Lyle v. Clason — 1 Cai. 581

Majority

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Lyle against Clason.

Headnote

Sending a sealed libellous letter to the plaintiff himself] is not a ground for an action by him. Every letter sent is to be presumed to have been sent sealed. In an action for a libellous letter on the plaintiff] publication must be shown. Stating it to have been by means of its being sent to, and received by, the plaintiff, is bad, and as showing on the record itself] no publication, is good cause for arresting the judgment.

This was an action on the case for writing and publishing a libel.

The first count of the declaration, after alleging that the defendant “ wrote and published, or caused to be written and published," a certain libel, proceeded thus: “ Which same libel, in the form and manner of a letter subscribed by the said Isaac Clason, on the-day of-, was-wrong fully, falsely and maliciously sent, and caused to be sent, by the said Isaac Clason to the said Robert Lyle, at, &c. and the same was, by means of such sending thereof received and read by the said Robert Lyle, and thereby published by the said Isaac Clason.”

Judgment having gone by default, the plaintiff sued out and executed a writ of inquiry, on which the jury gave general damages.

Hopkins;

for the defendant, now moved in arrest of j udgment. The first count shows no cause of action. The introductory is to be connected with the latter part, and then the allegation of having wrote “ and published,” &e. is so explained as to show there was not any writing and publishing in legal contemplation. The manner in which the injury complained of was perpetrated, is always stated to have been in the hearing, or some other specific mode of communicating the libel, and of making it [*582] known. East. Ent. 13, Went. Plead, titles *SIander and Libels. 1 Com. Dig. tit. Action upon the

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Case, (G. 4.) Hall v. Hennesly, Cro. Eliz. 486. Kellan v. Manesby, Cro. Jac. 39. 3 Cro. 199.^[2] These cases all turn on the general principle, that the -gist of the action must be stated in express terms, for generals will not do. In assault and battery, prosecutions for conspiracy, &c. the same rule holds. The present action is for damages to compensate for an inj ury sustained in the opinion of others. If others knew not of the libel, no injury could have been sustained, Hicks's Case, Hob. 215. Poph. 139, S. C. Barrow; v. Lewellin, Hob. 62. Edwards and Wooten, 12 Rep. 35.

Harison and Hamilton, contra.

The second count states that the letter was sent to France open. A publication may therefore be presumed, especially, as by suffering the judgment to go by default, and an inquiry to be executed the defendant has acknowledged a cause of action. On this reason the latter part even of the first count may be rejected as surplusage, and' the first allegation of publishing held to be confessed. It is allowed that by the English law a verdict would have cured the objection: a question, however, may be made, whether the distinction between verdicts and defaults, established by the English code, is known to our jurisprudence. Our act of amendments and jeofails extends to judgments by confession, nil dicil and non sum informatus. Perhaps, then, it may be consistent with our principles to say that on a default the rule is the same. It is not law to say, the mode in which a libel is made known ought to appear on the declaration. That it was published is enough. So in assault and battery, that he assaulted and beat, without the addition of knives, stoves, &c. is well. Saying he published, is, therefore, saying the libel was made known. Besides, the suit itself shows it has been communicated. The expressing in the count that it was made known to others is super-

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6 nous. Bell v. Stone, 1 Bos. & Pull. 331.^[2] At all events, the second count states a possible publication to the person by whom, sent, and we are entitled to a venire de nova. But it is strange to say the letter was not published, when the very cases adduced, by the counsel for the defendant, show an indictment would have lain. The mere writing libellous words gives a right of action to the party [*583] against *whom they are written. On the execution of the writ of injury, the plaintiff might have abandoned his first count, and proceeded on the second; shis, therefore the court may now well intend to have been done.

Troup, in reply.

It is not pretended that after judgment by default, a motion in arrest of judgment may not be made. 2 Burr. 899. Collins v. Gibbs. See ante, 104, Callagan and others v. Hallet and Bowne, If a libel, or slanderous word reach only the ears or eyes of the person libelled or slandered, no action lies. If a man, after receiving a libellous letter, makes it known, he is the publisher, and volenti non fit injuria. To the authorities cited we may add Lake v. King, 1 Mod. 58. In addition .to this, there is no rule better established, than that where a declaration contains good and bad counts, and a general verdict is given, the judgment must be arrested; because .it is not known to which the verdict can be applied.

We agree with the counsel for the defendant, that the first count is to be considered, when taken together, as stating no other publication than the sending a letter sealed up from the one party to the other. A letter is always to be understood as sealed, unless otherwise expressed, and the law is too-well settled to be now shaken, 'that sending a letter is no publication on^[3] which to

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ground a private suit.^[2] The basis of the action is damages for the injury to character in the opinion of others. This cannot arise but from publication. A criminal prosecution for sending a libellous letter is not founded on publication, but on the inducement which it produceth to a breach of the peace.^[3] The provocation is the same in the breast of the party libelled, whether the libel be or be not published to the world. The first count, therefore, does not state a cause of action, and the damages being general, the judgment must be arrested, unless the plain-' tiff wishes for a writ of inquiry de nova, which he is entitled to, on payment of costs agreeable to the decision in the case of Hopkins v. Bedle. Ante, 347.

Judgment arrested nisi.

(a) (a) S. P. by Lord Kenyon, in Phillips v. Jansen, 2 Esp. Rep. 625. The contrary is, however, inadvertently stated by Williams, Serjeant, in note (2), to Lake v. King, 1 Saund. 132. But the cases cited do not bear out the position. In the first (Baldwin v. Elphinston, 2 Bl. Rep. 1037,) the court decided that “printing" was prima facie evidence of publishing; and “ causing to be printed " confirmed the fact of publication, because it called “in a third pen-son." The second was the case of a letter written to a third person, Weatherston v. Hawkins, I D. & E. 110, but not applicable to the principle for which adduced. While making this observation, I feel, from conscious inferiority, ashamed at writing, what may seem a criticism, on so truly learned an annotator. See also to the same effect Waistell v. Holman, 2 Hall, 172 .

(b) (b) This is the reason why a libel is a crime. Its falsity is not the offence,

Footnotes

(b) (b) Hicks's case, in Hob, 215. Poph. 139. S. C. Hob. 62. 12 Co. Ed *733 wards and Wooten, Cro. Eliz. 487. Phillips v. Jansen, 2 Esp. Rep. 625, per Kenyon, Ch. J.; S. P. Wms. n. (2). Lake v. King, 1 Saund. 132. 2 Bl. 1038, 1 D. & E. 110.