Rice v. Withers

By the Court,

The evidence of the reading of the libel at the breakfast table of the United States Hotel, and of the comments made upon it, was properly received. The handbills were published by the defendant with the avowed purpose of injuring the plaintiffs by deterring strangers from travelling in their coaches. The evidence merely proved the success of the defendant. The comments were bottomed upon the handbill which had the defendant’s signature, and was read in his hearing; by his silence, as well as by his publication, he assented to the course pursued by the reader of the handbill; and if the plaintiffs were injured by it, the defendant should be responsible.

The plaintiffs further offered to prove that persons unknown had both at Albany and Saratoga Springs put up the handbils in public houses, and otherwise deterred travellers from travelling in their coaches. This evidence was objected to, on the ground that the plaintiffs could not prove any special damage not specified in the declaration; but the judge received it, to shew the extent of the publication of the libel. -In this Í appprehend he was right. The defendant having procured the handbills to be printed, must be responsible for the circulation of them. The publication, under such circumstances, should be presumed to be done at his solicitation, and by his procurement, unless he prove the contrary.

The plaintiffs, further to prove the publication, gave in evidence a conversation of the defendant, on the 14th or 15th of August, 1828, and on the cross-examination of the witness it was testified that the defendant declared the facts stated in the handbill were true. Thereupon the defendant’s counsel insisted that the declarations of the defendant were conclusive evidence of the truth of the facts stated. The judge *141charged the jury that such declarations were not sufficient evidence of the truth of the allegations, and in this also he was right. If the law was as contended for by the defendant’s counsel, it must be applicable to verbal as well as written slander. In the case of verbal slander there is no way of proving it but by the declarations of the defendant; and if those declarations were proof of the facts asserted, every defendant could justify, and no recovery would be had against him. If the principle that the whole of a defendant’s declaration is to be taken together is applicable to a case like this, all the defendant could claim would be that his declarations at that time should be considered as neutralized, so that from the whole conversation no cause of action was made out. But the fact of publication had been already abundantly shewn; indeed was admitted upon the record, and the defendant was bound to prove the truth by testimony. On the whole, I am satisfied that a new trial should be denied.