Royce v. Maloney
| Citation | 5 A. 395,58 Vt. 437 |
| Parties | HOMER E. ROYCE v. M. J. MALONEY & H. M. GOFF |
| Decision Date | 09 August 1886 |
| Court | United States State Supreme Court of Vermont |
[Copyrighted Material Omitted]
Action for libel. Heard on general demurrer to the declaration. September Term, 1885, WALKER, J., presiding. Demurrer overruled, and declaration adjudged sufficient. The declaration alleged, that the plaintiff was an honest citizen, etc., of good name, etc.; that the plaintiff in the year 1870, and biennially since the year 1870, down to the time of the committing by the defendants of the several grievances, was and has been by the legislature of the State of Vermont duly elected one of the judges of the Supreme Court of the State of Vermont, and has * * * 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 of the several grievances by the said defendants * * * 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 etc. * * * 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 sessions of the Supreme Court, in and for the various counties of the State of Vermont, has sat 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 the time from the year 1870 to the time of the committing of the several grievances by the said defendants as hereinafter mentioned, 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 aforesaid and participated as judge of said Supreme Courts as aforesaid. Yet the said defendants well knowing the premises but greatly envying, etc., to injure the said plaintiff in his said good name, etc., and to injure the said plaintiff in his said office of judge, chief judge, and chancellor, and to bring the said plaintiff both as a private citizen and in his said office into public scandal, etc., * * * to cause it to be suspected and believed by those neighbors and citizens that the said plaintiff had been and was guilty of the crime of bribery and of accepting bribes in his said office, etc., * * * on the 5th day of June, A. D. 1884, at Richford, in the county of Franklin aforesaid, falsely, wickedly, and maliciously did compose, print, and publish, and cause and procure to be composed, printed, and published in a certain newspaper, then and there at said Richford, printed and published by the defendants and 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, scandalous, malicious, and defamatory libel, containing the false, scandalous, malicious, defamatory, and libelous matter, following of and concerning the said plaintiff as such judge and chancellor, 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) "and his son" (meaning the son of the said plaintiff) "will form a law partnership 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 espousal 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 and concerning the said plaintiff in his said office of judge and chancellor, that the 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 so 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 counsellor 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 counsellor 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.
The second count alleged, after the prefatory averments contained in the first count, that the plaintiff has a son who is a lawyer, and has been for the last five years practicing his profession in said county of Franklin, etc., for profit; that plaintiff has never had any interest in the law business of his said son; that he has had no partnership relation with his said son; that defendant knowing the premises, to injure the plaintiff in said office * * * did at Richford aforesaid on the 10th day of April, A. D. 1884, unlawfully and maliciously, wickedly and scandalously compose, write, print, and publish, and did cause and procure to be composed, written, printed, and published in a certain public newspaper entitled the "Richford Gazette," a certain false, etc., which said scandalous libel is in the words following, that is to say: "What the Gazette" (meaning the defendants) "wants to know": "when Judge Royce" (meaning the said plaintiff) "and his son" (meaning said Stephen E. Royce) "will dissolve partnership." thereby meaning and charging that the said plaintiff while holding the said office of judge and chancellor and while presiding as judge and chancellor in said courts was in copartnership with his said son, Stephen E. Royce, in the law business professionally done by the said Stephen E. Royce in and about causes pending in said courts, and that the said plaintiff was receiving emoluments and compensation as counsel or solicitor from one of the parties to suits pending in said courts and at the same time as such judge or chancellor presiding in said courts in the trial of these same causes and hearing and deciding these same causes as such judge or chancellor, and that the plaintiff was corruptly accepting money or other emoluments and compensation from one of the parties to causes pending in said courts while the said plaintiff held the office of judge or chancellor of said courts, with the understanding that he, the said plaintiff, would be influenced thereby in his, the plaintiff's, official action in hearing, trying, and deciding the said causes or suits as judge or chancellor of the said courts.
Judgment affirmed and cause remanded.
Wilson & Hall, for the defendants.
The words set out are not actionable per se. If they can be made so, it must be on account of the facts set forth in the prefatory averments. The declaration is defective, because there is no allegation that the Central Vermont Railroad Company had any cause or causes in court in which it was a party and in which the plaintiff sat as judge or chancellor or rendered any decision. The averment is "and said Central Vermont Railroad Company has had large interests involved in litigation in various suits pending," etc. This averment falls short of an allegation, that said railroad company was a party to any suit or cause in Franklin County in which the plaintiff participated as judge. A person or corporation may have an interest in suits or litigations in which they are not parties and about which they cannot be subjected to any cost or expense. The declaration does not contain any averment as to the time when said railroad had any interests involved in litigation, and much less, that said railroad had any causes pending at the time of said publication or at the time when the plaintiff would resign his position on the bench. There is...
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