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Albany, October, 1840.-Cooper v. Stone.

historian. The libellous matter set forth in this count is less extended and less loaded with epithets than the first. It is, however, sufficiently obvious. It charges the plaintiff with falsehood, an imputation which, when published in a written or printed form, has been holden libellous ever since Austin v. Culpeper was decided, in 35 Car. 2, Skin. 123. The case of King v. Lake, is there mentioned wherein it was adjudged that, to say of a man in a peti tion printed and published, that he is an unjust man, is slanderous, and an action lies; and the judgment in that case was affirmed on a writ of error. Skin. 124. By way of illustration, the court remarked, that merely to say of a man he is dishonest, is not actionable, yet to publish so, or put it upon the posts is actionable. Id.

Assuming the articles to be libellous in themselves, the only answer given on the argument was, that the plaintiff appearing by the declaration to be an author and the defendant an editor, and the libel treating of the plaintiff as an author, it is thus on the face of the declaration shown to be a publication absolutely privileged. To maintain this position, Carr v. Hood, 1 Campb. 354, note, was relied upon. That case was tried at nisi prius. The plaintiff complained that he had been personally slandered, under the pretence of reviewing his works; and it was put to the jury that if the criticism were fair and just, and reflected upon the plaintiff's character no farther than it was truly presented by his works, the defendant was justifiable even though he had ridiculed the plaintiff. It is unnecessary to pronounce whether that case may not have gone too far, because no one will pretend that the privilege of the press can warrantably be perverted to the purposes of wilfully and falsely assailing the character of any man. To say that he is an author, editor, or reviewer, is but saying that he is engaged in a profession which has been

and may be made eminently useful to mankind, and which would [*442] therefore seem to call for peculiar protection and encouragement.

That the law should allow his productions to be criticised with great freedom, is not denied. If he has made himself ridiculous by his writings, he may be ridiculed; if they show him to be vicious, his reviewer may say so. But the latter has no right, therefore, to violate the truth in either respect. The difficulty of sustaining this demurrer lies in its admitting that the plaintiff's moral character has been falsely and maliciously assailed by the defendant. This being imputed in the declaration, it behoved him to show that what he said was true, or at least that it was no more than a fair deduction from the plaintiff's works. The question is one of good faith. It is always so in case of the highest and most absolutely privileged communications. The claim of privilege can therefore be settled only by a jury. I do not speak of criticism upon the works of an author in the abstract; for this I admit no action can lie. Certainly not, unless the criticism be grossly false and work a special damage to the proprietor of the book at

Albany, October, 1840.-Cooper v. Stone.

which the strictures are levelled. The book cannot be plaintiff. I speak of attacks on the moral character of the author; and I will not stop to weigh the argument which would disfranchise him, because he happens to be an author.

This is, I believe, the first attempt to try the question of privilege by a demurrer to the declaration. Something was said on the argument, of the declaration failing to point and apply the imputed slander by proper explanations. This is never necessary where the words are plain in themselves. It is difficult to read the articles as set forth in the counts without seeing at once that they are direct and undisguised attacks upon the moral character of the plaintiff by name.

Judgment for plaintiff on demurrer, leave, &c.

JACKSON, ex dem. Genet and others vs. WOOD.

[*443 ]

Since as before, the revised statutes, a plaintiff in ejectment is entitled to recover mense profits Only for the period of six years; and now he is limited to that period, although the statute of limitations be not pleaded.

In ascertaining the mense profits or the rents of premises situate in the city of New-York, interest may be computed upon rents from the expiration of the quarter-days, instead of the expiration of the year.

MENSE profits in ejectment. In May term, 1835, the plaintiff recovered judgment in this court in an action of ejectment brought for the recovery of certain premises situate in the city of New-York, which judgment was affirmed in the court for the correction of errors on the 30th December, 1837, and the proceedings remitted to this court. The plaintiff thereupon made a suggestion upon the record that he claimed from the defendant $20,000, in which sum he alleged the defendant was indebted to him for the use and occupation of the premises specified in the first count of the declaration in ejectment, from 16th March, 1818, until 4th May, 1835, when the judg ment of this court was rendered, during all which time, the plaintiff alleged, the defendant enjoyed the mesne profits of the premises recovered, the value of which profits he alleged amounted to the said sum of $20,000, and then set forth a promise. The plaintiff also claimed $5000 for the use and occupation of the premises from 4th May, 1835, to 1st March, 1838, during which time he was delayed in having execution by the prosecution of the writ of error. Similar suggestions were made under other counts in the declaration in ejectment. The defendant pleaded non assumpsit to the sug gestions, and gave notice with his plea that on the trial of the cause he would prove that during his occupation of the premises he had made perma

Albany, October, 1840.-Jackson v. Wood.

nent improvements to an amount equal to the plaintiff's claim. The cause was heard by referees, who made a special report, that if the plaintiff was

entitled to recover mesne profits from 1st March, 1822, the day [*444] when the defendant went into possession of the "premises, the

sum due to the plaintiff was $13,800: but if the plaintiff was only entitled to recover for the period of six years next before the rendition of the judgment in this court in the action of ejectment, and for the period of two years and seven months thereafter, during the pendency of the writ of error, then the sum due to the plaintiff was $7,289,04. The referees also reported that they had computed interest upon the rents from the expiration of each quarter-day, and that if the court should be of opinion that the interest should be computed from the expiration of each year, and not from the expiration of each quarter-day, then the above sums should be reduced, in the one case to $13,509, and in the other to $7,159,04.

S. Stevens, for the plaintiff, on the coming in of the report, moved for judgment for the largest sum specified in the report.

J. Slosson and B. F. Butler, contra.

By the Court, NELSON, Ch. J. The important question in the case is, whether the plaintiff is entitled to recover for mesne profits beyond six years.

Before the revised statutes, it was well settled, that in the action of trespass, the claim could not be extended beyond that length of time before commencement of the suit. Bull. N. P. 568. Saund. Pl. and Ev. 668. 8 Wendell, 599. 13 Johns. R. 50. But it was necessary to plead the statute of limitations.

A suggestion upon the record of judgment in ejectment is now substituted in lieu of the action of trespass. 2 R. S. 236, § 44, 54. And it seem sreasonable to conclude, unless there is something in these provisions extending the time beyond which a recovery could formerly be had, that the old rule in this respect was not intended to be altered. The reasons for the limitation are as applicable to the new as to the old remedy. But we are not left to construction or conjecture as to the intention of the legislature; for the 50th section declares that the plaintiff shall not be enti[ *445] tled *to recover the rents and profits of the land recovered, for any longer term than six years.

It has been argued that this was intended to limit the right to mesne profits which had accrued previous to the commencement of the ejectment; that the suggestion is but a continuation of that suit, and therefore carries the claim, as of course, back to that period. This statute remedy is suppos

Albany, October, 1840.-Jackson v. Wood.

ed to be analogous to the one in the old action of ejectment, in which damages were recoverable. I see nothing in the provisions of the statute warranting this view. The principle contended for is entirely new in this state, and if the legislature had intended to engraft it upon our law, it is but reasonable to suppose, they would have distinctly put it forth. For a long time, perhaps soon after the plaintiff was allowed to recover the term in ejectment, it has been regarded as an action for the trial of the title only, and the damages were merely nominal. Selw. 510, 567. Van Alen v. Rogers, 1 Johns. Cas. 283. Bull. N. P. 88. 2 Bacon, 437. The case of Van Alen v. Rogers shews that as early as 1800, the action of ejectment was thus understood by this court. Very express provisions, therefore, might be expected, if it had been intended to revive this long exploded practice.

It is also apparent from the provisions preceding the 50th section, that the restriction was intended to limit the recovery to the six years. They prescribe the mode in which the issue shall be formed in pursuance of the suggestion, and the principles that shall govern the trial. The plaintiff is required to establish, and the defendant may controvert the time when he entered into possession, and during which he enjoyed the mesne profits, and the value thereof; he may set off permanent improvements, &c. The 50th section then follows, declaring the plaintiff shall not be entitled to recover the rents and profits for a longer term than six years, obviously enough referring to the whole time for which a recovery may be had in pursuance of these proceedings by suggestion.

But it is urged if this remedy be intended simply as a substi

tute for the action of trespass, then the plaintiff is entitled to [446 ] recover for the longest period in this particular case, because the statute of limitations has not been pleaded. This is true, unless the revised statutes have dispensed with the plea in respect to this proceeding. I am of opinion they have. The principle of the 50th section enters into and governs the remedy here given to the plaintiff; it is an express restriction upon him, and forms part of the system. He can no more go beyond it on an objection, than he can recover the mesne profits without complying with the requisites prescribed in the 48th section. The language of the general statute of limitations is altogether different; it refers to the time within which the respective actions shall be commenced. This declares the plaintiff shall not be entitled to the rents and profits for a longer term than six years; and if we may refer to the revisers' notes, the section was made thus explicit to avoid the necessity of pleading the statute.

As rents in the city of New-York, where these premises are situate, are payable at the usual quarter days, 1 R. S. 736, I think the referees, in ascertaining the value of the mesne profits, were warranted in adding to the annual rent, the interest quarterly. So much the plaintiff has lost, and the

Albany, October, 1840.-Jackson v. Wood.

defendant enjoyed, by means of the wrongful possession. The aggregate sum for the six years constitute the exact mesne profits upon the basis of the annual rents agreed upon. I think the plaintiff therefore entitled to judgment for $7289,04.

Judgment accordingly.

[*447 ]

*BUTLER vs. TUCKER.

Where one party enters into a contract for the doing of work, and binds himself that the whole shall be done and completed to the entire satisfaction of the other party and of third persons, in an action to recover the price stipulated to be paid for the work, it is necessary to aver in pleading that the work was done to the satisfaction of the arbiters designated in the contract; though it seems the plaintiff need not aver that the work was done to the satisfaction of the other party, and that in respect to that stipulation it would be enough to aver that the work was done pursuant to the contract.

DEMURRER to replication. The plaintiff declared in covenant on sealed articles of agreement, dated October 14, 1837, between the defendant of the first part and the plaintiff of the second part. The plaintiff covenanted to furnish all and singular the granite required for a certain building to be called the Leake and Watts Orphan Asylum, to be erected at Bloomingdale, in the 12th ward of the city of New-York, agreeable to the plans and the following specifications, to wit, &c. (giving the specifications,) the whole to be of the best quality of Connecticut granite, at least equal to the specimen shown to the building committee, and to be cut in the best manner, and to be delivered at the said building at Bloomingdale, and the whole to be done and completed to the entire satisfaction of the said first party and of the building committee, and to be furnished as fast as may be required by the defendant. For the true and faithful performance of all the covenants and agreements to be kept and performed by the plaintiff, the defendant on his part covenanted to pay the plaintiff ten thousand dollars, as follows, to wit, $1100, when all the ashlar to the top of the sill course is completed and delivered at the building; further sums were then mentioned to be paid at different stages in the progress of the building, concluding as follows: and $1600" when the whole is completed to the entire satisfaction of the said first party and the building committee as aforesaid.”

The plaintiff in his declaration averred that he had delivered [*448] at the building all the ashlar to the top of the sill course, and alleged for breach of the defendant's covenant that he he had not

paid the first instalment of $1100.

The defendant, after craving oyer and setting out the articles, pleaded in

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