Tyler v. Tillotson — 2 Hill & Den. 507

Majority

p. 507

Tyler vs. Tillotson.

Headnote

Where a declaration for a libel alleged that the plaintiff was the editor of a newspaper called the Ogdensburgh Times, and that the defendant published of and concerning him, as editor of the said paper, “ the following words: 1 We shall from time to time, &c. notwithstanding the denial of the ribald convict and recorded libeller who edits the Times,’ (meaning the plaintiff, the editor of the aforesaid newspaper, called the Ogdensburgh Times,)” &c.: Held, that the declaration was bad, as it contained no sufficient averment showing that the libel referred to and was intended to designate the plaintiff.

The office of an innuendo is to point to the introductory matter in the declaration, and give the meaning derivable from the averments there made; but it can neither add to nor enlarge the sense beyond what such averments will warrant.

p. 508

Demurrer to declaration for a libel. After the usual prefatory matter, the first count in the declaration alleged, that before the committing of the said several grievances, «fee. the plaintiff pursued the occupation and employment of editor of a certain newspaper printed and published in the village of Ogdensburgh, called the “ Ogdensburgh Times,” by which he acquired great gains, &c. and that the defendant well knowing the premises, «fee. did falsely, &c. print and publish, and cause to be printed and published in a certain other newspaper called the “ St. Lawrence Republican,” of and concerning the plaintiff, and of and concerning the plaintiff as editor of the said newspaper called the “ Ogdensburgh Times,” a certain false, scandalous, and malicious libel, containing, among other things, the false, <kc. words following, that is to say: “ We shall from time to time present some few extracts from Webster’s speeches, in which, notwithstanding the denial of the ribald convict and recorded libeller who edits the 1 Times,’ (thereby meaning the said plaintiff, the editor of the aforesaid newspaper called the ‘ Ogdensburgh Times,’) will fasten,” <fcc.—meaning thereby to charge that the said plaintiff was a mean brutal wretch, a low basé libeller, «fee. The other counts were the same as the first, except in the meaning imputed to’ the libel by the different innuendos. The defendant interposed a special demurrer to the whole declaration, and the plaintiff joined in demurrer.

D. Cady, for the defendant.

J A. Spencer, for the plaintiff.

By the Court,

It seems to me that the plaintiff has not put upon the record sufficient matter to show that he was alluded to by the words used in the libel. They do not necessarily refer to the editor of the “ Ogdensburgh Times,” and the plaintiff should, therefore, have further shown by a proper averment, that the words, “ who edits the Times,” as used in the libel,

p. 509

referred to and were intended to designate the plaintiff, the editor of the “ Ogdensburgh Times.” As to the manner in which this averment should be made, see Miller v. Maxwell, ( 16 Wend. 1 ;) Croswell v. Weed, (25 id. 621;) Goldstein v. Foss, (4 Bingh. 489.) In the absence of such an averment, it does not necessarily appear upon the record that the plaintiff is the person alluded to in the publication; on the contrary, the declaration shows that he is not the editor of the “ Times,” but of a different paper.

It may well be, that the plaintiff is the person alluded to in the libel, and if this be so, by inserting proper averments in the declaration, he will probably be able to prove it to the satisfaction of a jury, from extraneous circumstances taken in connection with the character of the article itself. But the right of action must be certain and complete upon the record, and-hence it is indispensable that there be an averment of the kind already indicated. (2 Saund. Pl. & Ev. 794, and the cases cited supra.)

The innuendo cannot help the plaintiff out of the difficulty, as that can neither add to nor enlarge the sense, beyond what is warranted by the introductory matter. Its office is to point to such matter arid give the meaning derivable from the averments there made and nothing more.

I am therefore of opinion that the defendant is entitled to judgment, with leave to the plaintiff to amend on the usual terms.

Ordered accordingly.