
    Sumner against Buel.
    Aa action does not lie by an officer of a regiment of militiae fora publication reflecting upon the officers of the regiment generally# without averring a special damage.
    THIS was ■an action for a libel published in a newspaper, called the Albany Argus, on the 39th óf August, 1814. The. defendant suffered judgment by default, and the plaintiff’s damages were assessed at six cents. The defendant now moved in arrest of judgment,
    The declaration stated that the plaintiff was an ensign commanding a company of riflemen, called the Albany Greens, in the regiment of riflemen commanded by Colonel Lockwood. The libel set out in the declaration was in the following words1': “ In 1813, some companies of a regiment of riflemen were called, upon to perform a few weeks’ service. Major Kaon, and about half a company, turned out, and acquitted themselves reputably. They were the whole nett proceeds of the regiment. Most of the regiment commanded by Colonel Samuel M. Lockwood, and particularly the Trojan, Albany, and Hudson Greens, with the honourable exception of a single man, a humble tailor,' Mr. Larkin, of Troy, refused to rendezvous. The officers of these companies discovered great anxiety to prevent their men front going, and displayed much art and duplicity to accomplish that object, assuring the men that the governor had no power to call the militia into service ; that he had ordered out 5,000 men,, when the president had required but 1,500 ; that there was no l;aw to punish delinquencies: and that, if there were, the government dare not execute it; and, that they, the officers, would undertake to pay all the.men’s fines. In these representations they were backed by old tories and worthless pettifoggers, with such matchless effrontery# that the men finally' yielded to the solicitations of their officers, and concluded to set the laws at defiance. * Now mark the issue, The court martial was regularly instituted, convened, and the delinquent officers and soldiers brought before it, to show cause why they should not be punished. It appeared before the court, that the only corps called out was Hopkins's brigade, which consisted of a less number of men than the 1,500 required by the.president, .and that all the other representations which the officers had made to -their men were equally false. Upon this the officers, very .cunningly,, and,' I think, very basely, got their own necks ¡óti£ of the Halter, by alleging that they were all'.anxious to. go, and appeared at the place of rendezvous for, the purpose, hilt, to their great mortification;, their men deserted them in an unexpected and cowardly manner. By these, and other hypocritical devices,, the officers, to a man, escaped punishment altogether, btit suffered their men to he severely fined. The collection of these fines by the.marshal., of Whichnoti'ce is given in the, public papers, will probably consign many of.,these deluded .men to a prison. They now begin to be'sensible-of the; trick which has. been, played upon them,' and aré, denouncing their officers.’11 Théy§ was fio •spe.ciá'l-dátoa-ger-afleged'.'iiíthé dedeü^idiif • : •
    
      Tillotson; in support of the motion,
    .contended that,; Onprinciv pie," this.action. could nbt be maintained, there being no personal .allusion.¡to the plairitiffi,. nor ,a'ny=>thing by-.-wldch the identity of any "individual libelled; could be ascertained. ■ A writing, to be-a libel, must contain injurious reflections pn some particular person or individual;; general reflections,;on any bias's . pr .order of men in society, do not constitute a libel, .of give any fight of. tion, "or matter for an indictment. It is true, that. where a col- .... , . . . ' ' - " •1 ' ' ‘ *°9mu"m if stated» and, by proper averments,, "the1 plaintiff" is aS(;ertained to be the person intended to be libelled, as in the. óf Van Vechten v. Hopkins, an action might be,maintained, -But there afe no cases which go the.'length of supporting the present action; and it would be a violation of all principle,, to permit every individuhl óf a particular class of men, to bring bis.action; for a general reflection-on,that-class, without , there being- any personality in. the writing, or damage sustained in consequence pf,it,'by any one. .
    
      Van Vechten, contra,
    insisted,, -that, though it was necessary to support 'this action, that some particular person should be intended as- the: object-of the libel,-.yet; lie need, not/bepamed;' but, it was. sufficient if he was-described,,of alluded-.to,' in the writing. The present is not a, libel on. the army,, or militia, generally; but on the officers - of three, particular companies of a particular Vegiment.i , There is ! then a designation of- the. persons intended. Though a libel on the members of the bar, •generally,. would hot furnish a ground of action for each in.di.7 vidual of the- profession, yet a writing .pontaining inj.uripus.,ré.7. - flections on three or more lawyers, concerned in a particular n, J ■. r cause, would be a libel. '
    In Gidney v. Blake,
      
       where the defendant said,. “ Your children are thieves,, and I can prove itthe court held, that the words applied to all the children of G., and the colloquium being of, and concerning, the plaintiff, one of the children, 'the action was maintainable.
    
    
      Van Buren, in reply,
    said, that cases of indictments for libels,, stood on distinct principles from civil suits for the private injury, and furnished no rule for the decision of this case; and that no case of a civil suit could be found, Brought by the individuals of á class, or order of men, for a publication reflecting on that class, or number of men, generally.
    
      
       1 Ld. Raym. 486. 3 Salk. 224. 3 Barnadist. 138 Cro. James, 107. 6 Bac. Ab. 232. 2 Hawk. P. C. b. 1 ch. 73. s. 9. 3 Johns. Rep. 22.
      
    
    
      
      
        11 Johns. Rep. 54.
      
    
    
      
       Hob. 89. Cowp. 672. 689.
    
   Thompson, Ch. J.,

This is an action for á libel, published by the defendant, against the officers of Colonel Lockwoodh regiment, of whom the plaintiff is averred to be one. But the. publication has no particular or personal application to the plaintiff. The present is a motion in arrest of judgment, on the ground of the generality of the libel.

It is a general rule, that' no writing whatever is to be deemed a libel, unless it reflects upon some particular person. (Hawk. P. C. b. 1. ch. 73. s. 9.) A writing which inveighs against mankind in general, or against a particular order of men, is no libel, nor is it even indictable. It must descend to particulars and individuals, to make it a libel. (3 Salk. 224. 1 Ld. Raym. 486.) These are general rules; but their application to particular cases often presents difficulty. An action for a libel is for the purpose of recovering damages for an actual injury proved to have been sustained, or which the law presumes that the party libelled has suffered. It is a private remedy for an individual injury. If the libel is either vágue and uncertain, or has no personal application, it cannot fairly be presumed that any damages have been sustained. Although a jury, in assessing damages, may take into view other considerations of a more public nature, yet they are merely collateral to, and not the basis on which the- action is founded. Where the object is public example, and the punishment of the.party, the more fit and appropriate remedy is by "indictment. If the plaintiff, in this case, had averred, and proved any special damages' sustained by'hhn," I amnotprepar-ed to say that, he. would not have sustained áh action... But from the generality 0f the Hbél', the la w w-ilí riot presume damages; and-it. would,' therefore, be ,repugnant to-the object and. foundation.-of, the action, -and .against the policy of- the law, to sustain a private. suit.. This .may be considered- as somewhat analogous to the remedy for a‘public nriisa-nce: it is a wéll-settléd rule that no action will lie by an individual, for a public nuisance, unless he has sustained some'special . damage,; and. the reason assigned for it is,-that - it would create, such a multiplicity of suits that the .party might be ruined by the costs. The same reason applies to cases’,of libels of a general description, .having, ño par- . ticular. or personal application. The."offender,, in-such'cage, does not ,go without 'punishment.,: The law -has, provided: .a fit, and proper remedy, by indictment;, and the generality .and ex- . tent of-such libels make them more peculiarly'.public offences. But- to- give - a private' suit,’ -on -such -general libels, where tio;' private damages have been-sustained, would be opening'a door : that would lead'-to mischievous -consequences:; and,,.in, many eases, to the ruin and destruction of a party, by the payment of costs. - It is rio-, answer, to this, objection, to say,, tho t a patty. may refrain from'publishing libels,, and so not -expose himself, to-such consequences ;• the law, in many cases, interposes -to prevent the'multiplicity of .suits,, and the .unnecessary, accumulation of costs, although parties are, in default. It is very difficult to lay down any preciseythd satisfactory rulé on this subject; ex-/ treme cases may be, stated on both sides -of the-.question, on, which no difference -of-opinion would- be .entertained, and which would yet seem to. fall within', the same general -rule..; Had this' .publication, applied to the -officers-of the army of the United States',: orto the, officers.of the -militia of the state of N’eze-Yorjc,, ■■ ■or- to the officers of the militia of any particular county,, it would, certainly not be pretended, that each-individual,.’falling within the general description, could maintain an action ; and yet the libel, by proper averments,., might be individually applied-,, -as well-in. those cases, as' in the one-before us. So, a libellous publication .generally,.against the. Bar of "the'state "of Nem-York, or of the city of Neio-Yórk, or of any particular county, would' hot give a ¡private action to each, individual of. the-profession, within the Respective.districts -of country, . although a proper-averment' iriight apply it to each individual..' .

Numerous other cases,- of a similar nature, might be put. It "is not, therefore, the want of certainty as to whom- the libel znight be applied, by necessary averments, which'..prevents" the maintenance of private suits.; nor is it because the libel applies to an order of "men ; for, in some of the cases put, the application would be only to a portion of such order. But if this he the principle upon which private suits, in' such cases, are denied, the' case before us falls'within it-; for the officers alluded to are a portion of the order or class of militia officers. There must, I think, be some other reasons which govern cas.es of this kind. The books are silent on the subject; and I know of none more sound and just than those I- have already alluded to, that, where the libel has no particular and personal application, and is so general, that -no individual damages can be presumed, and ,the class or individuals so numerous to whom it would apply, that great vexation and oppression might grow out of a multiplicity of suits, no private suit shall1 be sustained, but proceedings against the offender must be by indictment. The. case of Foxcraft, v. Lacy, (Hob. 89.,) ¡has been relied upon- in support of this action. It does not appear to me that the principle of that case applies. The colloquium there, shows the particular and personal application of the slander to the plaintiff, as well as the other persons; and the same remark will apply to the case of Gidney v. Blake, decided in this court, (11 Johns. Rep. 54.) But the correctness of the report of Foxcraft v. Lacy, may be questioned. In Symm's case, (Godb. 391.,) it is said, that it was adjudged that the action would not lie. (See, also, 1 Viner, 510. note.) Upon the whole, after the best consideration I have been able to give-the, subject, 1 think it would be unfit, and against" the soundest principles and policy of the law, to sustain private suits upon such general libels, where there- is no particular personal application, and no special damages' alleged. The opinion of the court, therefore, is) .that the motion in arrest of judgment be granted, " - - .

. Spencer, J,, and Yates, J., were of the. same opinion. .

Van Ness, J.

This is a motion on arrest of judgmént, in which we are to assume, that all the material averments and-allegations in the declaration are true ^ and the only qucs-i tian is, whether the plaintiff , is designated, with sufficient certainty in the libel, to enable . him to maintain his action? On this point it seems to- be agreed, that it is- not material whether the person,,, of‘whom words .are spoken or- written, be described nominally, or indirectly, provided his identity be ascertained; and.lamentable, indeed, would be the state of society, if the law; Were not so; for then the character of any member of the community might be wounded and traduced, with- impunity and, triumph, by those whose hearts arq as corrupted and malignant-es their tongues or their.pens are slanderous and' unbridled.

To my comprehension, the plaintiff, in this'ease, is as clearly one of the'persons, intended to- be libelled, as if his name had been mentioned.. It really seems to me, that no person- who; ban" read and. speak English, upon casting.his eye oye-r ,this> declaration,...could hesitate an instant in applying-, the-libel to the plaintiff; and if this be so, I had supposed it necessarily followed that this motion ought not to -prevail, To show that, i have not expressed myself too strongly, let me appeal to the facts contained in this record. The declaration states, .among, other things, that- at .the time of publishing the libel, the plaintiff was an ensign-, belonging to, and commanding, as such ensign, a, company of riflemen, .commonly called the Albany. Greens,, in, a,* regiment of riflemen, commanded by Colonel Samuel Lockwood; that the defendant, “ well knowing-.all and singular the-pre-, mises,” maliciously published the libel in, question,, of:and,.concerning the plaintiff, as such officer as aforesaid. The libel,among other things, states, that some, companies of a regiment of riflemen, commanded by Colonel Lochw.dod, were called upon to perform a few weeks’ service. Major Koon, and about half a company, turned put, and, acquitted., themselves respectably, &c. Most of the regiment, and particularly the,Trojan, Albany., and Hudson Greens, with the honourable exception of asjngle man,,';a.;hunible tayloj-,. horn Troy, Mr. 'Larkin, refused; to rendezvous, &c. The officers of those: companies discovered great anxiety to prevent the men from going, ; assuring the men, that they, the afjkers, would undertake to pay all the-men’s fines, for sixpence. The officers, commanding the. companies before specified, are alluded'to in. various other parts of the )ibel. The plaintiff avers,, that he was. an ensign in-a company of riflemen, called, the Albany Greens, in Colonql i,oek- * wood’s regiment of riflemen. The libel, states, that this goiepA*' jay, among others, was ordered into actual service, and that the officers of this company, (of whom the plaintiff was one,) and of the other two companies, exerted their influence to produce .a disobedience of the order. If this does not designate the plaintiff as one of the persons libelled, in such a manner as that “ he who runs may read,” I have been very unfortunate in understanding the terms in which the declaration is expressed. The doctrine contended for on the argument,, and which I do not mean to controvert, namely, that when defamatory words are spoken of an order of men, no individual belonging to that order. can maintain an action, has.no application to this case. Were this libel directed against the officers of the militia, generally, then the plaintiff could not have been discriminated from the whole "order, as a peculiar subject of attack; and, of course, the. suit could not be maintained. The libel in question is not against the officers of the militia at large, as an order of men, but the individuals intended to be injured are selected from that very order, being particularly designated and described as belonging to a certain regiment, and as commanding certain companies, composing a certain part of that regiment. By law, there are but three officers attached to a single company of riflemen, a1 captain, lieutenant, and ensignand, in the case under 'consideration, those three officers, of three respective companies,- are charged with treacherous disobedience of the express commands of the commander-in chief, and audaciously endeavouring, by the combined influence of their official authority and personal example, to persuade the men under their command to violate their allegiance to their country and its laws. Now, to say that he who writes or speaks thus concerning nine persons, described and designated with such certainty and precision as to preclude the possibility of .mistake, speaks or writes concerning an order of men, (1 must be pardoned for saying,) is absurd.

Suppose a man- should pdblish a libel upon the Bar óf the state of New-Yofk, generally; now, as this would be a-libel upon an order: of men, no particular individual member of the order could maintain an action. But suppose" the libel should designate the counsel who argued a particular cause; or, (to present a case more precisely resembling that under consideration,) suppose it should designate the counsel who argued three separate «causes, which causes are specified in'"the libel, by giving the respective names of the plaintiff and defendant in each > 1 ' 1 - - -, , - particular cause ; would the Jibeller, in. this instance,' defame" an order of men,. or determinable individuals of that order ? Can' it admit of a doubt, that each of the counsel who had been engaged in such argument could maintain, an action Again; suppose a libel, upon .the whole body of the clergy of this, state; here it would be upon an- order of - men,, and,-■.therefore,, 'ab action coiild not be sustained by any single clergyman .against .the author, of such libel. But. suppose,, again," that.'the .libellous" publication should implicate nine ministers, of the gospel, whb performed divine service in three churches in one of our cities, ■and should- so describe "these; three.-ehúrchés, ás to render, their "identity notorious and indubitable.; would any ,man seriously ..maintain -that,, because the peculiar baptismal names :pf, thése nine persons were not expressed, - they should therefore he remediless ? - Shall this, too,- be considered as-a'libel upon an order of men ? Í cannot assent, to the idna that the ntimber of persons who. .may be libelled,- affords the rule to, determine whether or not an action will lie, Such a- rule would be unjust and arbitrary. The libeller -who calumniates a- number qf .péf-, ...sons,, by name, .is liable to an action by each;': and,, in ■suc;h..á base, he would hardly be allowed, to say,./even, ip extenuation of his offence, much less in bar to the action, that, because he had -exposed hitiiself ■ to s,o many actions, he" ought not, ' therefore, to be 'punished at all. If such a rule should be adopted, the-calumniator, who assails and reviles-a .great. number of individuáls 'in "the same málioioús'publication, will escape ; wfiilb' the less guilty and less hardy slanderer,' who has traduced the character of a single, man only, shall be punished. Rather than 'adopt such a rule, I Would consent'to,' strike the whole law concerning libel from- atir municipal code.

On this point, there is an adjudged casé, that of Foxcraft v. Lacy, (Hob. 89.,); which is decisive■; and Upon the authority of which, this court decided the ease ©f Gidney v. Blake, (11 Johns. Rep. 54.) That case, sanctioned and adopted as it is by this court,-in my judgment, settles all the points now before us-. ■■■’

ft was asked,, in iílfe progresé of-the argument of the case, if a libel should charge “every.officer of the "army, without exception, from the highest toi ihe lowest,”' with" cowardice, _ whether every ..Officer could maintain ati action 1 I answer, in the first place, that such a libel muh be 'considered as upon- that whole .order -of men) and, therefore, no action would lie. But suppose this'answer not to be satisfactory, what does it prove ? Certainly, not thát the plaintiff in this cause shall have no redress, because eight other men have suffered equally with himself. The -soundest and most salutary principles in the world may be carried to an unwarrantable extent. The case last put is an- extreme one; and not likely to occur. I will state another case. Suppose a libel should be published upon all the officers of the army, by name ; could each maintain an action ? ' I confess I am not prepared to give an answer; nor' would an answer in the negative touch'the point now under consideration. The solidity of a principle is not to be tested by extreme cases, which are usually not embraced within the reason or policy upon which the principle- is founded. The application of it, in such instances, must be regulated and restrained by sound judicial discretion, in such a manner as to preserve the principle, and, at the same time, te prevent it from being perverted.

.My opinion, in this case, accordingly,, is :

1 st. That this is not a libel upon any order of men ;

“2d. That the plaintiff is designated with sufficient certainty (o enable him to maintain his action; - .

" 3d. That this right of action exists, notwithstanding the defendant may have exposed himself to other, actions, which may be commenced by the other officers described in the libel in question, and that the motion in arrest of judgment ought, there-. Tore, to be denied.

Platt, j., was of the same opinion.

Motion, granted,;  