Hagan v. Hendry

• Decision Date: 30 January 1862
• Citation: 18 Md. 177
• Parties: ADAM HAGAN v. CHARLES HENDRY.
• Court: Maryland Court of Appeals

18 Md. 177

ADAM HAGAN v. CHARLES HENDRY.

Court of Appeals of Maryland.

January 30, 1862

Where a ruling is made by the court, and the party against whom it is made submits to it, without reserving, at the time it was made, the right to except, he cannot be allowed to except thereto at any subsequent stage of the trial.

In an action for a libel, where the pleadings are framed under the Act of 1854, ch. 112, the plea, that the defendant did not commit the wrong alleged, is a direct traverse, and puts in issue the malicious printing and publication, and the defamatory sense of the libel complained of.

Such a plea, under this Act, is equivalent, or nearly so, to the general issue at common law, under which the defendant could give in evidence any matter tending to deny or disprove any material allegation of the plaintiff, as the publishing of the words, the malicious intent, or the injurious consequences resulting from the act complained of.

What the defendant said at the time of the publication of the libel, out of the presence of the plaintiff, in explanation of the sense in which the words were used, or as showing want of malice, or a just occasion or authorized motive, is not admissible under such a plea.

In an action for a written or printed libel, the defendant is responsible for the meaning of the words as understood by the readers of it, and any explanatory words or declarations of the defendant, which cannot be known to all the readers of the libel, are inadmissible.

It is an unbending rule of evidence, that a party to a suit cannot offer in evidence his own declarations.

Any publication injurious to the social character of another, and not shown to be true, or to have been justifiably made, is actionable as a false and malicious libel.

Every publication injurious to character, is in law false and malicious, until the presumption of falsehood is met by plea of the truth, or the presumption of malice is removed by showing a justifiable occasion or motive.

At common law, where the truth of the charge is designed to be given in evidence, there must be a plea of justification; but a just occasion, or an authorized motive, may be given in evidence under the general issue, or may be specially pleaded.

Assuming that the direct traverse under the Act of 1856, ch. 112, puts in issue all that the general issue at common law allowed, it is for the jury, if the evidence warrants it, to inquire whether a just occasion, or authorized motive existed, for the publication of the supposed libel.

It is error to grant an instruction upon any proposition, to sustain which there is no proof, and if there is any reasonable ground to suppose such an instruction had any influence upon the minds of the jury in making up their verdict, the judgment will be reversed.

APPEAL from the Circuit Court for Frederick County.

Action for a libel, brought November 18th, 1856, by the appellant against the appellee. The declaration in its first count charges, that the defendant falsely and maliciously caused to be printed in a newspaper called " The Examiner, " the following card:--" MESSRS SCHLEY & HALLER, Gentlemen: --It is with heartfelt regret that I have to say, that Mr. Adam Hagan, not content with publishing the certificate as I gave it, has added or caused to be added to it in a way calculated, in its nature, to ridicule me in the eyes of the public. What could have been his motive I am at a loss to say, as he might have accomplished every purpose that the certificate was calculated to accomplish, without being guilty of the principle of forgery, which, if I am so unfortunate as to be compelled, I think I will be able to prove, but I would do so with great reluctance on account of his venerable mother and his respectable relations.--CHARLES HENDRY; " --meaning thereby that the plaintiff had been guilty of the crime of forgery. The second count charges the publication in the same words, meaning thereby that the plaintiff had been guilty of the principle of forgery, that is to say, of the moral crime or offence of forgery, and intended thereby to bring the plaintiff into public infamy, ridicule, contempt and discredit. The defendant pleaded that, he did not commit the wrong alleged, on which plea issue was joined.

1 st Exception: The plaintiff proved by Baughman, that some days previous to the publication of the card complained of, the defendant called at his office and complained that a card published in " The Citizen, " (a newspaper of which witness was editor and publisher,) bearing defendant's signature, was injurious to him, and was not published as given to plaintiff by defendant; that the defendant was excited in his manner, and witness then took his paper and slowly read over the defendant's card as follows:--" URBANA, September 25th, 1856. This is to certify, that I am personally acquainted with Mr. Adam Hagan, and have always considered him a young man of sober and moral character. I also saw and talked with Mr. Hagan at the barbecue, and could not say he was intoxicated. He was excited, as I thought, from ill-treatment he thought he had received, but I know but little of the occurrence myself. CHARLES HENDRY, Member of the American Political Party, and Judge of the Urbana District Polls," --and asked him if it was right, to which he replied yes, as to all that part above his signature, but said the words immediately under his signature had been added, and of that he complained; witness then reasoned with him and said, it was evidently the intention of the addition merely to designate his position and standing, for the purpose of giving weight to his card in vindication of the plaintiff from the charge therein referred to, and after this conversation, defendant's manner altogether changed, and he left witness in a pleasant way. The plaintiff further proved by Schley, the editor and publisher of " The Examiner, " that at defendant's request he published the card complained of in his paper, which has a large circulation in this and other States. The plaintiff then offered to prove by this witness that his paper had a circulation in Kentucky, offering to follow up the same with proof that the plaintiff, at the time of the alleged libel, resided in that State, and was here on a temporary visit to his family and friends; to which evidence of the circulation of said paper in that State, the defendant objected, and the court, (NELSON, J.,) sustained the objection. No exception was reserved at the time of this decision, but afterwards, and after the witness had given further testimony, and another question as to the admissibility of his evidence had been subsequently raised, argued and decided by the court, and during the cross-examination of the same witness by defendant, the plaintiff excepted to said ruling of the court upon the evidence as it then stood, and prayed the court to sign and seal this exception, which the court refused to do upon the ground that it was too late, the exception not having been reserved at the time of the decision, nor until after other testimony had been given. To which decision of the court in regard to the admissibility of the evidence offered by the plaintiff as aforesaid, and the ruling of the court in regard to signing said exception, the plaintiff excepted.

2 nd Exception: After the evidence in the preceding exception, made part of this, the defendant, on cross-examination of said Schley, asked him to state the whole of what defendant said at the time he handed witness the card complained of, for publication, to which he replied, that when defendant brought him the card, witness took it and read it without saying any thing until he came to the words " principle of forgery," which he repeated aloud, when defendant said " yes, I went to the Citizen Office and could obtain no satisfaction; --you see I do not charge him with forgery, but don't you think he has been guilty of the principle of forgery?" The plaintiff was not present at this conversation. To which evidence of said Schley, on cross-examination, the plaintiff objected, but the court allowed it to go to the jury, and to this ruling the plaintiff excepted.

3 rd Exception: After the evidence in the preceding exceptions, made part of this, the said witness, Schley, in continuation of his testimony on cross-examination, and in response to the same question propounded to him, as stated in the preceding exception, and as a continuation of the conversation between witness and defendant, mentioned in said exception, proved that he told defendant in that conversation that forgery had a technical meaning, and that the allegation in his card did not come within the definition of forgery, or words to that effect, but that from the addition to the card published by the plaintiff in " The Citizen, " witness thought the plaintiff was guilty of the principle of forgery; that defendant then said that these words, to wit: " Member of the American Political Party, and Judge of the Urbana District Polls," were calculated to make him ridiculous, and witness remarked, " yes, at the time the paper appeared containing the card purporting to be writby you, I heard many persons in The Examiner Office speaking jeeringly of you, because of the words referred to; " defendant then added that he had not put these words there, and that the fact that they had been added to his name, rendering him ridiculous in the eyes of the public, made it necessary for him to publish his card, there was nothing else left for him to do in his vindication; that the first time witness saw defendant after the publication in " The Citizen, " bearing his signature, was, when he brought the card complained of for publication, as already stated, and that witness had not...