
    John H. More vs. James Gordon Bennett.
    Where the words used in an alleged libel ed necessitate expose the plaintiff to public ridicule or- reproach, no explanation or application of the language ' employed is required; but when they are at all' susceptible of an innocent construction, a complaint alleging that the publication tends to blacken and injure the reputation of the plaintiff and expose him to public hatred, contempt and ridicule, cannot be sustained, without an innuendo explanatory of,, the ambiguous words.
    A charge that a prostitute is tinder the patronage or protection of the plaintiff does not necessarily impute moral guilt; and where in a complaint upon such a charge, there was no allegation that the writer of the alleged libel intended to impute such guilt to the plaintiff; it was held that the complaint was fatally defective in not containing an innuendo. Sutherland, J. dissented.
    Where the words are so ambiguous that they may be understood in an innocent sense, the mere allegation of malicious intention is not sufficient. Per Leonard, J.
    The practice of granting new trials at special term by a different judge from the one who heard the cause at the circuit, for legal error on the trial, condemned. Per Leonard, J.
    APPEAL from an order made at a special term dismissing the plaintiff’s complaint. The action was for ah alleged libel published in the New York Herald, of which the defendant is the proprietor. It is contained in a letter from the widow of a Colonel Kimball, which was Tm^sfcftdin that newspaper. The writer, after referrmg^^e^^g^^tiers relating to her deceased husband, saysi '^Atnong the papers referred to, as returned to me, are A ^i-'||S^)|mers scattered indiscriminately among the eéiéfs, and'returnee» to me after being in the hands of a pnbst^ii^ hands, too, are other household relics thfft^are sacrecy^ertEYvife. I find that I cannot obtain them except througl^iong litigation by the public , administrator. The police have called upon this woman, and she refuses to give up any thing belonging to my husband. She is, I understand, under the patronage or protection of a Mr. More, agent of the Central Railroad, who has also employed the orderly of my late husband.”
    
    The complaint alleged that the publication referred to the plaintiff, and that he was thereby charged with having under his patronage or protection a public prostitute ; that it was false, malicious, and tended to injure his reputation, and ex'pose him to public hatred and contempt. The complaint was dismissed, at the trial, after the evidence for the plaintiff was concluded, upori the ground that it did not state facts sufficient to constitute a cause of action.
   Clerke, J.

Undoubtedly our law, like the Eoman law, recognizes a very marked distinction between spoken slander and slander communicated by pictures or signs or writing, or printing, or that published in books or newspapers. Hatter calculated to cast ridicule on a man, or to degrade him in the opinion of his acquaintances, or of the community, is libellous, if written or printed and published ; although, if only spoken, it may not be actionable. For instance : to accuse a man, orally, of being a liar, even in the presence of hundreds, .is not actionable, per se ; but to say of him in .an article published in a newspaper, that he is a liar, is actionable ; and no proof of special damage is necessary. (Brooks v. Bemiss, 8 John. 455.) A general oral charge of having sworn falsely, without reference to material evidence given by the plaintiff on the trial of a cause, is not actionable in itself; but it is actionable to print and publish the following words concerning a man : Our army swore terribly in Flanders, said Uncle Toby ; and if Toby were here now, he might say the same thing of some more modern swearers ; the man (meaning the plaintiff) is no slouch at swearing to an old story.” (Steele v. Southwich, 9 John. 214.)

But the printed matter must necessarily be calculated to cast ridicule on a man, or to degrade him in the opinion of his acquaintances, or of the community. Where the language is ambiguous, or where it affirms what is consistent with freedom from moral guilt, an allegation that the publication tends to blacken and injure the reputation of the plaintiff, and expose him to public hatred, contempt and ridicule, cannot, I think, be sustained without an innuendo.

The charge in the case before us, that a prostitute was under the patronage or protection of the plaintiff, does not necessarily impute moral guilt; and there is no allegation in the complaint that the, writer of the letter intended, in this communication, to impute such guilt to the plaintiff. However improbable, it is very possible, that the “protection” of which the writer speaks, may be such as the benevolent often grant to the most erring and debased. At the present day, there are benevolent and pious persons, not a few who, dismayed at the alarming increase of abandoned women, become their friends, protectors and patrons, with the hope of reclaiming and redeeming them from the horrors and pollution of their condition. It is not impossible that the patronage and protection, of which the writer of the letter in the Herald'speaks, may be the result of similar benevolence. I think that the complaint was fatally defective in not containing an innuendo, explanatory of these ambiguous words.

The rule is, where the words, ex necessitate, expose the plaintiff to public ridicule or reproach, no explanation or application of the language,- used in the alleged libel, is required; but when they are at all susceptible of an innocent construction, such explanation or application must be added, by what pleaders call an innuendo, or colloquium, and in some cases by both. Among many cases, to which I could refer, I mention Capel v. Jones, (4 Man. G. & Scott, 259 ; 56 Eng. C. L. 252.) See also Hunt v. Bennett, (19 N. Y. Rep. 173.)

■ The order of the special term should be reversed, with costs.

Leonard, J.

The Code authorizes the complaint to be dismissed at any time, if the pleader does not state facts sufficient to constitute a cause of action. It is not usual in such cases to allow an amendment, if the defect is technical, and will not operate as a surprise. It is in the discretion of the judge, at the trial, whether to refuse or allow the amendment, and no ground of exception arises for his refusal to allow such amendment. It is discretionary.

The question now comes up in the same manner as if it had arisen upon demurrer to the complaint. The objection taken is not waived by answering the complaint. {Code, § 148.)

The objectionable words in this case are actionable or otherwise, according to the manner in which it-was intended they should be understood. The mere allegation of malicious intention is not sufficient where the words are so ambiguous that they may be understood in an innocent sense. My "brother Olebke has well explained the double sense in which the words complained of may be accepted. We are not to take the worst or most injurious sense, when the words may properly and naturally receive a harmless, as well as an offensive, construction. (Button v. Hayward, 8 Mod. 24. Holt v. Scholefield, 6 Term R. 691.) What was it thé intent of the publication to charge the plaintiff with having committed of an injurious or offensive nature in the public estimation ? The pleading does not state. Are the courts to seek for it ? Surely not. It was the office of the pleading to characterize the intent, so that the defendant might take issue upon it. Had it been alleged by the complaint that the intent of the publication was to charge the. plaintiff with keeping a prostitute for illicit purposes, the defendant might, by a denial, have raised an issue properly to be tried by the jury. Some such interpretation must be put upon the words before they become libellous, and it is the office of the complaint to do so in a case where the words have an ambiguous sense. There are several strong authorities which illustrate this view. In Dolloway v. Turrill, (26 Wend. R. 383,) the publication charged the plaintiff with having officially certified that an affidavit was sworn to before him, by the person ■ signing it, when no oath was in fact administered. At the trial the court refused to submit to the jury the question of fact, in what sense the words were used, it being insisted by the defendant that they imported only a charge of inadvertence on the part of the plaintiff. The judge charged that the words contained a charge of official corruption, and that it was only necessary to consider whether the defendant was guilty of the publication. It was held in the late court of errors that the judge erred in these respects. The fact of the certification did not, by itself, prove corruption in office. The charge was open to a harmless construction.

In Capel and others v. Jones, (56 Eng. Com. L. 258,) a publication charging the plaintiff with purchasing two hundred railway shares under a false representation of the market, without any innuendo connecting the plaintiff with the false representation, was held not to be actionable. Numerous other illustrations were cited upon the points of counsel, but these are, I think, sufficient.

The allegation that the publication was malicious, is not sufficient. It is the meaning and intention that constitute the malice. These depend upon the sense in which the words were used ; and where they are ambiguous, the sense in which they become libellous must be stated. Where the libellous words are not ambiguous, they require no statement or explanation to show their application or meaning.

The judge, at special term, must have granted a new trial upon the ground that the judge at the circuit committed an error in his interpretation of the alleged libel. It could not have been for the refusal to permit an amendment, I think, as, that is discretionary.

The practice of granting new trials at special term by a different judge from the one who heard the cause at the circuit, for legal error at the circuit, is of very doubtful propriety, and has never been the practice in this district. Errors of law committed by one judge are more properly to be reviewed at the general term. It ought not to be assumed that one judge has any better knowledge of the law than another. If any other rule were to prevail, the judge having, in fact, the least knowledge, as well as the least delicacy, might, at special term, reverse a multitude of verdicts taken at the circuit before another judge more learned than himself. • In the present case, I think the judge at the circuit was right in his law; arid that is the only question under review.

[New York General Term,

January 7, 1867.

I concur with Judge Clerke, that the order of the special term should be reversed, with costs, and that the defendant be at liberty to enter judgment upon the direction of the judge at the circuit, dismissing the complaint, with costs.

Sutherland, J. dissented.

Order reversed.

Clerke, Zeonard, and SutJierland, Justices.]  