Majority
p. 120Huff v. Bennett.
Headnote
In an action for a libel in publishing the proceedings of a court of justice, it is proper to submit to the jury, as a question of fact whether the defendant had made a true publication of such proceedings.It is not necessary to submit to the jury, the question whether the defendant had made a fair and impartial statement. For the purpose of determining as to the character of the alleged libel, it is sufficient if the publication be true.
The minutes of a judge, of the testimony given on a former trial, are not of themselves evidence. If the judge making them testify that they are correct, or that he has no doubt of their being so, they are admissible. But where the judge oannot testify that they are full and accurate, they cannot of themselves be regarded as evidence.
The proprietor of a newspaper is responsible for whatever appears in its columns; and in an action against him for a libel contained in his paper, it is not necessary to show that he knew of the publication, or authorized it.
Where a witness swears that he is a subscriber for a specified newspaper, and being shown several papers of the same name and date containing the alleged libels, testifies that the papers are in all- respects similar to those left at his office, that the articles contained in the papers produced are the same that he
p. 121July 8; July 15, 1850.
had read in the copies left at his office; this is sufficient proof of publication, without proving a loss of the papers originally left with the witness.
(Before Oaklet, Ch. J., and Campbell and Paine, J. J.)
This was an action for the publication of certain alleged libels in the New York Herald. The answer set up a justification. The cause was tried before his Honor the Chief Justice, and a jury, in December, 1849. On the trial, the defendant admitted that he was the proprietor and editor of the New York Herald, at the time of the publication of the alleged libels. The plaintiff next called as a witness George W. Stevens, who testified that he subscribed for the Herald and read it; that he subscribed for it in May, 1846, and had taken it ever since; that he paid the carrier at his office. Being shown a paper, the New York Herald of November 29th, 1848, he testified, that it was in all respects similar to the one left at his office. Being asked to look on the papers produced under the dates of December 2d, and November 29th, 1848, and say whether those papers were ever seen before by the witness, or papers like them, the counsel for the defendant objected to this question. The judge overruled the objection. The defendant took an exception. The witness answered he had. Q. What papers were those ? The witness answered, the New York Herald. The question was then asked the witness, where he saw those papers of the dates of November 29th and December 2d, 1848. The witness answered, at his law office, 27 Beekman-street, in the city of New York. He testified that the papers came from the publication office of the New York Herald; that he was a subscriber, and subscribed for the paper at the publication office, and the boy left those papers at his law office. The witness was then asked if he had read the article, “ The Illegal Bail Case of Recorder Scott,” and also the article “ Police Intelligence,” in the paper of the 29th of November, 1848; The witness testified, that he saw those articles and read them, and also the article headed “ A Hard Case,” under the date of December 1st, in the paper of the 2d of December, 1848. That those articles were in the papers left at the witness’s law office in Beekman-street.
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On cross-examination, this witness testified, that these papers are not the same that were left at his office.
The counsel for the plaintiff then offered to read in evidence the alleged libels, from the papers so shown to this witness. The counsel for the defendant objected to such reading of the first two papers, .on the grounds that no sufficient proof of the publication thereof, or connecting the defendant therewith, had been given on the part of the plaintiff, to entitle him to read the same to the jury. And as to the third paper, it was not in issue, and not admissible for any purpose. The judge' overruled the several objections taken to the reading of the first two papers, and to his decision thereon, the counsel for the defendant excepted. As to the third paper, the judge sustained the objection. The articles from the first two papers were then read in evidence as follows:
“The Illegal Bail Case of Recorder Scott. — r¥e give in our police intelligence to-day, a very full and authentic report of the facts in the history of the recent very extraordinary case of illegal bail, which was authorized by Recorder Scott, under the advice of counsel, one day last week. It will be seen .by this report, that as soon as notice was called to the subject in the public journals, the recorder took occasion to make a statement of the circumstances under which he accepted bail and permitted the prisoners to escape, in a manner which, however, by no means justifies so high an, officer as the recorder, or takes away all blame from him in the case, as it now stands. The judge of a high criminal court ought to have, to use an expressive but ordinary term, his law always 1 at his fingers’ ends;’ nor should he be under the necessity of taking legal advice, as well as a statement of facts, from counsel on any occasion. But certainly, one of the strangest things is, that Recorder Scott, at that particular juncture, should, under any circumstances, have forgotten the existence of the statute prescribing the legal proceedings in such cases; or that such an important and active principle of law should have been obliterated by the eloquence of learned counsel,, or any thing else, from the mind of so
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respected and independent a public functionary as Recorder Scott claims to be. The recorder, however, in giving an explanation, places the stress of the policy he pursued on the advice of the counsel engaged in the case. This counsel, it seems, is a person by the name of Huff, and who appeared to have officiated in this particular case, as legal adviser, not only of the two prisoners implicated, but also of his honor the recorder. Now, the question arises at once, who is this Mr. Huff, and how did he exercise such extensive functions as legal adviser, not only to the persons arrested, but also to the recorder himself, on the occasion of giving and taking illegal bail in this case ? On inquiry into the history of Mr. Huff, we find that that distinguished man has made a great deal of noise in the world on former occasions. His debut in life we have not ascertained; but his profession, for many years, was crier to the old marine court, in which Recorder Scott sat as one of the dispensers of justice. In that capacity, Mr. Huff has made considerable noise, strictly according to law, giving notice to the lawyers that the court was opened, and threatening the boys and loafers with punishment, unless they would keep still and quiet. On the accession of Mr. Scott to the recordership, by an appointment given to him through the influence of the late Governor Wright, and for the purpose, it is said, of making John Yan Burén attorney-general of the state, Mr. Huff transferred his talents and acquirements from the marine court to the court of sessions, where he was appointed to the responsible office of crier, which he filled with great honor and trust up to last winter. At that time he was admitted as a lawyer to practice in some of the courts, and therefore abandoned his highly responsible position of crier, and of keeping the loafers and boys quiet, for that of picking up cases about the Tombs, and managing the affairs of clients. Among other curious specimens of his legal learning and talent, we have the original of the following curious note addressed to a person named, and which we copy verbatim ei literatim ”
(Here followed a dunning letter, defectively expressed, and spelled erroneously.)
“ From this note it will be perceived that Mr. Huff, the legal
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adviser of Recorder Scott in the case of the Martins, pays no particular regard to the rules of Lindley Murray, either in spelling, grammar, or in punctuation. This, then, is the distinguished counsel, the eminent lawyer, on whom Recorder Scott rested in the emergency described by our report, when the two dressmakers or washerwomen, were called up to give bail in the case in question. We do not think it is necessary to add a single word on the character of this case, on the conduct of Recorder Scott, or on that of Mr. Huff, who appears to have been his principal legal adviser on that occasion. We are extremely sorry for the recorder. We have known him for nearly twenty-five years, and we have always _ esteemed him to be an honest, upright, intelligent, and learned man. We think, however, that there were some exhibitions, during the recent election, which resulted in such a tremendous majority against Recorder Scott, and in favor of Mr. Tallmadge, .that will modify the opinion of any man in regard to the present reeorder. The people are good judges of recorders. We may, however, forget the violent and unprovoked attacks on the character of Mr. Tallmadge, nor pry narrowly into their source, provided Recorder Scott will be particular to present this case of illegal bail to the grand jury, side by side with the alleged illegal conduct of Sheriff Acker, on Blackwell’s Island, which took place a few days ago. We shall insist upon this course.”
“ Police Intelligence. — The Illegal Bail Case. — The Martins. — Some further proceedings have taken place in this extraordinary case. On Saturday last, Recorder Scott, it appears, ordered the re-arrest of the two prisoners for whom he took illegal bail on the Wednesday previous. Their counsel, Mr. Huff, instead of taking them before the magistrate who issued the warrant, conveyed them before the recorder in the court of sessions. Justice Lothrop informed the recorder that his proceedings were decidedly illegal, and in direct violation of the statute; and then left the court-room. After this interview, the counsel for the prisoner applied to Justice Lothrop, and asked him to come into the court of sessions and examine the prison
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ers, and take bail for tbeir appearance. Justice Lothrop informed bim that bis place of doing business was in the police court, and the prisoners must, therefore, be brought before him in the same manner as all other cases of the like nature. The counsel, finding there was no alternative, brought the prisoners before the magistrate in the police court, where they underwent the following examination according to law
“Court op Special Sessions. Before the recorder, and Aldermen Eranklin and Stevens. Dec. 1. — A Hard Case. — A respectable-looking woman, named Catherine Boyle, was this morning placed at the bar, charged with having stolen $14 from one Bridget Conway, of No. 67 Cherry-street. The accuser charged that the accused had snatched the money from her hand, and that it was all in gold coin. The appearance of the accused did not indicate a character that would stoop to such means for the improvement of her store of wealth, and she begged the court to allow her time to send for witnesses. She stated that she was a stranger in this city, and averred that she could show that her character was above any imputation of this kind. While the case was pending, Mr. Huff stepped up and informed one of the judges that the prisoner had been before the court before. As Mr. Huff was formerly a crier of this court, his word was taken, and the judges evidently thought, that, they had an old offender before them. At length the witnesses for the defence arrived, and gave evidence to prove that Mrs. Boyle was a respectable person, and possessed of money of her own; that she had a large amount of gold coin, similar to that alleged to have been taken from the complainant; and, last of all, the daughter of the accused was called 'to testify. She stated that her mother had only been in the country about six weeks, that she was on her way from Liverpool to New Orleans, and had paid her passage to the latter city. Mr. Huff again being appealed to, persisted in his declaration that the accused had been before the court before; and on this declaration being made, the court sentenced her to imprisonment in the city prison for the term of thirty days. On hearing her mother’s sentence, the
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daughter, a young girl, perhaps sixteen years of age, hastened to leave the room, but had only got outside the door, when she dropped perfectly insensible. The indignity cast upon her mother quite overcame her, and she found it impossible to bear up under the severe stroke. She was a stranger, the money found upon the person of her mother was claimed by the accusing party, (who resides at 67 Cherry-street,) and on conviction of the accused, given up to the officer for the benefit of Mrs. Conway. The mother thus bereft of means, the daughter was alike destitute, and had nowhere to look for necessary food, until some kind friends offered her their aid. On application to the female department of the city prison, it was found that Mrs. Boyle was an entire stranger there, none of the old officers ever recollected seeing her before, and Mr. Huff was the only man that could recollect her. It was evident, in fact, and proven by a careful investigation out of court, that Mr. Huff was mistaken, and if the court sentenced Mrs. Boyle to the city prison because Huff said ‘ she was up here before,’ they have done a great wrong to her. Quite a number of sympathizing friends clustered around the girl, outside the doors of the court-room. One gentleman of the bar offered his professional services gratuitously to see the matter set right. The girl, meantime, suffering under the severe dispensation of law, was unwilling to test it farther, and would rather that a false accuser should go unwhipped of justice, than to venture further in her experience of legal affairs.”
The plaintiff then proved his admission as an attorney of this court in 1844, and rested his cause.
The defendant introduced evidence on his part in support of the truth and fairness of the statements in the alleged libels. John B. Scott, formerly recorder of the city, was sworn as a witness, and testified for the plaintiff. He stated what took place on the trial of Catherine Boyle in the sessions, from his recollection.
In order to show that he had testified differently on this and other matters at the former trial of this cause, the counsel for
p. 127
the defendant called as a witness, Lewis H. Sandford, who testified that he was the presiding judge on the former trial of this cause; that John B. Scott was then sworn as a witness; that he, the witness, took notes of the testimony on that trial, but could not recollect of his own knowledge what Recorder .Scott testified to on that trial, except as he referred to his minutes; that he had those minutes present, and they were pretty full, but he would not say that they contained the testimony of Recorder Scott accurately; that he might have omitted things which the recorder testified to.
Hereupon the counsel for the defendant offered the minutes taken by Judge Sandford in evidence, and the counsel for the plaintiff objected to the same as illegal evidence. The court sustained the objection, and the defendant’s counsel excepted to this decision. The witness further testified, that he recollected that the recorder stated on the former trial, that he did not recollect much about the testimony given on the trial of Catherine Boyle, except what he had down in his minutes, and that these minutes were very short. The counsel for the defendant again insisted that the minutes of Judge Sandford were competent evidence to be read to the jury, but the court overruled such evidence, and excluded them altogether, except where the witness could testify to their correctness from his recollection. The pendant’s counsel excepted. The testimony on both sides was voluminous, but sufficient of it is stated to render intelligible the points decided.
The judge charged the jury, that where any proceeding takes place in a court of justice, or before a magistrate, in the regular administration of the law, and a publication thereof is made containing nothing but the truth of what did take place, the party making such publication will not be liable in an action for a libel; but if the publication contain matters which did not take place, and were not true, and were libellous, that the publisher is liable, and subject to an action. That in the present case, so far as the libel or publication in the New York Herald of the 2d- December contains a true aiid fair account of the judicial proceedings in relation to Catherine Boyle, the defend
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ant was protected. But if, from the whole evidence, the jury believed that the publication misrepresented the facts to the prejudice of the plaintiff, either to hold him up to contempt, or hatred, or ridicule, the defendant would be liable. That the defendant would also be justified in any comments on the conduct of the plaintiff, in connection with the same proceedings, if they were fair, and it was-a question of fact for the jury whether the defendant had made a true statement of the proceedings in court, and a fair criticism upon the acts and proceedings of the plaintiff on that; occasion. That in regard to the question of illegal bail, and the whole article headed “ Illegal Bail Case of Recorder Scott,” under the date of the 29th of November, 1848, the plaintiff’s counsel contended that the general scope of the article was censorious, so far as the matters therein related to him the plaintiff; that much of the language of it was ironical; that it intended to hold him up to ridicule, and to show that he was ignorant and unprincipled, and it was calculated to throw odium upon him, and to expose him to public hatred. If such were the character of the publication, it was no doubt libellous. That, if the jury came to the conclusion, from the whole evidence, that the plaintiff had knowingly deceived the recorder in regard to the bailing of the Martin girls, the defendant would be justified for the publication to this extent. That in regard to the letter, the jury would look at it, and the remarks concerning it, and if a true copy of it had been published, and if the remarks were no more than a fair criticism upon it, it would be a justification for the defendant in this particular. That in regard to the publication concerning the plaintiff, in respect to his being a' crier of the marine court, the defendant had offered no evidence to justify this part of it; that the office of crier in the marine court was a legal appointment, and the station was as respectable as that of any appointment of the kind .in any court; and the defendant had not shown but that the plaintiff had always conducted himself with official and personal propriety while he held that office. That the remarks contained in this part of the publication were to be considered by the jury, and if they thought that the plaintiff was held up
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to ridicule and odium, in regard to 'the office of crier .of the" marine court, the defendant would be liáble.- ■ And so in- regard to the charge of picking up cases about the Tombs, no evidence had been offered-by-the defendant-in 'regard to-this part of the publication which would seem-to justify the allegation.- • *
The defendant’s counsel excepted to the charge. The jury rendered a verdict for the plaintiff for one hundred and fifty dollars damages,'and six cents costs. ■
B. Galbraith, for the defendant.
A. Nash, for the plaintiff.-
By the Court.
In the' main, the charge of the judge upon the trial, as to the law of libel, -viras favorable to the defendant, and in accordance'with the -positions'assumed by his counsel: • ' - - '• •
There were, however, various exceptions taken which' are brought .forward upon the appeal. ' One'is, that the court -erred in charging that “ it was a question of fact for the jury whether the defendant had made, a true statement of the proceédíngs in court,” and that the question submitted to them-should have been, whether the- defendant had made á fair and impartial statement. As to this, any thing that is true is fair/
Another exception -was -taken- to the ruling of ¡the court'a's to the admissibility of the minutes of Judge Sandford, .before whom the case was formerly tried, which contained the testimony of Recorder .Scott, a witness examined upon that trial. It was contended upon the trial, as was also strongly urged upon the argument before us, that the minutes were of - themselves evidence. But we are not aware that they are ever regarded as such. If the party making them swear that they are correct,. or that he had no doubt of -their being so, in such a case, we think, they would be admissible. But where this is not the case, the minutes cannot, of themselves, be regarded as evidence. Such a rule of evidence would be manifestly -unsafe, . In this case, Judge Sandford was .-unwilling-so to .sw.ear-.-':- He-testified
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•that he had taken minutes upon the trial, as was his usual custom, but would not say that they were full or accurate; that he might have omitted things to which the witness Scott had testified. We think the ruling of-the court below, as to this point, ■clearly correct, and that the minutes were properly rejected.
Another question discussed upon the argument before us, related to the responsibility of the defendant for the publication of the libel. It was admitted upon the trial, that the defendant was the publisher of the Herald, but there was no evidence that he had actual personal knowledge of the publication of the article in question. This, however, was an immaterial point. The defendant, as the proprietor of the paper, was responsible for whatever appeared in its columns; and it was unnecessary to show that he knew of the publication, or authorized it. This point is well established.
. Another question related to the admissibility of the testimony as to the publication of the libel. The witness Stevens testified, that he was a subscriber for the Herald, and being shown the several papers containing the publications in question, testified that they were in all respects similar to those left at his office, and that he had read the articles contained in these papers, in the copies left at his office. It was contended that the testimony was inadmissible, until a loss of the papers originally left at Stevens’ office, and read by him, had been proved. We think the evidence properly admitted, but if not, the defendant clearly proved the fact of the publication in the course of his defence.
Motion for new trial denied.