Skinner v. Powers

In an action for a libel, the publication in a newspaper of rumora is not justified by the fact, that such rumors existed } the fact may be given in evidence in mitigation, but not in justified* Hon. A charge in a libel is not justified by proof of misconduct of E similar character. The justification must be as broad as the charge and proof of the truth of one out of many charges, does not constitute a justification.

This was an action for a libel? tried at the Cayuga circuit in June, 1827, before the Hon. Samuel Nelson, one of the circuit judges. The declaration, after stating, by way of inducement, that at the time of the publication complained of, the plaintiff was agent of the state for escheated lands, to examine into titles, obtain testimony and superintend suits, for which he received a salary, and had the disbursement of large sums of money in the prosecution of such suits; that on the 15th March, 1825, a resolution was passed in the house of assembly, calling on the commissioners of the land-office for a report in relation to escheated lands, the agents employed, their compensation, the money expended by them, the number of suits brought, &c. &c. ; that in compliance with such resolution, a report was made, and that on the 6th April, 1825, another resolution was passed by the assembly, directing the comptroller to report the items of all the accounts theretofore rendered and allowed, and all the claims made upon the state by the agent employed, in relation to escheated lands; and that the comptroller made a report, setting forth the items—proceeded to set forth the libel, which commenced as follows : “ I shall now proceed to lay before the public the rumors and reports in circulation, relative to the accounts and conduct of Gershom Powers, (the agent for the escheated lands,) before the call was made for the items, and submit to the enlightened reader, to judge whether they were not sufficiently numerous to authorize the resolution, calling for Mr. P.’s accounts, in order, if he was innocent, to give him a chance to vindicate himself, and if guilty, to suffer the indignation of an injured people. First, that,” &c. (specifying one rumor, and particularizing, in like manner, five several other rumors which were in circulation, in relation to the plaintiff;) and by inuendoes, charged the defendant with intending, by the publication, to represent the plaintiff as having corruptly and fraudulently rendered accounts of monies as expended in the service of the state, which'"were not so expended, &c. . The defendant pleaded the general issue and a special plea, .in which he averred, 1. That such rumors and reports were in circulation as were set forth in the publication, specifying them in the plea ; 2. That certain facts set forth at large, corresponding with the rumors, were true; and 3. That the plaintiff in three particulars not mentioned in the publication, had charged the state with monies expended in the public service, whereas such monies were expended for his own ben-. efit. Replication, de injuria sua propria absque, &c.; conclud-. ing to the country, and adding a similiter. • The publication was produced in court, printed in a public journal or newspaper, and admitted by the defendant'. The plaintiff then proved that he was the-agent of the state -for es-cheated lands, at a salary of $1000 pel annum, and rested. The defendant produced the accounts of the plaintiff, as rendered to the commissioners of the land-office, and reported by the comptroller to-the legislature, and offered to prove, in justification of the publication, that previous to the last resolution of the- house of assembly, calling oh the comptroller, for the items of the plaintiff’s account, there were such rumors and reports in circulation, as those mentioned in the second plea; to the admission of which evidence in justification, the counsel for the plaintiff objected. The judge rejected the evidence, and the defendant excepted. In a subsequent stage of the cause, when the same evidence was offered in mitigation of damages, the counsel for the plaintiff admitted that there ■were such rumors. and reports in circulation as stated in the publication and plea. The defendant further offered to prove, in support of the third branch of his plea, that the plaintiff had hired, of one John Legg, a waggon and harness to visit his friends in Vermont; that he went the visit; that Legg was paid $20 for the use of the waggon and harness, and the amount charged to the state. And further, that the plaintiff paid one A. Gridley two several sums of $1 each, for drawing off his accounts against the state, and charged the same to the state ; (neither of which facts were charged in the publication.) The evidence was objected to, rejected, and the defendant excepted. The defendant then proved, that the plaintiff kept a horse at a livery stable, from September, 1822, to May, 1828, and the expense of his keeping was charged to the state; that whilst the horse was so kept, the plaintiff went twice or thrice to Albany in a stage, and charged the stage fare to the state. (One of the rumors specified in the publication, was, “ that large and extravagant charges were made against the state for horse shoeing, keeping, &c.”) The plaintiff proved by the late attorney general, and the present attorney general, commissioners of the land office, his fidelity as a public officer, and explained the transaction in relation to the horse, by shewing that the charges were at the ordinary rate, and that the horse was kept with the approbation of the commissioners of the land office. The judge charged the jury, that unless the defendant had substantiated each distinct charge contained in the libel, the plaintiff was entitled to a verdict; and that the proof of the truth of one of the charges in the libel, was insufficient to entitle the defendant to a verdict. The defendant excepted to the charge. The jury found for the plaintiff, with $300 damages.