Tillson v. Robbins.

ceedings against them; and, lastly, that if they were to be allowed, before public justice had been satisfied, to recover property of which they had been defrauded, or damages for injuries which they had suffered, through felonious acts, they would be indifferent to the vindication of public justice, and serious crimes might thereby go unpunished, to the great prejudice of the common weal. It may be observed, in passing, that the temptation presented to private persons, to refrain from setting the criminal law in motion, must have been much greater when the old law of forfeiture was in force, the statutory remedy by writ or order of restitution being in many cases inapplicable and insufficient. For the purpose of applying these reasons of public policy, it seems to be competent and proper for the court, if not obliged in all cases to stay proceedings, to consider the circumstances of each particular case, in order to determine whether it ought to interfere. Now the proceedings in the present case are taken, not for the benefit of the petitioners only — the persons immediately affected by the felonious acts in question- but for the benefit of all the creditors of the person alleged to have been guilty of them, and his property is not now liable to forfeiture to the Crown on conviction; and as the accused has removed himself beyond the jurisdiction of the court, there seems no ground whatever to fear that a failure of justice will arise in consequence of proceedings for securing the property of the absconding bankrupt, and dividing it among the creditors. The fact that the accused has left the colony is surely a material one; for although it may be true, as suggested by his counsel, that by the adoption of proper proceedings he might be traced and brought back within the jurisdiction to answer for their felonies, it seems quite as probable that such proceedings-necessarily attended with much expense and trouble—would fail, as that they would succeed. And if the decision of the matter is to depend on considerations of public policy, it is surely less detrimental to the interests of justice that civil proceedings should be taken to make the offender's property available for the benefit of his creditors, than that probably ineffectual and expensive proceedings should be adopted to procure his conviction, during the pendency of which his agents in the colony would have an opportunity of disposing of his property, so as to defeat the just claims, not only of the victims of his crimes, but of his other creditors, upon whom the law imposes no duty of a public kind. In a word, it seems to me that the court is not bound to interfere by stopping civil proceedings in every case of felony; that it ought not to do so, unless there is a probability of criminal justice being defeated through them; and that in this case there is no reason for believing that such will be the consequence."

TILLSON V. ROBBINS.

(68 Me. 295.)

Libel-when actionable.

There is a well-settled distinction between written or printed and mere verbal slander in respect to its actionable character. Much, which if spoken would not be actionable without averment of extrinsic acts or allegation and proof of special damage, when written or printed is in itself a substantial cause of action.

In a suit for libel in a newspaper, though no special damage is alleged, and no averment of such extrinsic facts as might be requisite to make the arti cle published import a charge of crime against the plaintiffs, the action is nevertheless maintainable if the published matter is such as, if believed, would naturally tend to expose the plaintiff to public hatred, contempt or ridicule, or deprive him of the benefits of public confidence and social intercourse.

Tillson v. Robbins.

The defendant published in a newspaper the following words: "The Hurri cane Vote. Again we have to chronicle most atrocious corruption, intimidation and fraud in the Hurricane island vote, for which Davis Tillson is without doubt responsible, as he was last year." Held, that the publication was actionable without extrinsic averments to communicate its precise import, and without any allegation of special damage.

0

exceptions by the defendant to the overruling of his demurrer to the declaration.

66

Libel, in two counts, for words printed in a newspaper, the Rockland Opinion, September 15, 1876. The first count declares for a libel against the plaintiff as an individual, in these words: Hurricane Vote. Again we have to chronicle most atrocious corruption, intimidation and fraud in the Hurricane island vote, for which Davis Tillson is without doubt responsible, as he was last year."

The second count declares for a "libel of and concerning the plaintiff in his business" of merchant and contractor in the same words with these added: "Hurricane island is all owned by Davis Tillson, an intense partisan and unscrupulous politician. It is leased to government and contains quarries from which is taken granite for public buildings. This granite is bought by government of Tillson, and is there cut by men who receive about $3.50 per day. On all expenditures Tillson has a gratuity of 15 per cent, for which he renders no equivalent, unless the lease of the island and its facilities be deemed such."

The declaration, omitting the first and formal part, alleges the publication in the "Rockland Opinion, containing therein the false, scandalous, defamatory and opprobrious matter following of and concerning the said Davis Tillson; that is to say," and proceeds as follows:

"The Hurricane Vote. Again we have to chronicle most atrocious corruption, intimidation and fraud in the Hurricane island vote [meaning the vote given at the election, September 11, 1876], for which Davis Tillson [meaning the plaintiff] is without doubt responsible, as he [meaning the plaintiff] was last year.' Meaning and intending thereby to say and convey to the public mind the impression that the said Davis Tillson had been proved guilty a year ago of the crime of corruption, intimidation and fraud, and further meaning and insinuating thereby that said Davis Tillson, before the time of writing and publishing of the said libel,

Tillson v. Robbins.

had been guilty of the base and atrocious crimes of corruption, intimidation and fraud, at the election, held on that island on the 11th day of September, A. D. 1876, in which the inhabitants of said island, in the town of Vinalhaven, gave their votes for a member of Congress, governor, a senator in the State legislature, county officers, and a representative to the legislature. And the said defendant thereafterward on the same day caused to be sent and delivered through the mail and otherwise the libel aforesaid," etc.

The second count is similar, in its innuendoes and in its want of averments and colloquium, to the first count.

The presiding justice overruled the defendant's demurrer to the declaration; and the defendant alleged exceptions.

A. P. Gould & J. E. Moore, for defendant. I. Unless the words set out as libellous are in themselves actionable without any reference to other matters, the declaration is bad. In such action there should be averment, colloquium and innuendo; averment, to make certain what is generally or doubtfully expressed; colloquium, to show that the words were in reference to the matter of the averment; innuendo, as explanatory of the subject-matter, sufficiently expressed before, and of such matter only. Sturtevant v. Root, 27 N. H. 69, 73; Van Vechten v. Hopkins, 5 Johns. 211, 219; Patterson v. Wilkinson, 55 Me. 42; Carter v. Andrews, 16 Pick. 1; York v. Johnson, 116 Mass. 482, 485, 486; Emery v. Prescott, 54 Me. 389, 392, and cases; Small v. Clewley, 60 Me. 262; Brown v. Brown, 14 id. 317; Snell v. Snow, 13 Metc. 278, 282.

The recital by way of innuendo that the defendant intended to charge the plaintiff with the crime of intimidating voters at a State or National election is nil, the declaration containing no averment of such election, nor that Hurricane island is a voting precinct, or within the jurisdiction of the United States.

Nor is there any colloquium that the words were used in reference to any such vote or election, if any had been averred.

The second count says the defendant did write and publish a certain "libel of and concerning the plaintiff, in his business aforesaid," but does not say that the words set out are of that character, but that the paper in which the libel was published "contained therein this false [etc.] matter, following," etc. It not being alleged that the words were spoken of and concerning the plaintiff's business, no innuendo can supply the defect. Clement v.

Tillson v. Robbins.

Fisher, 7 Barn. & Cress. 459; 14 E. C. L. 209; Barnes v. Trundy, 31 Me. 321, 323, 324; Bloss v. Tobey, 2 Pick. 320, 321.

If words are actionable by reason of special damage, such damage must be averred and proved as laid. Barnes v. Trundy, 31 Me. 321, 324.

Those in the

II. The words are not in themselves actionable. first count imply that the plaintiff was not guilty of corruption, intimidation and fraud, but that somebody else was, and that the plaintiff might have prevented it.

D. N. Mortland & O. P. Hicks, for plaintiff.

BARROWS, J. The defendant's criticisms upon the writ to which he has demurred would be pertinent if the case were one of mere verbal slander. But in respect to the supposed requirement that, in order to maintain an action for damages where no crime is imputed, special damage must be alleged and proved, a distinction has been long and uniformly maintained between mere words and written or printed slander. Holt's Law of Libel (1st Am. ed.), 218-223. Much, which if only spoken might be passed by as idle blackguardism, doing no discredit save to him who utters it, when invested with the dignity and malignity of print, is capable, by reason of its permanent character and wide dissemination, of inflicting serious injury.

The cases, ancient and modern, where this distinction has been regarded are numerous. A reference to a few of them will serve

all the purposes of a more elaborate discussion.

Lord HOLT says "scandalous matter is not necessary to make a libel. It is enough if the defendant induce an ill opinion to be had of the plaintiff, or to make him contemptible and ridiculous." Cropp v. Tilney, 3 Salk. 226.

Το say of a man "he is a dishonest man," is not actionable without special damage alleged and proved; but to publish so, or to put it upon posts, is actionable. Austin v. Culpepper, Skin. 124.

In Villers v. Monsley, 2 Wils. 403, the court say: "There is a distinction between libels and words; a libel is punishable both criminally and by action, when speaking the words would not be punishable either way. For speaking of the words, rogue and rascal of any one an action will not lie; but if those words were written and published of any one an action will lie. If one man

Tillson v. Robbins.

should say of another that he has the itch, without more, an action would not lie; but if he should write those words of another and publish them maliciously, as in the present case, no doubt but the action well lies."

In another case, where the defendant had applied the epithet "villain to the plaintiff, in a letter to a third person, and the plaintiff, though alleging, failed to prove any special damage, the court ordered judgment for the plaintiff, expressing the opinion that "any words written and published, throwing contumely on the party, are actionable." Bell v. Stone, 1 Bos. & Pul. 331.

In one of Christian's notes to Blackstone mention is made of a case where a young lady recovered £4,000 damages for reflections upon her chastity published in a newspaper, though she could not under English laws, without alleging special damage, such as loss of marriage or the like, have maintained an action for verbal slander containing the grossest aspersions upon her honor.

In Janson v. Stewart, it was held that to print of any person that he is a swindler is a libel and actionable; for it is not necessary, in order to maintain an action for libel, that the imputation should be one which, if spoken, would be actionable as a slander.

In Thorley v. Lord Kerry, 4 Taunt. 355, the words of the alleged libel as declared on were, "I pity the man (meaning the plaintiff) who can so far forget what is due to himself and others as, under the cloak of religion, to deal out envy, hatred, malice, uncharitableness and falsehood." MANSFIELD, Chief Justice of the Common Pleas, pronouncing judgment for the plaintiff in the Exchequer Chamber at Easter Term, 1812, while he declared himself personally disposed to repudiate the distinction between written and unwritten scandal, says: "I do not now recapitulate the cases, but we cannot, in opposition to them, venture to lay down. at this day that no action can be maintained for any words written, for which an action could not be maintained if spoken."

For later English cases maintaining the same doctrine see McGregor v. Thwaites, 3 Barn. & Cress. 24; E. C. L. R., vol. 10; Clement v. Chivis, 9 Barn. & Cress. 172; E. C. L. R., vol. 17; Woodard v. Dowsing, 2 Man. & R. 74; E. C. L. R., vol. 17; Shipley v. Todhunter, 7 Car. & P. 680; E. C. L. R., vol. 32, p. 690; Parmiter v. Coupland, 6 M. & W. 105.

The American cases on this point follow in the same line with the English. Runkle v. Meyer, 3 Yeates, 518; McCorkle v. Binns,