Robins agt. McClure. I cannot add anything to the elaborate opinion of the learned justice, and concurring as I do in the views which he therein expressed, I shall hold that the husband in this case is entitled to that portion of his wife's estate bequeathed by her will to her brother Wright Robins, such bequest having lapsed by his death before the death of the testatrix. On the argument the learned counsel for the plaintiff referred me to the case of Kearney agt. Missionary Society of St. Paul, the Apostle (reported in 10 Abb. N. C., at page 274), which was also decided by Mr. justice VAN VORST, and claimed that the decision in the latter case was antagonistic to the decision in Fry agt. Smith. The learned justice refers to that case in his opinion in the case of Fry agt. Smith, and states as follows: "That case differs essentially from the present one in its facts. I do not think that it upholds the plaintiff's propositions, but if it announces doctrines in opposition to the conclusions reached in this ease, to that extent it cannot be followed." This is a clear indication that the learned justice did not consider the case of Kearney agt. Missionary Society as conflicting with his decision in the case of Fry agt. Smith. In this view I also concur, but if there were any doubt upon this point, deeming as I do that the decision in Fry agt. Smith is a correct exposition of the law upon this subject, I should feel bound to follow the latter case. For these reasons I am of the opinion that the defendant is entitled to judgment declaring that the title and ownership of the property bequeathed to Wright Robins, deceased, by the will of Caroline McClure, belongs to the defendant as the husband of said testatrix; that the house and lot No. 360 West Thirty-third street belongs absolutely in fee simple to the defendant; and that after paying the other legacies named in the will, all the rest, residue and remainder of the testatrix's estate belongs to the defendant. Hart agt. Townsend. SUPREME COURT. JOSEPH HART agt. GEORGE ALFRED TOWNSEND. Libel-Matter which is defamatory - Evidence - Newspapers - Justification that the words are true-Qualifiedly privileged cases — Correspondent of newspaper — Proof of malice required — Damages — Question for jury. In an action of libel brought by plaintiff, the publisher of a newspaper in the city of New York called "Truth," against defendant, who was a regular correspondent of the "Cincinnati Enquirer." The complaint was that he, defendant, wrote and published concerning him and the newspaper the following matter: "The newspaper 'Truth' is alleged to have been started for the purposes of plunder: " Held, first, that the matter is in itself defamatory, and unless its publication was justified it is actionable. Second. The motive which inspired the foundation of a newspaper can be well shown by its own columns as they speak from day to day. Third. The official conduct of men in public life, and the fitness and claims of candidates for official station, are fair subjects for review and criticism in the public prints, and such honest criticism, although it be unfriendly and severe, can give no occasion for the suggestion that it proceeds from unworthy or indirect motives. An independent press may feel contrained under a sense of duty to discuss such matters at times with honest plainness, but assaults upon private persons and character are not shielded by the rule which allows publishers of newspapers to review, criticise and energetically oppose the public action of men in official station, or those who are seeking it. Fourth. If the words published by the defendant are true under the evidence then the defendant's justification is established, otherwise not. Fifth. If the work of this defendant in preparing and publishing this communication, including the matter complained of, was in good faith done, and in the honest belief that it was true in statement and comment, and without any indirect motive to injure the plaintiff or the newspaper in question, or ill-will toward him or it (and of this the jury are the judges), then it falls within the class of cases qualifiedly privileged and the defendant is entitled to the immunity from liability which such privilege confers, although the matter complained of be not true. But this privilege accorded to journalists and regular correspondents of the press in writing, and commenting upon current public affairs and matters is not to be abused by using it intemperately or recklessly as an instrument to injure individuals or substantial interests, through Hart agt. Townsend. statements or inferences maliciously made, justified neither by the facts nor the occasion. Every defamatory article in itself contains evidence of malice. Such malice the law implies, and that without any extrinsic proof; but where the conclusion is reached that the communication was qualifiedly privileged on account of the subject, the occasion and the duty, then proof of actual malice is required in order to justify a verdict. The amount of damages in actions of this character is within the control of the jury under all the facts and circumstances as detailed by the evidence. But when the action is not by the proprietors of a newspaper itself for injury to it, but by a plaintiff who claims to have been the starter, or one of the starters, of the paper, and one of the owners and publishers thereof, and that he has sustained damages by the publication of the article complained of, the damages sustained by the paper itself as such cannot be recovered by him, but only such as he has personally sustained by reason of his connection with the paper in the relations above mentioned. N. Y. Circuit, February, 1834. THIS was an action of libel tried before judge VAN VORST and a jury, at a circuit held in New York, February, 1884. The plaintiff, the publisher of a newspaper in the city of New York called "Truth," sued the defendant for an article written by him and published in the "Cincinnati Enquirer," which plaintiff claimed to be libelous. The defendant was a regular correspondent of the "Cincinnati Enquirer." The matter claimed to be libelous appears in the charge of the The plaintiff claimed $20,000 damages. The judge's charge is given below. court. Richard S. Newcombe, for plaintiff. John D. Townsend, for defendant. VAN VORST, J.- The plaintiff claims to have been one of the starters and the publisher of the newspaper called "Truth." His true relation to the paper appears by the evidence. His complaint against the defendant is that the defendant wrote and published concerning him and the newspaper "Truth" the folVOL. LXVII 12 Hart agt. Townsend. lowing matter: "The newspaper Truth' is alleged to have been started for the purposes of plunder." There is no occasion for me to explain these words. Their meaning is obvious. They speak for themselves. By this publication the plaintiff claims to have been damaged, and he seeks redress in this action. It is for you to determine whether or not the plaintiff is entitled to recover, and if so, the amount of his damage. The matter of which complaint is made is, in itself, defamatory, and, unless its publication was justified, actionable. The defendant admits that he published these words, and by his answer to the complaint, says that they were and are true, according to the true intent and meaning thereof. The question which you are called upon to consider and decide under this defense is were these words true? Was this newspaper, under the evidence detailed before you, started for the purpose of plunder? Evidence has been adduced before you as to the origin of this paper; by whom, and under what circumstances, means and auspices the enterprise was launched, and how it was afterwards conducted. Do they establish that the paper was started for the purposes indicated in the defendant's article? Was it to be used as an instrument of plunder? If it was, your verdict should be for the defendant. Whether a newspaper was originally started for the purpose of plunder, may be shown by its columns and its conduct. The principle upon which a man's life rests, and by which he is controlled, is shown by his general behavior. We have no other means of judging a man's motive than as it is expressed in his speech and action; and the motive which inspired the foundation of a newspaper, can be well shown by its own columns, as they speak from day to day. Much matter has been read to you from the newspaper in question. I do not propose to allude to these articles in detail. You will recall them at once. They relate to individuals, to men in public station as also to those in private life, to institutions and to matters of both public and private concern. Evidence has been given of personal interviews and Hart agt. Townsend. transactions between the managers and agents of this newspaper and individuals, and now the question is, does this evidence establish that this paper was started for the purpose imputed to it by the defendant? The official conduct of men in public life, and the fitness and claims of candidates for official station are fair subjects for review and criticism in the public prints, and such honest criticism, although it be unfriendly and severe, can give no occasion for the suggestion that it proceeds from unworthy or indirect motives. An independent press may feel constrained, under a sense of duty, to discuss such matters at times with honest plainness, but assaults upon private persons and character are not shielded by the rule which allows publishers of newspapers to review, criticise and energetically oppose the public action of men in official station or those who are seeking it. You are carefully to consider the quality of these articles which have been read in your hearing from the newspaper "Truth," and you are to determine whether they establish the defense that this paper was started for the purposes of plunder. Yon should also determine whether or not the evidence of the dealings and transactions of the persons in charge of this paper with individuals or organizations, private or political, show such to have been the purposes of this paper. Much attention has been given in this connection, by the counsel, to the so-called "Morey letter," admitted upon this trial by all to have been a forgery. The manner in which this letter was received, its publication by the newspaper "Truth," the denial of its genuineness by General Garfield, and the afterconduct of the proprietors of the paper upon the subject, are all before you. I shall not allude to the various steps taken, nor to the action of these parties, in detail, in respect to this letter and its treatment by the newspaper in question. The evidence is all before you. You will, doubtless, recall and judge it; will determine its true character and what it establishes. You will decide what bearing this subject has upon the issue before you. Whether, on the one hand, the publi |