
    THE KNICKERBOCKER LIFE INSURANCE CO. against ECCLESINE.
    
      New York Superior Court ; Special Term,
    
    
      Feb., 1869.
    Arrest.—Libel upon Corporation.—Malice.—Special Damages.
    
    The provisions of the Code of Procedure, authorizing arrests in civil actions, do not give the plaintiff a right to arrest the defendant, but it rests in the sound discretion of the judge to grant or refuse an order.
    The exercise of this discretion in granting the order, by the judge to whom application for an order of arrest is made, may be reviewed by another judge at special term, upon a motion to vacate the order.
    A defendant arrested, does not, by giving bail, preclude himself from questioning the sufficiency of the plaintiff’s complaint, or original affidavits made to sustain the order.
    Although a corporation, engaged in a business in which credit may be material to its success, may maintain an action for libel, without special damage, where the language used is defamatory in itself, and injuriously and directly affects its credit, and necessarily and directly occasions pecuniary injury, yet, in all other cases, averment and proof of malice and special damage is necessary in order to sustain an action by a corporation for libel.
    Whenever a corporation is entitled to maintain an action of libel, it may also procure an order for the arrest of the defendant; for the wrong is an injury to “ character,” within the meaning of the provisions of the Code.
    In such an action, when the words complained of are not libelous on their face, the plaintiff, in order to sustain an order of arrest, must show, by facts and circumstances, how they became libelous, and that the defendant, at the time of their publication, knew their libelous character.
    Averments in the complaint that the defendant, intending to destroy the reputation of the plaintiffs and injure their business, composed and published the matters complained of; and that by reason thereof the plaintiffs were injured in their reputation and business, and lost a large amount of premiums which they otherwise would have received, are not sufficient proof of malice and special damage to sustain an order of arrest.
    
      Motion to vacate order of arrest.
    This action was "brought; "by the Knickerbocker Life Insurance Company of New York, against Joseph B. Ecclesiue, for an alleged libel upon the coiporation plaintiffs. The plaintiffs obtained from one of the justices of the court an order for the arrest of the defendant; and alter he had given "bail, he applied to the justice of the court holding the special term to vacate the order or reduce the amount of bail. The facts relative to the cause of action, and the substance of the motion papers, appear in the opinion of the court.
    
      
      J. K. Porter, A. J. Yanderpoel, and H. W. Johnson, for the plaintiffs.
    
      Henry A. Cram, and D. McMahon, for the defendant.
    
      
       In the case of Reade against Sweetzer and others (Supreme Court, First District; At the February Circuit, 1869), the doctrine of libel in its application to literary criticism was discussed and applied, and several points of evidence were ruled.
      This was a trial at circuit.
      The action was brought by Charles Reade, an Englishman, residing in London, as author of a novel “ Griffith Gaunt ” to recover $25,000 damages, for an alleged libel published in the Bound Table, a Hew York weekly paper.
      The complaint, after stating the plaintiff’s profession as an author, and averring his authorship of the novel, alleged that when, in pursuance of arrangements therefor with the author, the book “ Griffith Gaunt ” was in course of publication in the Argosy, a London magazine, and in the Atlantic Monthly, by Ticltnor & Fields, of Boston, onthe 0th day of June, 1806, “ the said defendants falsely and with malice, composed, and published in said newspaper, at the city of Hew York, called the Bound Table, as aforesaid, of and concerning the plaintiff as an author, and of and concerning him in his said profession, business or employment, and thereby to injure him in his said business or employment, an article containing the false, libelous and defamatory matter following.” Here was set forth the notice published in the Round Table of “ Griffith Gaunt,” which charged that it was “ one of the worst stories that had been printed since Sterne, Fielding and Smollett defiled the literature of the already foul eighteenth century— that the book “ is not only tainted with this one foul spot, it is replete with impurity, it reeks with allusions that the most prurient scandal-monger would hesitate to make,” and the article recommended that the publishers discontinue it, as unlit for circulation in families.
      For a second cause of action, the plaintiff alleged the publication on the 28th of July, 1866, of another article of similar tenor; and for a third cause of action, alleged that the defendant published on the 11th of August, 1866¡ an article, entitled “Did Charles Reade write Griffith Gaunt?” which article asserted doubts as to whether the plaintiff was the real author of the work.
      The complaint concluded as follows: “ And the plaintiff further shows, that by means of the aforesaid wrongful acts and doings of the said defen7 dants, he has been and is greatly prejudiced in his credit and reputation as an author as aforesaid, and brought into public scandal, infamy and disgrace, and otherwise greatly wronged and injured, in and by the aforesaid wrongful and malicious acts and doings of the said defendants, to the damage of the said plaintiff in the sum of twenty-five thousand dollars. Wherefore, &c.”
      
        The answer admitted the plaintiff was an author, denied his authorship ■ of the novel in question, denied that the defendants published or owned the Round Table, but alleged ownership of it by an “ association.” It admitted the publication of the articles in the Round Table, and also that the innuendoes in the complaint were true as to persons and publications. It then alleged, that the articles complained of were just and honest criticisms of the novel, and privileged as such. It then justified the publication of the articles on the ground that they were true. In mitigation of damages it averred that the novel was identical in plot with two other novels previously published, and that parts of it were selections from other works. It closed with a general denial.
      The cause was tried at the circuit, before Mr. Justice Clebke and a jury.
      
        Frederick Gallatin, Elhridr/e T. Gerry, and William D. Booth, for plaintiff.
      
        U. F. Dimock, W. Q. Whitney, and Robert Sewell, for defendants.
      
        Gallatin opened the case for the plaintiff) and the articles complained of were read in evidence.
      George Yandenhoff, a professor of elocution, was then called by the plaintiff’s counsel, and proceeded to read at length the novel “ Griffith Gaunt.” After some portion of the book had been read,
      
        Whitney, for the defendants, objected to the further reading, on the ground that the authorship of the book was not proven.
      
        Gerry, for the plaintiff, insisted,—I. The course pursued is sanctioned by precedent (Strauss v. Francis, 4 Fost. & Fin. N. P., 939, 1107).
      II. The book was properly read in evidence as part of the plaintiff’s case, to prove malice in fact. Justification was pleaded, and in no other way could the jury judge of the truth or falsity of the articles, than by having the book before them.
      III. The plaintiff would be shown to have been the author before his case was rested, and it was a mere question as to the order of proof.
      IY. As to authorship, the two first articles complained of, and the innuendoes admitted by the answer to be correct, proved it.
      
        Mr. Justice Clebicb overruled the objection of non-proof of authorship, j but excluded the further reading of the book, on the ground that the articles complained of were libelous on their face, and the book was proper only in rebuttal of the defense of justification.
      The plaintiff then proved by two witnesses who had resided with the plaintiff at the time, and had seen him prepare the work for the press, that he was the author of the novel in question; that-he was paid twenty dollars a printed page for it, by Messrs. Tieknor & Fields, and a still larger sum by certain English publishers; that it had passed through three editions of 25,000 copies each in America; that the plaintiff had been an author twenty years, and enjoyed a reputation as such equaled only by Charles Dickens.
      Plaintiff further proved by the printers of the Bound Table, that the articles complained of were received by them from the defendants, and inserted pursuant to their directions; that each of the numbers in question were printed and distributed three days before its date, and that over 3,700 copies of each was so printed and published.
      Plaintiff then rested.
      
        Dimoch, for the defendants, then moved for a nonsuit on the following grounds:—I. The plaintiff, a foreigner, sues for injury to him as an author. Such a character has no recognized existence in our courts, even under the copyright law.
      II. There is no sufficient proof that plaintiff is author of the novel reviewed,
      III. The articles being written of the booh, the plaintiff cannot recover without proof of special damage (Foot v. Brown, 8 Johns., 53 ; Tobias v. Harland, 4 Wend., 537; Cooper v. Stone, 24 Id., 442; Swan v. Tappan, 5 Cushing, 109).
      IY. The articles were privileged as criticisms (Carr v. Hood, 1 Campb., 355, per Lord Ellenborough), and express malice must be proven to sustain this action (Lewis v. Chapman, 16 N. Y., 369). This is matter of law for the court (Cook v. Wildes, 5 El. & Bl., 340; Somerville v. Hawkins, 10 Com. B., 583; Taylor v. Hawkins, 16 Q. B., 308).
      
        Mr. Justice Clerke.—In regard to the first objection made, that because Mr. Beade sued in a representative capacity, and as a citizen of a foreign State, he could not maintain this action, the point is untenable (Pisani v. Lawson, 6 Bing. N. C., 90 ; Tuerlote v. Morrison, Yelv., 198; Bulst., 134; Dows v. Maloney, 8 Abb. Pr., 329). Bonaparte sued a London printer, named Pelletier, for serious charges made against him as a sovereign, and it was in that case that Mr. Mackintosh first came into prominence as an advocate. But here Mr. Beade dbes not sue only as an author. In his complaint he says, he was greatly prejudiced in his credit and reputation as an author, and brought into public scandal, infamy and disgrace. The disgrace must refer to him as a man (Lewis v. Walter, 4 Dow. & Ry., 813). The copyright law makes no distinction of that sort at all. That law is intended solely to protect American'authors in their right to their productions. As to the articles themselves, I hold as matter of law, that they are libelous on their face, and hence not privileged within the rule as to criticisms. I do not think the other points taken by counsel tenable, and therefore deny the motion.
      
        Sewell then opened the case to the jury for the defendants.
      The testimony of the defendants under stipulation was then read to the jury in their absence; to the effect that the Round Table was owned and organized by a corporation called the “ Bound Table Association.” It was established and conducted as a literary and critical paper. The defendants were shareholders in the organization. They had never known the plaintiff personally • they had known him only through his works; they never had any communication with him. Understood from the proprietors of the Sunday Mercury that “ Griffith Gaunt ” was offered for sale to them. When the articles complained of were published in the Round Table, they believed them to be correct. Ticknor & Fields sent copies of the Atlantic Monthly containing chapters of “ Griffith Gaunt" to the Round Table, with a request that the editors would pass their critical opinion upon the numbers.
      
        Whitney, for the defense, then offered in evidence a copy of the Evening Post, of June 26, 1866, as showing that other similar articles had appeared in other papers.
      
        Gerry, for the’ plaintiff, objected,—I. This article appeared subsequent to the’ defendants’ articles, and hence they could not have known of it when tl ey wro e them (Bush v. Prosser, 11 N. Y. [1 Kern.], 361).
      If. At best it is only proof that other libels were published by other parties (Hager v. Tibbits, 2 Abb. Pr., 97; Lewis v. Walter, 4 B. & Ad., 611 ; De Crespigny v. Wellesley, 5 Bing., 392; Ward v. Weeks, 7 Bing., 211).
      
        Mr. Justice Clerke excluded the evidence.
      
        Whitney, for defense, then offered two novels, entitled “ Queen of Hearts ” and “ Eighth Commandment,” written by the plaintiff, to show that “ Griffith Gaunt ” was a plagiarism, and that the plaintiff admitted that he was a plagiarist.
      
        Gerry objected that there was no such defense, and that the evidence offered was not admissible, even in mitigation.
      
        Mr. Justice Clerke. I cannot see that the evidence is revelant. Nothing is more common than for standard authors of known repute to borrow ideas from others, and dress them in their own language. Shakspeare himself copied into his plays other stories, and many of his plays are based on Cynthia’s novels. But the evidence may aggravate the damages, and I will admit it.
      
        Whitney then offered 18 Howell State Trials, 1181, to show that a speech therefrom was copied verbatim in “ Griffith Gaunt.”
      
        Gerry objected, on the ground that that part of the novel was 'published subsequent to the articles, and cited Bush v. Prosser (supra).
      
      
        Mr. Justice Clerks sustained the objection.
      
        Wiitney then offered a letter of the plaintiff published by the defendants in the Round, Table after the publication of the articles entitled the *11 Pru-. rient Prude.”
      
        Gerry objected,—I. That the publication of this, letter was the act of the defendant.
      II. That the whole paper should be put in'evidence.
      Mr.. Justice Clerke admitted the whole paper.
      
        Whitney then called Richard H. Stoddart, who testified he had been an author and literary man for twenty years, and that it was a common custom for authors having a book to write to employ others to aid them in compiling it, and that such fact being known would not damage their reputation.
      
        Whitney then -called Richard Grant White, who testified to the same in substance, and also that he had read “ Griffith Gaunt,” introduced it in his own family, and that its literary merits were very high.
      
        Gerry, on cross-examination, asked the witness what was the reputation of Mrs. Henry Wood as an authoress in the literary world.
      
        Wiitney objected.
      
        Gerry insisted that the evidence was competent to show malice against the plaintiff, because one of the articles complained of attacked also the character of Mrs. Wood. He cited Miller v. Rutler (6 Cush., 71); Coddy v. Barlow (1 Moody & R., 275).
      
        Mr. Justice Clerke allowed the question, and the witness replied he had never heard it assailed.
      
        Gerry then asked the. following question: “ Suppose an article should appear in a literary weekly paper having a circulation of over 3,700 copies per week, and that article should contain a charge against an author of the position in the literary world second only to that of Mr. Charles Dickens, with having published a novel which was grossly impure, a book not merely tainted with one foul spot, but replete with impurity, reeking with allusions that the most prurient scandal-monger would hesitate to make; dealing throughout with vice so familiarly, so much as a matter of course, and with such an assumption of straightforwardness as to divest it of all the repulsiveness it should wear; should state that he is an author of position and splendid talents, and then say that these splendid talents only aggravate his offense, and render the influence of the story worse than the detailed proceedings of a crim. con. case by just the proportion in which his writings are more graphic and fascinating than newspaper reports; and state, in addition, that the publishers of the story have no right to introduce into thousands of virtuous families, and to children and girls whose parents accept it unquestioned on their indorsement, such reading; and should assert in addition, and finally, that such a book was only fit for the pages of the avowed organ of the ' demi-monde ; ’—assuming an article of this description should appear in a weekly newspaper, of high authority in the literary world, what effect would it have on the character of such an author so assailed ?”
      Counsel cited in support of his question, People v. Lake (12 N. Y. [2 Kern.], 358.
      
        Whitney objected, and the court excluded the question.
      
        Whitney then proved by a publisher that, after the libels, he had published an edition of 11 Griffith Gaunt,” and sold sixty thousand copies, but neither he himself or any one had paid for it. Also, that hardly any novel had ever sold so well.
      After proving publication in other papers of the “ Prurient Prude ” letter, defense rested.
      
        Gerry, in rebuttal, then offered to read in evidence an editorial article in the Round Table of October 15, 18C6, being the same number of that paper in which was published the letter of Mr. Charles Reade, and which article was headed “An English Bully.” He proposed to read this as showing the animus of the defendants, even after the libels had been published.
      
        Sewell objected to the admission of this article, on the ground that anything tending to an aggravation of the original libel is not admissible, and cited Root v. Loundes (6 Hill, 518) as showing that no other matter, which would itself sustain an action for libel, can be admitted, as then the plaintiff would recover twice for the same words.
      
        Gerry cited Rustell v. Macquister (1 Campb., 48, n.); Tate v. Humphrey (2 Id., 73, n.); Lee v. Hudson (Peake N. P., 167) ; Chubb v. Westley (1 Carr. & P., 436); and Code, § 93, to show that the statute of limitations had run, and the case relied upon by the defendants’ counsel did" not apply.
      
        Justice Clerke decided that the reading of the article in question might be permitted.
      
        Both sides then rested.
      
        Whitney summed up for the defense, and commented on the book “ Griffith Gaunt,” certain portions of which he read at length.
      
        Booth, in summing up for the plaintiff, cited and referred to People v. Crosswell (3 Johns. Cas., 393), as showing the distinction laid down by Chancellor Kent between the liberty and license of the press.
      
        Gallatin, for plaintiff, requested the court to charge as follows :—I. Where, under guise of reviewing a book, a criticism attacks the author’s character, it ceases to be privileged as such, and is actionable as a libel (Cooper v. Stone, 24 Wend., 434; Fry v. Bennett, 3 Bosw., 210; Cooke on Defam., 58; Stuart v. Lovell, 2 Starkie, 73; Greene v. Chapman, 4 Bing. N. C., 92; S. C., 3 Scott, 340 ; Strouse v. Francis, supra). The two first articles are within this rule.
      II. Language of one in his trade or profession is actionable when it imputes to him fraud, misconduct, or want of integrity in that profession or business; and the third article charges jfiaintiff with defrauding Ticknor & Fields (Baboneau v. Farrell, 15 C. B., 360; Bryant v. Loxton. 11 Moore, 344; Davis v. Davis, 1 Nott & McC., 290; Fowles v. Bowen, 30 N. Y., 20.
      III. The articles complained of, in substance, charge the plaintiff with being author of an obscene book. This alone renders them libelous, and actionable as such (Viele v. Gray, 18 How. Pr., 550; Brooker v. Coffin, 5 Johns., 188; Rex v. Wilkes, 4 Burr., 2527; Rex v. Curl, 2 Strange, 788.
      IY. A printer of a newspaper is bound to abstain from publications which he knows to be libelous, with more than ordinary care. It is no apology for him that he is not the author, for he who wantonly publishes a libel is as guilty, in the eye of the law, as he who writes it. The injury is done by the publication. (Dexter v. Spear, 4 Mas., 116, per Story, J.; Burdett v. Cobbett, 5 Duer, 201; Sanford v. Bennett, 24 N. Y., 20).
      Y. If the jury believe that the tendency of the publications complained of was injurious to the plaintiff, the law presumes the defendants, by publishing it, intended to produce that injury which it was calculated to effect (Haine v. Wilson, 9 Barn. & Cress., 643). (1.) In their verdict, they are not limited to the actual damage he sustained, but may give further damages suited to the aggravated character their act has assumed (Taylor v. Church, 8 N. Y. [4 Seld.], 460). (2.) And the original wrong has been aggravated by their defense of justification, in which they have wholly failed (Fero v. Ruscoe, 4 N. Y. [4 Comst.], 162; Hunter v. Sharp, 4 Fast. & Fin., 992, per Cockburn, Ch. J.).
      
        
        Sewell, for defendants, requested the court to charge the propositions) supra, on motion for nonsuit, and further,—
      V. If the jury find from the evidence that the articles were justified by the character of the novel 11 Griffith Gaunt,” then, whether they were privileged or not, the plaintiff cannot recover.
      YI. If the jury find for the plaintiff, they are not to award damages for supposable loss resulting to the plaintiff from the sale of the edition of the novel published after the libels, and for which he received no compensation.
      
        Mr. Justice Clerke then charged as follows:—Gentlemen of the Jury: Among the rights of perfect obligation, which alone the law undertakes to protect, that of reputation is one of the most prominent. Many men, unfortunately for the well-being of society, are totally regardless of principle, and are therefore totally regardless of reputation. But to every member of society who, differing from the beasts that perish, is guided by principle, reputation is necessarily very precious. He is very sensitive in relation to it, and it would be most unwise as well as most unjust not to offer him ample and efficient means of vindicating it when it is unjustly assaile'd. Accordingly, the law allows an action for the recovery of damages as means of redress for injuries in cases of defamation. It allows for oral defamation an action technically called an action of slander; for written defamation or defamation by printing or pictures, it allows an action technically called libel. Our law, like the Roman law, recognizes a very marked distinction, between spoken defamation and defamation communicated' by writing, j printing, pictures, or signs. Matter calculated to cast ridicule upon a man,1 or to degrade him in the opinion of his acquaintances or of the community, is libelous, 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, and no proof of special damage is necessary. A general oral charge, even of having sworn falsely, without reference to material evidence given by the plaintiff at the trial of a cause, is not actionable in itself, but it is actionable to print and publish concerning a man, “ Our army swore terribly in Flanders, as said Uncle Toby; and if Toby were alive now, he might say the same thing of some modern swearers—the man is no doubt swearing to an old story.’’ A libel, then, as applicable to individuals, may be defined to be a malicious publication, expressed either in printing or writing, or by effigy, tending either to injure the memory of one dead or the reputation of one alive, and expose him to public hatred, contempt, or ridicule.
      The plaintiff, in his allegations in the complaint, first states that he is the author of a certain work called “ Griffith G-aunt,” and that certain articles published by the defendants are libelous. As these have been spread before you I will not now read them. Two of them were to the effect that this work was calculated to demoralize society, to debauch public morals, and to contaminate the purity of the youthful mind. The third article accuses—but whether it amounts to an accusation you are to determine— that he allowed an obscure person to assume his name, and to pass off the book here as his original production. The two first are essentially different from the third. The former accuse him of writing and disseminating works calculated to debauch and demoralize the public mind, and the latter accuses liim of what, the plaintiff’s counsel contends, is absolutely an accusation of fraud. Now, in regard to. the allegation in the'complaint that Mr. Charles Eeade is the author of “ Griffith G-aunt,” you have had the evidence of two witnesses who lived in his house for five or six months. They saw the manuscript, saw him actually engaged in the composition of the work, and saw him hand over his original manuscript to his amanuensis, and saw him receive it back^tgain from his amanuensis, then send it to the printers, then receive the proof, correct it, and send it back to them. It is scarcely necessary for me to say that, in my opinion—though you are to judge—the proof is ample as to the authorship.
      With regard to the two first alleged libels, have the defendants transcended the limits of allowable criticism in these two articles ?
      In criticising the productions of an author, the law allows considerable latitude. The interests of literature and science require that the productions of authors shall be subject to fair criticism; that even some animadversion may be permitted, unless it appears that the critic, under the pretext of reviewing his book, takes an opportunity of attacking the character of the author, and of holding him up as an object of ridicule, hatred, or contempt. In other words, the critic may say what he pleases of the literary merits or demerits of the published production of an author; but with respect to his personal rights, relating to his reputation, the critic has no more privilege than any other person not assuming the business of criticism. For instance, he may say that the matter is crude, forced and unnatural, that it betrays poverty of thought and abounds with common places and platitudes, being altogether flat, stale, and unprofitable, and that its style is affected, obscure, and involved. He may say, as Burke said of the style of Gibbon, that it is execrable; but he cannot say that the author himself is execrable, or that he is personally affected or absurd or wayward.
      The critic has the same liberty, under the same restrictions, in relation to all people who come before the public for praise or censure. He may say of the orator who uses excessive gesticulation and vociferation, mistaking - extravagant action and verbosity for eloquence, that he has all the contortions, without any of the inspiration, of the Sybil. He can say of the player that he mouths his speech, as many players do, or that “he saws the air too much with his hand,” or that he “ tears a passion to tatters, to very rags, to split the ears of the groundlingsbut he cannot abuse him as “ a robustious, periwig-pated fellow,” and recommend that he should be “ whipt for o’erdoing Termagant.” The critic can call a painting a daub and an abortion, but he cannot call the painter himself a low, dis creditable pretender and an abortion. The most comprehensive freedom in animadverting upon the productions and actions of public men is essential to the very existence of civil and political liberty, and to the progress of civilization, and I heartily say with Lord Ellenborougii, in Tabart v. Tipper (1 Campb., 350), “ Liberty of criticism must be allowed, or we should have neither purity of tasto nor of morals. Fair discussion is essentially necessary to the truth of history and the advancement of science. That publication, therefore, I shall never consider a libel which has for its object not to injure the reputation of any individual, but to correct misrepresentation of fact, to refute sophistical reasoning, to expose a vicious taste in literature,- or to censure what is hostile to morality.” But, gentlemen, although a critic may not have directly assailed the character of an author, or ridiculed his personal appearance, his manners, his voice, or exposed any eccentricities or defects of the man, may he not, nevertheless, defame him and wound him in the most vital spot by imputing to him unworthy motives and evil designs against the well-being of society, intimating that he infers these motives and designs from the sentiments expressed and the characters delineated in. the work which he has undertaken to review. My own opinion, gentlemen, is that many of the works of fiction which are published in this country are very pernicious in their effects upon public moralty. Hot that I think fiction in itself is demoralizing—very; far from it. The most instructive lessons in faith and morals have been.conveyed through its instrumentality. The founder of Christianity Himself did not disdain frequently to employ it. Indeed, it was his favorite method of moral t.nd spiritual instruction. But in its very fascination consists its danger, and when we see the press teeming with productions of this kind, describing scenes and portraying characters calculated to corrupt the morals and even weaken the mental stamina of the multitude of novel readers, who seem to be absorbed in this kind of reading, it will be prudent to allow considerable latitude of criticism in relation to these productions.
      y/There is one virtue which women of honor have not only always observed, but have tenderly and ardently cherished, and, I may say, adored.' They esteem it as a sacred jewel, its price far above rubies, and the woman who is without it is deemed lost to all virtue. The want of it disfigures her whole nature, and any community in which the want of it is prevalent, depend upon it, is on the rapid road to ruin. The tendency of many of the productions to which I have referred is to weaken the foundations upon which this virtue is based. They are almost as mischievous as the plays which abounded in the profligate reign of Charles II., when the foulest and the most hideous corruption prevailed in the court and among the higher classes. I have often wondered that society escaped the destruction which that corruption was calculated to produce. I do not say that English novels are as mischievous in this respect as similar works of fiction published in France. ! For there, in such works, open adultery seems to be especially admired'and honored. Unholy love, like unsanctified human reason at a memorable period of its history, seems to be deified in that land. The writer who has contributed most to this dreadful condition of things is a profligate woman, although she has shown some token of decency by assuming the name of a man.
      I make these observations, gentlemen, to show that in dealing with this kind of literature the critic should not be prevented from inferring the motives and designs of the author from the inevitable effect of his writings. Of course, if he imputes motives and designs which he was not warranted in imputing by any opinion or sentiments expressed, or any character delineated in the work, or from its general tone, he is liable, and must take the consequences, and the author is entitled to redress. To charge an author with such motives and designs is a most serious imputation, and if it is unwarranted the critic has committed a grievous wrong, which money is scarcely capable of repairing. Undoubtedly, the criticisms complained of make these imputations against the plaintiff. That can scarcely be denied.
      I repeat, that it is not necessary for me to read these articles; I have no doubt you understand them. The jury have the right to determine—for it it is plain that the articles are prima fade libelous—whether “ Griffith Gaunt ” is obnoxious to such imputations; and if so, you have the right to infer the culpability of the plaintiff, and the truth of the justification. I do notmcan to examine the pages of the book before you. I hope you have read the whole, or a-large portion of it. The three chief characters in the work are, Gh-iffith_Craunt, Caroline .Ryder, and Mrs. Gaunt, once the beautiful Catharine Peyton. Griffith Gaunt is not, to my mind, a very attractive character. He is a rough north country squire. He is not prepossessing in his manners, or elevated in his mind, and there is nothing whatever about him calculated to excite the admiration of the virtuous and refined; and I am very much astonished that so charming a person as Catharine^Peyton should have fallen in love with him. He was guilty of bigamy. But is there anything in the work itself to set off this crime, to make it alluring, and to induce others to follow his example ? That is a proper consideration. Is he so fascinating in character, or has he any other qualities, any heroic qualities, any great intellectual or moral qualities, to set off his guilt and to recommend it to others for an. example. Are the circumstances, which are represented to have caused and to have attended his conduct, calculated to entice the reader into an approval, not to say imitation of it? His guilt is not described as the result of inherent, deliberate wickedness, of depravity, gratuitous and utterly selfish. Believing that his wile was false, maddened at the thought that one whom he had loved intensely, whom he had supposed to be the paragon_ of purity and honor, was a hypocritical wanton, he fled from her, far away, determined never to see her again. In his new and humble home he became, immediately after his arrival, grievously and dangerously ill, and would have died but for the devoted attention of a modest and pleasing maiden; and, persuading himself that he was forever freed from his wife, he went through the form of a marriage with this girl, some time after his recovery. She devoutly loved and admired him, and, of course, thought lie was bound to no other woman. In his delusion about his wife’s supposed guilt, in his resolution never to see her again, and in his resignation to his new attachment, which he imagined he could not avoid, he seems almost like a man in the inexorable grasp of the destinies. Hot quite an CEdipus indeed, although the tumult of his mind and the horrors of his condition are described with a power scarcely inferior to that with which Sophocles, in his “ CEdipus, the King,” “ CEdipus at Colonus,” and in his “ Antigone,” describes the unexampled miseries of a doomed family of victims. Still, Griffith Gaunt greatly erred; and, unlike CEdipus, he wás"a conscious doer of disastrous deeds. Hext we have Caroline Ryder. She is the very incarnation of sensuality; and she, like the man she fell in love with, had a ruddy face, a well-developed person, a well-developed chest, and, I think the author says, had fine teeth. But is there anything in her character which can give a gloss to her crimes, or make them worthy of imitation by the reader, whether young or old? Now, gentlemen, the mere delineation of a character in a novel, the mere setting forth a certain kind of wickedness in a character, is not necessarily demoralizing. ' If that were the case, every man would be obliged to send away from his library real history. If fictitious history is not allowed to do what real history does, the novel would be entirely destitute of interest. I repeat, that the mere delineation of a character is-not necessarily demoralizing. Look at all the histories of ancient and modern times, the history of Thucydides, the biographies of Plutarch, and modern histories and biographies; tljey all represent real men, who were cruel, earthly, sensual, and devilish.
      In modern times, we have only to go to the last century to look at the character of Catharine, Empress of Russia. She certainly was much more wicked than Caroline Ryder, for she had a lover almost every week, and when she got tired of him, she killed him. But are we not to read the history of Russia in the reign of Catharine ? Still, there may be something else objectionable in this work beside the delineation of character. I only wish to impress upon you that the mere delineation of a vile or vicious character, unless it is presented to the reader in some seductive shape, does not make the author criminal, or liable to the charge of demoralizing society. You are to consider, also, whether all the events which the author states in any part of his work happened to them, were calculated to encourage similar conduct in others.
      As to the third article, gentlemen, accusing the plaintiff of allowing his name to be given to the productions of others, and that this was fraudulent, I do not intend to dwell upon that. It has been shown by several witnesses that it is a very common practice for an author to allow his name to be used, when the materials, perhaps, are furnished by others, but that he usually superintends the work, revises it, and perhaps adds to it. They say this is a very common practice, and is not considered dishonorable. If you believe this third article amounted really to a charge of that kind, I do not know that there is anything libelous in it. It is for you to determine, however. If you believe it to be a dishonorable practice, you should find it to. be libelous.
      The next inquiry is as to the damages.
      You have a right to consider whatever injury in mind the plaintiff has sustained by these charges, and you may go even further; you may consider what he is entitled to as compensation for his wounded character, if it has been wounded; and you have the right to consider what injury hereafter he may suffer, for I hold that prospective damages are allowable in this action. They have been allowed in several instances, and I think it may be considered as settled that they may now be awarded, when they are incident and accessory to the action, and where no separate action can be maintained for them.-
      In conclusion, gentlemen, I commit the case to you, confident that you will give it careful consideration, and that your verdict will be in accordance with justice to the parties and to society.
      The jury found a verdict for the plaintiff, and assessed the damages at six cents.
    
   Freedman, J.

This action, is brought by the plaintiffs, as a corporation, against the defendant, for the recovery of $180,000 damages, alleged to have been sustained by reason of divers alleged libelous publications of and concerning the plaintiffs, contained (1) in a pamphlet entitled Life Insurance Chart, annually published by the defendant, and embodying a brief synopsis of the annual returns of life insurance companies ; and also (2) in three advertisements inserted in different public journals published in the city of Hew York, and inserted by the defendant with the view of calling the attention of the public to said Life Insurance Qhart, and containing substantially the same statements concerning the plaintiffs’ company, claimed by them as libelous in the chart. Upon the complaint in this action, and an affidavit sworn to by the president of the plaintiffs’ company, and an aflB.davit sworn to By one of the attorneys of the plaintiffs, an order of arrest was obtained from one of the justices of this court, and in pursuance of said order the defendant has "been arrested, and compelled to give bail for Ms appearance in this action, consisting of two sureties, justifying in the sum of $10,000 each. The defendant moves upon affidavits made in his own behalf, and also upon the complaint and affidavits of the plaintiff, upon which the order of arrest has "been granted, to vacate the order of arrest, or for a reduction of bail.

Subdivision 1 of section 179 of the Code provides that a defendant may be arrested in an action for the recovery of damages, on a cause of action not arising out of contract .... where the action is for an injury to person or character, &c., &c. Section 180 prescribes that an order for the arrest of a defendant must be obtained from a judge of the court in which the action is pending, and, according to. section 181, the order may be made by the judge, whenever it shall appear to the judge by the affidavit of the plaintiff', or of any other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section 179.

These provisions do not give to the plaintiff an absolute right to an order of arrest; the language of the Code is permissive only ; the words of the Code are not that the judge shall make the order, but merely that the order may be made. It therefore rests in the sound discretion of the judge to grant or refuse the order. In Davis v. Scott (15 Abb. Pr., 127), Daly, F. J., says that it is a proper exercise of that discretion to grant the order of arrest only in actions of assault and battery, libel or slander, where it would have been granted under the former practice, or in extreme cases of very outrageous batteries ; or when it is shown by affidavit that the defendant is a non-resident; or from facts and circumstances that there is good reason to believe that he is about to, or may, depart from the State ; and at the same time that learned jurist proves by authority that by the practice established in the supreme court when the Revised Statutes went into effect (1828), an order would not be granted for the arrest of a defendant in actions of assault and battery, libel or slander, except slander of title, unless the defendant was a transient person, or was about to depart from the State, or unless in very extreme cases of violent and cruel batteries ; and shows that a strict acLherence to the salutary rule referred to by him, which has prevailed in this State from a very early period, is not inconsistent with the provisions of the Code. The granting of the order of arrest in this matter was therefore a matter of discretion for the judge granting the same.

The plaintiff seems to agree to this proposition, but strenuously insists that the exercise of that discretion by one judge will not be reviewed by another.

Section 204 of the Code provides that a defendant arrested may, at any time before judgment, apply on motion .to vacate the order of arrest, or to reduce the amount of bail, and it has been well settled that the motion referred to in this section may be made before the judge who granted the order,- or before any other judge ; in the latter case, it belongs to the class of motions termed iron-enumerated motions, which must be made upon notice to the adverse party, and which, according to the rules of the court in force at the present time, should be heard at special term only. To deny to a defendant, arrested upon an order of a judge made out of court, a hearing and thorough investigation at special term would, indeed, be a great hardship. A judge, upon granting an order of arrest, is only bound to see that the plaintiff presents a prima facie case, and if, at the same time, the plaintiff tenders a sufficient undertaking to the effect, that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding a certain sum, which is specified in the undertaking, and which shall be at least $100, an order of arrest under our present system of practice is often granted as a matter of course. In such case, the judge granting - the order hears only one side ; the plaintiff’s statements may be highly colored and strained ; different conclusions may be drawn from them; the judge applied to, being pressed with other business, has not the time to examine them very minutely, but grants the order in the expectation that if the defendant is able to overcome or explain the case, as made by the plaintiff, he will not neglect to do so, and set himself right before the court, either upon the plaintiff’s own papers, or upon new affidavits prepared on behalf of the defendant.

Nor can I subscribe to the proposition advanced by the learned counsel for the plaintiff, that the defendant, by giving bail, has precluded himself from questioning , the sufficiency of the plaintiff ’ s complaint and original affidavits to sustain the order. The case of Stewart v. Howard (15 Barb., 26), cited in support of this theory, simply decides that a person arrested on civil process waives his personal privilege from arrest as a witness by giving bail; and the case of Dale n. Radcliffe (25 Barb., 383), is not in point now, for the reason that at the time of the decision made in that case, a defendant, arrested under the provisions of the Code, was compelled to move to vacate the order of arrest before the justification of his bail.

As the Code now stands, he may move at any time before judgment, and section 183 provides further that an order of arrest shall be of no avail, and shall be vacated or set aside on motion, unless the same is served upon the defendant, as provided by law, before the docketing of any judgment in the action, and that in all cases the defendant shall have twenty days after the service of the order of arrest in which to answer the complaint in the action, and to move to vacate the order of arrest, or to reduce the amount of bail.

Having thus disposed of some of the most important preliminary questions raised upon the argument of this case, and passing over others raised partly by the plaintiff and partly by the defendant, but which I clo not deem of great importance, I proceed to examine the application upon the merits involved in it.

On the part of the defendant, the right of the plaintiffs • to bring this suit as a corporation has been questioned. The books contain but three precedents for such action by a corporation (Trenton Ins. Co. v. Perrine, 3 Zab., 402 ; Metropolitan Saloon Co. v. Hawkins, 4 Hurl. & Nor., 87; Shoe & Leather Bank v. Thompson, 18 Abb. Pr., 413). In all these cases the language used was defamatory. The right to bring the action was based on ■ the damages sustained by the companies ; or, to use the language of Pollock, C. B., in the English case, “A corporation may maintain an action for libel by which its property is injured.” “ The true rule,” says Ingraham, P. J., in the Shoe & Leather Bank case, already referred to, “ seems to be as to the power of corporations to maintain actions, that they may do so in all cases necessary for the preservation of their property and rights, and for the recovery of any damages occasioned by- the wrongs of others, but not for those damages to person and character, for which an individual may recover unconnected with loss or injury to property.”

This being, therefore, in some respects, a new remedy, it will not be more extensive than analogous remedies given to individuals—nay, it necessarily must be more limited. But analogies may be borrowed from the former, as follows: if the alleged libel must be defamatory as to an individual, it must be so as to a corporation. If express malice would be necessary in the one case, it is in the other. The necessity of an averment, and the mode of averment of special damage, and the mode of proof, if necessary in the one case is necessary in the other.

Upon a careful consideration of the principles involved in such cases, I have come to the conclusion that a corporation engaged in a business in which credit may be material to its success, may maintain an action of libel without proof of special damage, where the language used. concerning it is defamatory in itself, and injuriously and directly affects its credit, and necessarily and directly occasions pecuniary injury ; but that in all other cases the averment and proof of malice and special damage is necessary. And I am also of the opinion that whenever a corporation is entitled to maintain an action of libel in the cases specified, it may also procure an order for the arrest of defendant under section 179 of the Code, as a provisional remedy in that action. In such case the word “ character,” contained in subdivision 1 of section 179, must be construed to mean “business character.” It remains, therefore, to inquire whether, upon the case as made by both sides, sufficient grounds appear for the arrest of the defendant.

The complaint embraces five counts. The first count sets out the following language, taken from the Life Insurance Chart, hereinbefore referred to, as one of the libels complained of: “ Knickerbocker: Stockholders are entitled to 13 per cent, annually on capital over legal interest ; dividends declared to policy holders the sixth year and annually thereafter.”

The second count sets out the same language and the following passage as an additional libel: “Knickerbocker. Dividends when applied on—Life, sixth year— Endowment, sixth year—Ten years—sixth year.”

In the third, fourth and fifth counts, the plaintiffs complain of the following passage appearing in the advertisement inserted by the defendant in three public journals published in the city of New York: “Knickerbocker, No. 161 Broadway, New York. Stockholders are entitled to 20 per cent, of the profits, besides an interest dividend on the capital. . . . Interest and profit dividends paid to stockholders on §100,000 capital from 1853 to 1867, §139,310.75.

The plaintiffs claim that the defendant, by the several publications aforesaid, intended to charge and to induce people to believe that stockholders in said company were entitled to receive, and did receive, a dividend of thirteen per cent, over legal interest on the stock held by them therein ; that no dividends were declared to the holders of policies issued by the company until the sixth year after the issuing of the. same, whether the said policies were issued for the term of the natural life of the person * insured thereby, or whether they were endowment policies, or policies having ten years to run; that stockholders in said company were then entitled to receive and that they did therefore receive twenty per cent, of the profits of said company, beside an interest dividend on the amount of capital stock held by them respectively, and that there had been paid to stockholders in said company from 1853 to 1867, the sum of $139,310.75 on a capital of $100,000. The plaintiffs further claim and allege that in truth and in fact stockholders in said company were not entitled to, and did not receive a dividend of thirteen per cent, annually over legal interest on their stock; that dividends were then declared to policyholders before the sixth year after their policies were issued ; that stockholders in said company were not entitled to and did not receive a dividend of twenty per cent, of the profits, besides an interest dividend on the amount of capñtal stock held by them respectively; nor had' said company paid to stockholders the sum of $139,310.75 as interest and profit dividends on $100,000 capital from 1853 to 1867.

The plaintiffs, in the first, third, fourth and fifth counts, further charge, upon information and belief merely, that at the time of publication the true state of affairs was well known to the defendant; the second count contains no such allegation. Each of the counts set forth in the complaint contains a further allegation that the defendant, well knowing the premises, but intending to’ destroy the reputation of said plaintiffs, and injure their business, did compose and publish the matters complained of.

This is the only allegation contained in any of the plaintiffs’ papers used on this motion charging malice or an evil intent on the part of the defendant. The affidavits of the plaintiff do not charge the defendants with malice or any evil intent whatever, nor set out a single fact from which the same could be inferred. Each of the five counts embraced in the complaint concludes with the following specification of special damage : “ That by reason of the premises a large number of persons refused to take policies of insurance issued by this plaintiff, or to make application to the plaintiffs for insurance, whereby said plaintiff was injured in its reputation and business, and lost a large amount of premiums which it would have received, and whereby it sustained large damages,” &c. None of the affidavits contain a further specification of damage, nor any facts from which the extent of the plaintiffs’ damage, if any, could be seen. The president of the Knickerbocker Life Insurance Company, in an affidavit sworn to on the 2nd day of February, 1869, further shows that the stockholders of said company, “prior to Jan. 1, 1868, had not received on an average exceeding two per cent, annually over legal interest on their capital stock, and that the total amount of interest and profit dividends paid to the stockholders of said company, from 1853 to 1867, did not exceed $115,000,” &c., &c.

The foregoing statement contains substantially all the material facts upon which the plaintiff relies. Mfhe language complained of not being actionable per se, the averment and proof of malice and special damage is necessarwj This the plaintiff attempted to set forth in the complaint, which is sworn to by the president of the company, and has been used as an affidavit upon the application to obtain the order of arrest. But frequently a sworn complaint will not be alone a sufficient foundation for the order of arrest, for the reason, that, although the averments may be sufficiently specific to sustain the complaint, as such, they may not be sufficiently so to sustain an order of arrest. Thus, in an action of malicious prosecution, it is enough for the complaint to set out in general terms malice and want of probable cause.

But to sustain an order of arrest this is not enough. The facts relied on as presumptive evidence of want of probable cause must be set forth in the affidavit, so as to enable the judge to whom the application is made to draw the proper conclusion of law. If such facts are omitted, the party swears only to his own belief, and thus his own opinion, or that of his counsel, is substituted for a judicial decision (Yanderpoel v. Kissam, 4 Sand/., 714).

In the same manner it is necessary in this case that the complaint in this action should not only charge that- at the time of publication the true state of affairs was well known to the defendant (and this is done merely upon information and belief), that the defendant intending to destroy the reputation of the plaintiffs, and injure their business, did compose and publish the matters complained of, and that the plaintiffs sustained the damages alleged therein, but that the affidavits of the plaintiffs should contain sufficient facts from which the judge or court can see that the defendant must have known the true state of affairs, that he was actuated by malice in making the publication, and that the plaintiff suffered damage in consequence thereof. This the plaintiff did not do, although his counsel seems to have been fully aware of the necessity thereof, for an affidavit thereof was attached to the verified complaint sworn to by the president of the Knickerbocker Life Insurance Company on the same day the complaint was verified, in which the said president swears that he has read the couu¿aint in this action and knows the contents thereof, ancfihen goes on and confines himself to show in what respects the publications of the defendant were false, but wholly omits to swear that the allegations contained in the complaint are true. The same omission occurs in the affidavit read by the plaintiffs in opposition to the motion to vacate the order of arrest, so that upon the plaintiffs’ own papers I am asked to uphold the order of arrest upon the bare fact of the publication of a statement not defamatory in itself, the falsity of the same in some particulars, and an allegation of damage, the extent of which, if any occurred, I cannot ascertain.

. As the words complained of are not libelous on their face, the plaintiffs are bound to show, by facts and circumstances, how they became libelous, and that the defendant at the time of their publication knew their libelous character. Presumption of malice can only arise when the publication, on its face, is capable of conveying an injurious effect. Every man is presumed to foresee and intend all the mischievous consequences that may justly be expected to flow from his voluntary acts. But the cases of constructive malice are exclusively such as involve words capable of bearing in themselves a libelous meaning. The law in such cases reasonably presumes no more than this, and when a hidden defamatory meaning is sought to be attributed to words in themselves innocent, and on their face containing no such sense, by extrinsic facts outside and independent of the publication itself, the knowledge of such facts must be shown, by averment and proof, to have existed in the breast of the defendant at the time of publication.

The words complained of do not even necessarily imply a charge of mere mismanagement against the company or its officers ; on the contrary, as long as the press and the public remain divided in opinion as to the best plan upon which life insurance companies should be organized and carried on, the statements published by the defendant concerning the plaintiffs may be looked upon by many as highly eulogistic of the safe and prudent manmer in which the affairs of the plaintiffs’ company have been heretofore conducted ; they may with many people amount to a positive recommendation, for they certainly seem to demonstrate that so far the plaintiffs’ company has been very careful in assuming risks, and fortunate besides. The words being capable of this interpretation, the burden of proof is upon the plaintiff to show by facts and circumstances that they were used in a libelous sense, and that the defendant was actuated by malice. The plaintiffs have failed to do so.

The defendant, on the other hand, shows by affidavit that he has been for over fifteen years past a resident of the city of New York ; that he is a man of family, has been a tax-payer on personal estate in the said city for several years, and that he has no intention to leave the same or remove therefrom; that he was from 1859 to 1868 one of the editors and proprietors of a monthly journal called The Wall Street Underwriter and General Joint Stoch Register, published in this city ; that he had been since September, 1868, the sole editor and proprietor of said publication ; that in the pursuit of his business he frequently had occasion to and continually does give to the public statistical information of the state and condition pecuniarily or otherwise of the insurance companies of this and other States devoted to the life, fire or marine business; that the pamphlet referred to by the plaintiff as the Life Insurance Chart, containing the matters complained of in the first and second causes of action, is a fair and truthful compilation, gotten up by him from extracts from the original verified statements filed in the Hew-York Insurance Department, of forty-four life insurance companies in the United States, and was not a publication directed at the Knickerbocker in particular, any more than at the other forty-three companies named in it.

The defendant then goes on and shows how he compiled the facts published in said Chart, and in the advertisement complained of in the third, fourth and fifth causes of action, that at the time of the publication he had every reason to believe, and did believe they were true ; that the publication was made with good motives and for justifiable ends, and finally concludes by showing how in some particulars he was misled partly by the returns and statements and charter of the plaintiffs’ company, and partly by statements contained in the ninth annual report of the superintendent of the Insurance Department of this State, as printed by order of the legislature for the year 1868 ; that he is a policy-holder in the plaintiffs’ company since the year 1867 ; that said policy is on his own life in favor of his wife for the sum of $3,000, and that several years ago he induced other persons to insure in plaintiffs’ .company.

The defendant thus not only denies all the allegations of the plaintiff, so far as it may become necessary for him to deny them, but in addition thereto he presents facts and circumstances which stand forth uncontradicted, and which, as the case stands before me, almost conclusively prove that no such malice or evil intent toward the plaintiff as has been charged against him ever existed in point of fact. The defendant shows that he made the statements complained of in the course of his business, believing them to be true, and that they contain no-libel, for a libel consists of a malicious publication.

After carefully sifting and duly weighing the evidence placed before me by both sides, I can come to no other conclusion, and I think the defendant is entitled to his discharge. If the rule in a case like the one before me were otherwise, no newspaper could give to the public statistical information relating to any corporation or company, without becoming involved in endless litigation; the slightest inaccuracy to which the ingenuity of counsel could attach an injurious meaning in the remotest degree, would be seized upon and used as the foundation for a long libel suit, and a portion of our press might thus be deterred, in order to escape the annoyance, trouble and expense in this respect, from giving to the public such general information concerning the organization, inside workings, operations and profits of large and wealthy corporations and companies relying for their support mostly upon popular favor, and the patronage of the working classes, which the people at large have a right to demand, and which they cannot very well receive through any other channel except a free, fearless and independent press.

The.order of arrest must be vacated with $10 costs.  