White v. Nicholls
44 U.S. 266 (1845)

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U.S. Supreme Court

White v. Nicholls, 44 U.S. 3 How. 266 266 (1845)

White v. Nicholls

44 U.S. (3 How.) 266

Syllabus

In an action for a libel, it is not indispensable to use the word "maliciously" in the declaration. It is sufficient if words of equivalent power or import are used.

Every publication, either by writing, printing, or pictures, which charges upon or imputes to any person that which renders him liable to punishment or which is calculated to make him infamous or odious or ridiculous is prima facie a libel, and implies malice in the author and publisher towards the person concerning whom such publication is made.

Proof of malice cannot, in these cases, be required of the party complaining

Page 44 U. S. 267

beyond the proof of the publication itself; justification, excuse, or extenuation, if either can be shown, must proceed from the defendant.

Privileged communications are an exception, and the rule of evidence as to such cases is so far changed as to require of the plaintiff to bring home to the defendant the existence of malice as the true motive of his conduct. Privileged communications are of four kinds:

1. Wherever the author and publisher of the alleged slander acted in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interests.

2. Anything said or written by a master in giving the character of a servant who has been in his employment.

3. Words used in the course of a legal or judicial proceeding, however hard they may bear upon the party of whom they are used.

4. Publications duly made in the ordinary mode of Parliamentary proceedings, as a petition printed and delivered to the members of a committee appointed by the House of Commons to hear and examine grievances.

But in these cases, the only effect of the change of the rule is to remove the usual presumption of malice. It then becomes incumbent on the party complaining to show malice either by the construction of the spoken or written matter or by facts and circumstances connected with that matter, or with the situation of the parties, adequate to authorize the conclusion.

Proof of express malice, so given, will render the publication, petition, or proceeding, libelous. Falsehood and the absence of probable cause will amount to proof of malice.

The jury being the tribunal to determine whether this malice did or did not mark the publication, the alleged libel should be submitted to them, and the court below erred in withholding it.

The facts were these:

On 26 June, 1841, the following letter was addressed to the President of the United States:

"Georgetown, June 26, 1841"

"SIR: We feel it to be proper to put you in possession of the grounds upon which the removal of Mr. Robert White from the office of collector of customs of this port is requested. You will recollect the humiliating and prostrate condition of the people of this district about a year ago, when the majority then in Congress determined to destroy our banks as a punishment upon us for having avowed and published our preference for the candidates of the great whig party. It was in that dark season that Mr. White determined to desert his own fellow citizens and to join in the war which was making upon their liberties and interests. Being then seeking office, he thought to recommend himself to the executive by getting up a memorial here, which was to be used as a sanction or approval, on the part of our own citizens, of the mad policy which had been adopted by their oppressors. He then joined with an assemblage of forty-eight persons in getting up a memorial which none but themselves could be induced to sign. These memorialists, with about five exceptions, could not be identified by name or residence

Page 44 U. S. 268

as citizens of Georgetown. Upon investigation, they proved to be apprentices and journeymen holding a transient residence in the town. Being few in number, they were no doubt believed by Congress and persons at a distance to be a select body of experienced merchants and traders who had some knowledge of the subject of their memorial. A copy of the memorial has been deposited with the Secretary of the Treasury."

"It is perhaps one of the vilest calumnies ever issued by a band of thoughtless and irresponsible individuals, many of whom would have shrunk from such a proceeding had they the necessary intelligence to comprehend its enormity. But not so with Mr. White. He knew the paper contained an unmitigated slander. He seemed to be willing to blacken the character of those of his fellow citizens who had been entrusted with the charge of our banks if that would only secure an appointment when all other methods had failed him for the preceding twelve years."

"We revolt at the idea of Mr. White's being permitted to remain in an office whose emoluments flow from the labor and enterprise of the very men whose business and families he sought to involve in ruin."

"It is impossible that he can ever regain the confidence of men whom he abandoned and vilified in the darkest hour of their existence. His expulsion from office is no less demanded by his unpardonable conduct than by justice to the wounded feelings of an injured community."

"About the same time, June, 1840, with the persons under his influence, and as is believed at the request of an officeholder of great political rancor, Mr. White procured Dr. Duncan, then a member of Congress from Ohio, to deliver a speech here in abuse of General Harrison. The speech was perhaps the very vilest that was ever delivered by that gentleman."

"It was so satisfactory to Mr. White, who acted as vice-president on the occasion, that he immediately rose and moved the doctor a vote of thanks, and a request that the speech be furnished for publication. The resolutions which were adopted unanimously on the occasion, were nearly as calumnious as the speech itself."

"We refer you to the Globe newspaper of 3 July last for an official account of the proceedings of the meeting. We will only trouble you with a few sentences, that you may have some idea of the character of those extraordinary proceedings. They denounced General Harrison as 'the nominee of the bank whig Federalist, abolitionist and anti-masons,' 'an abolitionist of fraud and concealment,' as being guilty of pursuing a course 'grossly insulting to common sense, honesty, and decency, by shrouding himself in darkness,' 'of courting dangerous fanatics, and countenancing them [abolitionists] in their mad warfare upon our peace, our property,

Page 44 U. S. 269

and our lives,' and 'that he should be treated as an abolitionist.'"

"Mr. White's was the place where the leading men of his party nightly assembled up to the close of the presidential election, and a respectable citizen declares, that since Mr. White's appointment he circulated 'bushels' of the 'Globe.' He declines to give his formal evidence in the case upon the ground that he being a near neighbor of Mr. W., he is unwilling to disturb the friendly personal relations existing between them."

"Such was Mr. White's general political violence, and the unhesitancy with which he descended to the lowest means to secure the favor of the late administration, that no one doubted here but that he would be dismissed when the present party came into power, and no one can be more astonished than Mr. White is himself at his retention to the present time."

"We will also take this opportunity to state, that we desire Mr. H. Addison to be appointed to the office of collector in Mr. White's place, whose abundant testimonials and recommendations of our business citizens are already on file with the Secretary of the Treasury."

"With great respect, your obedient servants,"

"CHAS. C. FULTON"

"E. M. LINTHICUM"

"RAP. SEMMES"

"O. M. LINTHICUM"

"WM. ROBINSON"

"WM. S. NICHOLLS"

"PAUL STEVENS"

"P.S. It is further proper to state, that Mr. Addison's recommendations, filed with Mr. Ewing, are signed by every citizen in town, with a single exception, who have regular business to transact at the custom house."

On some other day, which was not stated in the record, the following letter was addressed to the Secretary of the Treasury.

"HON. THOMAS EWING"

"Secretary of the Treasury"

"SIR -- Earnestly requesting, as we now do, the immediate removal of Mr. Robt. White from the office of collector of this port, we feel it proper to state candidly our insuperable objections to his continuance in that office."

"At a time when a remorseless and vindictive majority in Congress were making a ruinous war upon all the business interests of the country, by destroying confidence in its banking institutions, and when that majority were pursuing a most persecuting and ruinous course towards the defenseless and unoffending people of this district, Mr. White, for the mere purpose of evidencing his unscrupulous

Page 44 U. S. 270

zeal in behalf of the late administration, and to secure its favor, did, under the most offensive circumstances, sign a violently abusive and insulting memorial to Congress, urging in the most decided manner the adoption of fatal measures toward the banks, by compelling them to continue specie payments, when all the institutions of Virginia and Maryland had suspended, and thereby to be compelled to pursue a destructive and burdensome policy towards their customers."

"The object of the memorial was to place something in the hands of our enemies, in the shape of an approval of their course, which was a gross deception."

"This offense becomes greatly aggravated, when it is known that Mr. White knew, so far as his acquaintance went with his co-signers, that they were too grossly ignorant of business and banking to be able to express any opinion upon such a subject. The other signers, with the exception of two or three, were so wholly unknown to our business community that Mr. White would not be able to identify their persons or designate their residences. It is to be taken for granted that they were merely transient laborers, or persons so young as not then to have attracted the notice of our oldest and most observing citizens; some of them, indeed, were known to be small apprentices. So offensive and unpopular was the whole proceeding that with the exception of perhaps two others (from whom our community would look for nothing better), Mr. White was the only respectable man of business who could be induced to put his name upon the paper. His own purpose could never have been detected, but for his appointment as collector, which so soon succeeded. Mr. White's experience in trade had taught him the indispensable necessity for banks in this district, and his intelligence and sense of justice were outraged by the declaration that our banks should be made to pay specie, when the banks of our neighboring states of Virginia and Maryland found it wholly impracticable so to do. He knew the gentlemen who had the management of our banks, directors as well as officers, and he knew they stood without reproach, and that it was wholly impossible that they could be influenced by the low and disreputable designs which his memorial so unscrupulously charged to them. It was a vile slander, put forth so as to evade the responsibility of a legal prosecution. We think he is the last man to hold an office, the value of which depends upon the enterprise and integrity of the very men whose families and business were alike to be overwhelmed with ruin at his special application."

"His removal from an office thus obtained would be doubly gratifying to us, when we know his family does not need its emoluments for support."

"It can be proved that at his store, in which the office of collector is kept, there were almost nightly assemblages of the principal party men who sustained the late administration, and particularly during the fall of 1840. "

Page 44 U. S. 271

"A highly respectable man has stated that, during the latter part of the late canvass, he saw Mr. White preparing immense numbers of the newspaper called the 'Washington Globe,' for circulation, but, being a neighbor of Mr. White, he is unwilling to appear as a witness against him. The language the gentleman used was that 'he had seen bushels of the Golbe so prepared, since his appointment as collector.'"

"Under these circumstances, we would most respectfully ask you to dismiss Mr. White from the office, and that our fellow townsman, Mr. Henry Addison, who has already been recommended by most of us, may be appointed to fill it."

"O. M. LINTHICUM"

"RAPHAEL SEMMES"

"WM. ROBINSON"

"E. M. LINTHICUM"

"PEREGRINE WARFIELD"

"ROBERT OULD"

"WM. JEWELL"

"WILLIAM LAIRD"

"WM. LANG"

"S.E. SCOTT"

"WM. HAYMAN"

"JOS. SMOOT"

"WM. S. NICHOLS"

"JAMES THOMAS"

"JEREMIAH ORME"

"T. P. WAUGH"

"EDW. S. WRIGHT"

"J. RILEY"

"W. S. RINGGOLD"

"J. I. STULL"

On the 19th of June, 1841, the following letter was addressed to the Secretary of the Treasury.

"Georgetown, June 19, 1841"

"SIR: About a year ago, the Hon. A. Duncan, of Ohio, was invited by a number of officeholders and others to hold a political meeting in this town."

"The meeting was held on 26 June, 1840, and the proceedings were published in the Globe, on or about 3 July."

"Mr. Robert White, our collector of customs, acted as one of the vice-presidents of the meeting, and who was so tickled and delighted with Duncan's vile calumnies upon Gen. Harrison, that he arose and made the motion that he (Duncan) would prepare the speech for publication. The address was said to be one of the vilest, and, if you desire it, a copy shall be presented for your perusal. The persons who moved the resolutions, and one of the secretaries, were clerks in the departments."

"We now hand you a copy of two of the resolutions, and an account of the proceedings, which we present separate, for your immediate and convenient notice, referring you at the same time to the very lengthy account to be found in the Globe of the date mentioned above."

"You will see that the copy now sent applies the following language to General Harrison: 'Nominee of the bank whigs, Federalists, abolitionists, and anti-masons.' 'Fraud and concealment' -- 'grossly insulting common sense, decency, and honesty, by shrouding himself in darkness' -- 'of courting dangerous fanatics, and

Page 44 U. S. 272

countenancing them in their mad warfare upon our peace, property, and lives.' 'He should be treated as an abolitionist.'"

"This conduct of Mr. White, in connection with his signature being placed to the infamous anti-bank memorial, which a delegation from town left in your hands when Mr. White's removal was first requested, renders him extremely offensive to the whigs here. We again would take the opportunity to remind you of our earnest hope that Mr. H. Addison will be appointed to that office, whose full and abundant testimonials are already in your possession."

"The continuance of Mr. White is mortifying to every real friend of the administration here."

"With respect, your obedient servants,"

"O. M. LINTHICUM"

"WILLIAM LAIRD"

"WM. S. NICHOLLS"

"Hon. T. EWING"

"Secretary of the Treasury"

On 21 September, 1841, the following letter was addressed to the President.

"Georgetown, Sept. 21, 1841"

"SIR: Should any paper be sent to you, contradicting in any manner a representation made by ourselves to the conduct of Mr. White, late collector of this port, we will thank you to let us have a copy of that paper, with the names appended thereto, that we may see in what particular, and to what extent, our statement may have been contradicted, and by whom."

"With great regard, we are, sir, your obedient servants,"

"O M LINTHICUM,"

"W ROBINSON,"

"WILLIAM LAIRD,"

"RAPH SEMMES,"

"WM S NICHOLLS,"

"D ENGLISH, JR"

"To His Excellency, JOHN TYLER, President U.S."

And upon 23 September, 1841, the following:

"Georgetown, September 23, 1841"

"SIR -- I feel bound to make to you this statement, in consequence of a report which has reached my ears, that Mr. Robert White, with Captain Carbery, and B. Mackall, are endeavoring, by their joint influence and representations, to injure me in your estimation. It is due no less to you than to my friends and myself to write you this letter, in which I shall omit everything that is not really necessary to be stated."

"As to Mr. White, I feel warranted in assuring you that the representations made to you by my friends in regard to him, are true throughout, of which fact they will be able to furnish you the

Page 44 U. S. 273

abundant evidence. No man of character here would hazard the intimation that these friends of mine would possibly descend to a misrepresentation in regard to Mr. White or anyone else."

"For all they have stated, they can produce a mass of evidence too strong to be doubted."

"In relation to Mr. Carbery, I have only to refer you to my letter to you of 23 August and its accompanying papers. I would take much pleasure in furnishing you with any further explanations in regard to that case that you might desire."

"It is wholly impossible that Mr. Mackall can have the least ground for complaint, as I can supply you with abundant proof that there was no employment here for him whatever, nor any prospect of need of his services at any time hereafter. All the labor performed by him, since I have been appointed to this office, was merely to sign a receipt for his pay. He, or his friends for him, appealed to the Secretary of the Treasury, and seemed to have succeeded in producing an impression on his mind that I was meditating an unjust proceeding towards Mr. Mackall -- all this, too, before I had said or written a word to Mr. Ewing upon the subject. He wrote me that Mr. Mackall must not be removed until I assigned him my reason for so doing. I obeyed his order, but, on the very day I wrote him that there was no service for Mr. Mackall to perform, Mr. Ewing instructed me to discontinue the office. Mr. Mackall still complained to the Secretary, who wrote me to come to the Treasury Department. I went, and after hearing my statement, he said he was then satisfied that he had done what was proper in the case. I did not feel at all hurt at the course taken by Mr. Ewing, because I knew that the whole matter had been grossly misrepresented to him. I had been waited upon by a friend, who earnestly remonstrated with me upon the subject of abolishing Mr. Mackall's office; as he said that, in that case, the influence of a powerful family connection would be immediately wielded against me. I did not exactly see the propriety of being governed by such apprehensions, and took the course prompted by my sense of duty, and relying confidently upon the favorable result of an impartial investigation, should any difficulty occur."

"There is but little revenue collected at this port, and I felt it to be my duty to conduct its business with as little expense as possible. I found the expense of this office, as far as Georgetown is concerned, to be $2,573.34."

"I have reduced these expenses to the sum of $1,045.00."

"Thus saving to the government, $1,428.34 without at all impairing the efficiency of the service. The whole expense of the office for Georgetown is now absolutely $45 a year less than Mr. Mackall was receiving for doing nothing. The expenses in Washington I have reduced twenty-five percent I did

Page 44 U. S. 274

this from a sense of duty, but not without anticipating much misrepresentation and abuse."

"I am, sir, with great regard, your obedient servant,"

"H. ADDISON"

"To the PRESIDENT"

On 18 November, 1841, Robert White brought the two suits mentioned in the titling of this statement.

The declaration in the suit against Nicholls and others contained two counts.

The first was as follows:

"And whereupon the said plaintiff, by Brent & Brent and Francis S. Key, his attorneys, complains, for that whereas previous to, and at the time of committing of the several grievances by the defendants as hereinafter mentioned, the plaintiff was collector of the customs for the district, and inspector of the revenue for the port of Georgetown in the District of Columbia; yet the defendants, well knowing the premises, but greatly envying the happy state and condition of the said plaintiff, and contriving, and wickedly and maliciously intending to injure the plaintiff in his good name, fame, and credit, and to bring him into public scandal, infamy, and disgrace, with and amongst all his neighbors, and other good and worthy citizens of the county aforesaid, and to cause the plaintiff to be removed from his said office, heretofore, to-wit, on 20 June, 1841, at Georgetown, to-wit, at the county aforesaid, falsely, wickedly, and maliciously did compose and publish, and caused to be composed and published, of and concerning the plaintiff, and of and concerning his aforesaid office, and of and concerning the plaintiff's conduct in his said office, for the purpose of procuring his removal from said office, a certain false, malicious, and defamatory libel, containing, amongst other things, the false, scandalous, malicious, defamatory, and libelous matter of and concerning the plaintiff, and of and concerning his aforesaid office, and of and concerning his said plaintiff's conduct in his said office, for the purpose of procuring the removal of the plaintiff from his said office, as follows, that is to say: [then followed a copy of the letter to the President of June 26, 1841, down to the words 'delivered by that gentleman,' with the necessary innuendoes]."

The second count was as follows:

"And whereas also the said defendants, intending and contriving to cause the plaintiff to be removed from the office then held by him, as stated in the first count heretofore, to-wit, on 26 June, 1841, at Georgetown, to-wit, at the county aforesaid, falsely, wickedly, and maliciously did compose and publish, and cause to be composed and published, of and concerning the plaintiff, and of and concerning his office, and of and concerning his conduct in his said office, and for the purpose of procuring his removal from his said office, a certain other false, malicious, and defamatory libel, containing, amongst other things, the following false, scandalous, malicious, defamatory, and libelous

Page 44 U. S. 275

matter of and concerning the plaintiff, and of and concerning his said office, and of and concerning his, said plaintiff's, conduct in his said office, and for the purpose of procuring the plaintiff's removal from his said office, that is to say: "

"Mr. White's was the place &c., [then followed the remainder of the letter not included in the first count]."

The declaration concluded as follows:

"By reason of publishing of which said several libels, the said plaintiff saith, that he hath been and is greatly injured in his good name, fame, and credit, with and amongst all his neighbors, friends, and acquaintance. And by reason of the publishing of which said several libels, the plaintiff saith that he was heretofore, to-wit, on 12 July, 1841, at the county aforesaid, removed from his office aforesaid, and was thereby deprived of the emoluments and income of said office, amounting to a large sum of money, to-wit, the sum of three thousand dollars annually, and hath been otherwise greatly injured, whereby the said plaintiff saith that he hath damage, and is the worse, to the value of twenty-five thousand dollars, and therefore he brings suit, and so forth."

"BRENT & BRENT, for plaintiff"

The declaration in the suit against Addison also contained two counts, with no essential variation from the above.

The defendants pleaded not guilty, and in November, 1842, the causes came on for trial. They were tried together, the same evidence and instructions prayed from the court being common to both. The jury, under the direction of the court, found a verdict of "not guilty," and the following bills of exceptions show the points of law which were raised and ruled.

"Plaintiff's 1st Bill of Exceptions"

"In the trial of these causes, the plaintiff, to support the issues on his part, offered evidence to show that he was duly appointed to the office set forth and described in the declaration, on 21 July, 1840; and that he was acting as such officer from that time till 9 July, 1841, when he was removed from office, and the defendant, Henry Addison, appointed in his place, and then further offered in evidence a written paper, viz., the letter to the President, and proved that the same was in the handwriting of the defendant Addison, and that the signatures thereto were in the handwriting, respectively, of the several defendants; that the said paper so written and subscribed was sent to the President of the United States, and by him sent to the Treasury Department, where it was filed on or before 30 June, 1841, and kept by a clerk of that department having charge of such papers, and shown on one occasion to one person by him -- which person had called to see it at the request of the plaintiff; and also on another occasion to another person. "

Page 44 U. S. 276

"And the plaintiff further offered evidence that one of the said defendants, whom he named, said, about the time of signing the said paper, and before the plaintiff was turned out of office, that the plaintiff had signed a memorial against the banks in the district, and swore that he would have him turned out of office."

"And also offered evidence that another of said defendants, also named, had on one occasion said, after the said paper had been sent to the President, that he had made no charges against the plaintiff, and on another occasion he stated he had made charges, and that he could prove against the plaintiff more than he had so charged."

"And the plaintiff further proved that the said paper, so written and subscribed, was shown to a citizen of Georgetown for the purpose of being subscribed by him, who refused so to do, because he was not acquainted with all the facts stated in said paper."

"And the plaintiff, upon the evidence aforesaid, offered thereupon to read the said paper to the jury; but the court refused to allow the said paper to be read in evidence to the jury."

"To which refusal of the court the plaintiff excepts, and prays the court to sign and seal this bill of exceptions, which is done accordingly, this 3 January, 1843."

"B. THRUSTON [SEAL]"

"JAS. S. MORSELL [SEAL]"

"Plaintiff's 2d Bill of Exceptions"

"And the plaintiff further offered, after the evidence aforesaid in former exceptions had been given, to show the malice of defendants in writing, signing, and presenting said paper, to read the said paper, and offered evidence in connection therewith of the falsehood of the charge therein stated, which the court also refused, and the plaintiff excepts to said refusal, and prays the court to sign and seal this bill of exceptions, which is done accordingly, this 3 January, 1843."

"B. THRUSTON [SEAL]"

"JAS. S. MORSELL [SEAL]"

"Plaintiff's 3d bill of Exceptions"

"And the plaintiff, after the evidence was offered, as stated in the first and second bills of exceptions, and after the opinion had been given by the court, as therein stated, then offered to prove by substantial evidence, for the purpose of showing malice in the defendants in writing, signing, and presenting the said paper, that the charge contained in the said paper, of the plaintiff's having lost the confidence of the men from whose labors and enterprise the emoluments of his office flowed, was false, malicious, and without probable cause; that all the persons doing business with the said plaintiff, as such officer in his said office, during all the time of his continuing in office, were General Walter Smith, Henry McPherson, John Hopkins, and Jabez Travers -- all which persons the plaintiff

Page 44 U. S. 277

now offers as witnesses to prove that the plaintiff had never lost their confidence, but that they always continued their confidence in the plaintiff, and approved of his conduct as such officer. And also, further to falsify the said charge, the plaintiff offers to prove that an election was held in Georgetown, in February, 1841 and 1842, for a common councilman in said town, in which election a majority of the qualified voters of said town voted for the plaintiff; and he was elected to the common council, notwithstanding the active opposition of several of the defendants."

"And the plaintiff, also, further offered to prove that the charges in the said paper of the plaintiff's having descended to the lowest means to secure the favor of the late administration, and that he procured Doctor Duncan to deliver a speech in Georgetown in the abuse of General Harrison; and that the plaintiff's was the place where the leading members of his party nightly assembled up to the close of the presidential election, and that the plaintiff, since his appointment to his said office, had distributed bushels of the Globe, were false, malicious, and without probable cause, by producing witnesses to falsify and disprove the said charges, and show that there was no foundation or probable cause for said charges."

"But the court was of opinion that such evidence was inadmissible, and refused to allow the same to be given in evidence to the jury; to which refusal the plaintiff by his counsel excepts, and prays the court to sign and seal this bill of exceptions, which is done accordingly, this 3 January, 1843."

"W. CRANCH [SEAL]"

"JAS. S. MORSELL [SEAL]"

"Plaintiff's 4th Bill of Exceptions"

"In the further trial of this cause, and after offering the evidence stated in the preceding bills of exceptions, and after the opinions and decisions of the court as therein stated, the plaintiff, by his counsel, in order to show express malice, and the want of all probable cause in the defendants, in writing, and subscribing, and presenting, as before stated, the paper -- writing set out in the declaration -- and that the same was so written, subscribed, and presented by such defendants, not for the purpose of claiming redress for a grievance in the conduct of a public officer, but maliciously, and from private pique and resentment, and in order that the said paper, with the evidence now to be offered, should go to the jury as evidence of malice on the part of the defendants by competent evidence, and the want of probable cause for the charges contained in said paper, and in connection with such evidence to offer the said paper in evidence to the jury."

"And the defendants, by their counsel, objected to said evidence, and thereupon, the court refused to allow the same to be given for the purpose above stated, or for any other purpose; to which the plaintiff,

Page 44 U. S. 278

by his counsel, excepts, and prays the court to sign and seal this bill of exceptions, which is done accordingly, this 5 January, 1843."

"Witness our hands and seals, this 5 January, 1843."

"B. THRUSTON [SEAL]"

"JAS. S. MORSELL [SEAL]"

"Plaintiff's 5th Bill of Exceptions"

"In the further trial of this cause, and after the evidence stated in the preceding bills of exceptions had been offered as stated, and after the opinions and rejections of evidence as herein stated, the plaintiff in support of the issues joined on his part, for the purpose of proving a publication of the libel charged in the declaration on the part of certain of defendants, whose names are signed to the papers, now offered in evidence the following papers (the several handwritings of the said defendants signing the same being admitted):"

"The letter to the Secretary of the Treasury;"

"The letter of June 19, 1841;"

"The letter of September 21, 1841;"

"by showing, from the said papers, that the said defendants had referred to and reasserted the truth of the charges contained in the said libel charged in the declaration, and that such reference and reassertion was not privileged, and was a publication of the libel, for which said defendants were responsible in this action."

"And in the case against Henry Addison, the plaintiff, for a like purpose, and to prove in the same way such a publication of the libel charged in the declaration as he was responsible for in this action, offered in evidence a paper, admitted to be in the handwriting of said defendant, Henry Addison, viz., the letter of September 23, 1841."

"And the defendants, by their counsel, objected to the admissibility of said papers so offered in evidence."

"And the court sustained the said objection, and refused to allow the said paper to be given in evidence, to which opinion and refusal the plaintiff, by his counsel, excepts and prays the court to sign and seal this bill of exceptions; which is done accordingly, this 5 January, 1843, as witness our hands and seals."

"W. CRANCH [SEAL]"

"JAS. S. MORSELL [SEAL]"

To review the decision of the court on these several points of law the present writ of error was brought.

Page 44 U. S. 284

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