Thomas v. Rumsey

Thompson, J.

delivered the opinion of the court. This case comes before the court upon a plea puis darrein continuance. The declaration is upon a libel. The plea states, substantially, a prosecution and recovery against Henry Dodd, of 140 dollars and 92 cents, by the plaintiff, for the damages which he had sustained by the same identical writing and publishing, and causing *31 and procuring to be written and published the same identical libel, in the first and second counts of the declaration mentioned; and that the said damages have been paid to and received by the plaintiff, in satisfaction and discharge of the judgment so recovered against the said Henry Dodd.

No direct adjudication is to be found in the books, upon the question here presented. But it strikes me as highly just and reasonable, that the defence set up by this plea should prevail. The plea shows a joint publication by the defendant and Henry Dodd: and although the plaintiff might proceed against them separately, yet the case is very analogous to that of joint trespassers, where, although the party elects to proceed separately, he shall still have but one satisfaction from them all. (1 Johns. Rep. 290.) If the plaintiff had not accepted the damages recovered against Dodd, he might, perhaps, have proceeded to judgment against the present defendant, and then have elected de meliori bus damnis.

The issue tendered by this plea is, that the present action is for the same identical cause of action, for which the recovery and satisfaction were had against Dodd; and if that be not so, the defendant would fail upon the trial of that issue. Although the libel be the same, yet a different publication would give another cause of action. The demurrer, however, admits the libel and publication in the present action to be the same as in the action against Dodd. We are, therefore, to take it for granted, that there was but one publication, and that the joint act of the defendant and Dodd.

There is, then, but a single injury; and if the plaintiff could have maintained a joint action, it would be unjust that he should have a double satisfaction.

I can see no objection against maintaining a joint action against several libellers. A joint indictment will be supported., This was settled, on argument, in the case *32 of The King v. Renfield and Saunders, (2 Burr. 985.) It was there held, that several defendants might be joined in one and the same indictment, or information for a libel, if the offence wholly arises from such a joint act as is criminal in itself, without any regard to any particular personal default of the defendant, which is peculiar to himself.

It is not like the case of perjury, where the perjury of one is not the perjury of another, but the perjury is a separate act in each. But where several persons join in singing one and the same libellous song, it is an entire offence, and one joint act done by them all. The case of Maitland and others v. Goldney and another, (2 East, 426.) was a civil action,, brought against two jointly, and no objection appears to have been made on that ground ¡ and from the opposition made, it is fairly to be intended, than if such an objection could have been supported it would have been taken.

The making and publishing a libel are matters susceptible of a joint concern and undertaking, as much as a trespass, or falsely and maliciously procuring another to be indicted. (2 Saund. 117. a. note.)

This is not like an action against several persons for speaking the same words. Such an action cannot be maintained, because the words of one are not the words of another. But with respect to libels, if one repeat and another write, and a third approve what is written, they are all makers of the libel, for all persons who concur, and show their assent or approbation to the doing of an unlawful act, are guilty j and in this respect the murdering a man’s reputation, by a scandalous libel, has been compared to murdering his person; where all who are assisting and encouraging in the act, are guilty of homicide, though the stroke be given bf one only. (5 Mod. 177.)

*33 The merits of this case, then, are clearly with the . - , defendant) and the objections of form* stated m the special demurrer, are of no weight, ■

The allegation in the plea of a partnership, between the defendant and Henry Dodd, is immaterial, and cannot be considered a substantial allegation, tendering a distinct and material issue; it is added only, in maintenance and support of the matter set up in bar, to wit, a joint publication with Dodd, and satisfaction made to the plaintiff therefor. Although the plea contains many parts, yet it forms but one connected proposition, leading to one point, and which requires but one answer. (5 Com. Dig. tit. Pleader, E. 2.)

This plea, like every other plea of a recovery and satisfaction, is mixed of matter of record with matter of fact; but this forms no difficulty, for the trial, in such case, may be by jury, equally as if the plea consisted entirely of matter of fact. The cases referred to in Lytle v. Lee and Ruggles, (5 Johns. Rep. 112.) fully support this position; and as to the venue, it follows the one laid in the declaration, for the whole matter of the plea, both as to the identity of the publication and the satisfaction, being to be tried by jury, the justification is not essentially local. The gist of the plea- is, that this is the same cause of action, arising at the same place, with that in the other cause, and for which the plaintiff has obtained satisfaction.

The plea does not mean to lay a different venue. It follows that of the declaration, and only refers to the record of satisfaction, remaining- in the office of the clerk of this court.

The venue in the plea is now perfectly immaterial. It may be omitted altogether, without being a defect of form. And unless the defendant specially justifies at á different place, and renders that place material, the court will not pay any regard to the venue in the plea, on the

*34 ground, that the place in the declaration draws to it the trial of every thing that is transitory. (2 Hen. Black. 161. 1 Saund. 8. a. 247. note 1. 2 Saund. 5. note 3.)

We are, accordingly, of opinion, that the. defendant is entitled to judgment.

Judgment for the defendant.