Royce v. Maloney

• Decision Date: 09 August 1886
• Citation: 58 Vt. 437,5 A. 395
• Parties: ROYCE v. MALONEY and others.
• Court: Vermont Supreme Court

5 A. 395

58 Vt. 437

ROYCE

v. MALONEY and others.¹

Supreme Court of Vermont.

August 9, 1886.

Exceptions from county court, Franklin county.

This was an action for libel. Declaration in two counts. Heard by the court, Walker, J., presiding, Franklin county court, September term, 1885, on general demurrer to the declaration. The declaration adjudged sufficient. Exceptions by defendants.

The first count in the declaration alleged that—

"The plaintiff * * * has at all times since the year 1870, down to the time of the committing of the several grievances, * * * been one of the judges of the supreme court of the state of Vermont, and one of the chancellors of the court of chancery of the state of Vermont, and from the month of January, A. D. 1882, has been the chief judge of said supreme court; and during all said time, from the year A. D. 1870 until the time of the committing, * * * has exercised and discharged all the duties pertaining to said office of judge, chief judge, and chancellor, and during all said time the said plaintiff has discharged the duties of said office of judge, chief judge, and chancellor honestly, faithfully, and impartially, and thereby received * * *. And whereas, also, the plaintiff hath not been guilty * * *. And the said plaintiff, by virtue of his said office of judge and chancellor, as aforesaid, has, at all the sessions of the county court and of the court of chancery within and for the county of Franklin, aforesaid, and the county of Grand Isle, in the state of Vermont, presided and held said courts as presiding judge or chancellor thereof, and at very many of the sessions of the supreme court in and for the various counties of the state of Vermont, has set and participated in the proceedings of said court as a judge of said court.

"And the said plaintiff avers that, during the greater part of or all of the time from the year 1870 to the time of the committing * * *, there has been a corporation chartered under and by virtue of the laws of Vermont, and located at, and having its principal place of business in, St. Albans, in the county of Franklin, aforesaid, called the Central Vermont Railroad Company, which corporation has operated an extensive line of railroad, passing through said county of Franklin; and said Central Vermont Railroad Company has had large interests involved in litigation in various suits pending in the said courts, in which this plaintiff has presided as judge, as aforesaid, in Franklin county, as aforesaid, and participated as judge of said supreme courts, as aforesaid.

"Yet the said defendants, * * * to-wit, on the fifth day of June, A. D. 1884, at Richford, in the county of Franklin, aforesaid, falsely, * * * in a certain newspaper called the Richford Gazette, of and concerning the said plaintiff, and of and concerning the said plaintiff as such judge and chancellor, as aforesaid, a certain false * * * libel, containing the false * * * matter following, of and concerning * * *; that is to say: 'It is quietly going the rounds in St. Albans railroad circles that Chief Justice Royce [meaning said plaintiff] will resign from the supreme bench [meaning from the supreme court of Vermont] during the summer, [meaning the summer of 1884,] and that he [meaning the said plaintiff] will form a law partnership with his son, and will attend to the extensive law business of the Central Vermont Railroad Company, [meaning the Central Vermont Railroad Company aforesaid.] It has been suspected for years that Mr. Royce [meaning the said plaintiff] was retained by the railroad company, [meaning the Central Vermont Railroad Company aforesaid.] Therefore this proposed open espousel of their cause [meaning said Central Vermont Railroad Company's cause] will not occasion much surprise;' meaning, and intending by said language to charge and insinuate of * * *, that the said plaintiff, while being and discharging his, the said plaintiff's, duties as such judge and chancellor of said courts of the state of Vermont, and while holding courts as aforesaid, and while so hearing, considering, and determining, as such judge and chancellor, causes pending in said courts, as aforesaid, and before the said plaintiff, as such judge and chancellor, as aforesaid, in which causes the said Central Vermont Railroad Company was a party litigant, was retained, employed, and paid by said Central Vermont Railroad Company as its attorney, legal adviser, and counselor, as aforesaid, in their said legal business, and in their litigation pending in said courts before the said plaintiff as such judge and chancellor as aforesaid; and further intending and meaning thereby to charge and insinuate that the said plaintiff, in consideration of being so retained, employed, and paid as an attorney, legal adviser, and counselor of said Central Vermont Railroad Company in said litigation, while so acting and holding court as judge and chancellor, as aforesaid, and determining causes in which said Central Vermont Railroad Company was a party, the said plaintiff, as such judge or chancellor, would so adjudge and decide such causes as to favor the interests of said Central Vermont Railroad Company; and also meaning and intending by said words to charge the said plaintiff with the crime of bribery in his said office of judge and chancellor. By means," etc.

The second count alleged, in substance, after the prefatory averments contained in the first count averred, that—

"The plaintiff has a son who is a lawyer, and practicing as such in said county for emoluments, and who has received compensation, in money and otherwise, for his services in such practice; that plaintiff never has had any interest in the law business of his said son, or in the emoluments of the same, nor any partnership relation with said son; that the defendant, knowing the premises, and falsely, * * * for the purpose of exposing plaintiff to the punishment of bribery, and causing it to be believed that he was guilty of bribery, * * * published of and concerning the plaintiff, and of and concerning him in the office of judge and chancellor, * * * the following libel: What the Gazette wants to know: when Judge Royce and his son will dissolve partnership;' thereby meaning that plaintiff, while judge and holding such courts, was in copartnership with his son in law business done by said son in said cause pending in said court; that plaintiff was receiving emoluments as counsel from one of the parties to suits pending in said courts while he was holding said courts, and hearing and determining these causes as judge and chancellor; that plaintiff was corruptly accepting money, etc., from one of the parties to said causes while he was holding said office of judge and chancellor of said courts, with the understanding that he should be influenced thereby in his official action in deciding said causes as judge or chancellor."

Cross & Start, for plaintiff.

The words set forth in the first count are clearly libelous per se, when spoken of a judge who is holding court and deciding therein causes in which the Central Vermont Railroad Company is a party. The clear insinuation or charge is, as it would naturally be understood by parties entirely ignorant of the facts who read the libel, that, inasmuch as the judge, while deciding the causes of the railroad company in his court, was in fact their retained attorney, his proposed assumption openly of the relations would not occasion much surprise. This clearly imputes to the plaintiff a violation of section 692, R. L. It imputes to him gross misconduct as a judge, and such breach of the laws and misconduct in office as, if true, would subject him to impeachment before the senate, and conviction and punishment. The words also clearly impute a charge that the plaintiff, by reason of such retainer, had or would adjudge causes in which the railroad were parties, heard before him, so as to favor the interests of the railroad. What other imputation can be predicated upon a charge that a judge who is trying and deciding a case in court was already retained by one of the parties to the cause, in their extensive law business? A retainer by a lawyer implies that he will specially represent and care for the interests of his client in the litigation. The law imposes upon him an obligation to...