, they would be a disgrace to that country. But our laws deserve no such reproach. The plea in bar to the second count is bad and insufficient; and judgment must be entered on the verdict.  