HASKELL v. BAILEY. (Circuit Court of Appeals, Fourth Circuit. October 15, 1894.)
It is citizenship, and not the residence, of the party, that confers jurisdiction, and gives the right to sue in the federal courts.
2. LIBEL UNDER CODE VA. 1887,
An allegation that the words used are, "from their usual construction and common acceptance, construed as insults, and tend to violence an,d breach of the peace," in the language of the statute (Code Va. 1887. § 2897), makes the declaration one under the statute, though the words used are objectionable at common law. In an action under the statute for procuring the publication of a libel (Code Va. 1887, § 2897), articles printed in a newspaper published ill another state, detailing an alleged interview with defendant, are sible In evidence on testimony of defendant that he used substantially the words set out In the declaration in his conversation with one of the editors of the paper prior to their publication, where he never disavowed their authorship, and was careful to correct some criticisms therein. A finding that defendant caused the publication of libelous articles (Code Va. 1887, § 2897) will be sustained where it appears from his testimony as a witness for plaintiff that he uttered the words set out in the declaration in a conversatiou with one of the editors of the paper prior to their publication.
5. SAME-PLACE OF PUBLICATION.
It is not the place where the libelous article is printed, but the place where it is published and circulated. that makes the words actionable under Code Va. 1881, § 2891, making one who procured their publlcation liable therefor.
In an action for procuring the publication of libelous words (Code Va. 1881, § 2897) in newspaper articles, such articles are admissible In evidence after the use of the actionable words has been established, not only on the question of damages. but in connection with the· use of the words alleged as tending to show that the language was emplo)'ed by defendant prior to the publication.
In Error to the Circuit Court of the United States for the Western District of Virginia. This was an action by John C. Haskell against John M.Bailey for a libel under Code Va. 1887, § 2897, in procuring the publication of alleged libelous words in certain newspaper articles published in the Bristol Courier, a newspaper printed in the state of Tennessee, September 9, 1890, and June 5, 1891. Defendant demurred to the complaint on the ground that the cause of action did not accrue until after the institution of the action, and also on the ground that it did not allege that plaintiff was a resident of the western district of Virginia. A plea to the jurisdiction was also filed, alleging that at the time of issuing the writing plaintiff was· not a citizen of the state of Virginia, but was at the date thereof a citizen of the state of New York, and that defendant was at said date a citizen of the state of South Carolina. The court overruled the demurrer and plea in abatement, and the case proceeded to trial, and a verdict for plaintiff for $1,000 damages was rendered.
White &' Buchanan, for plaintiff in error. James A. Walker, for· defendant'ih error. BefoW§iMONTON, Circuit JuCfge, and'JACKSONatld HUGHES, ,. ,.' District Judges. question presetited in the record for consideration .is the rll.Hng of the court below on the ground·rof demurrer assigned by defendant October 30, 1891, as discloses tha;t new groU'fidsof demurrer were interposed on day of :May, 1893. .Jti,s'claimed under the first demurrer 'that the cause of until after the institution of this action." This position is met by the ,that it is not the first;·:five counls:in the declaration, as appears from the record. The"sttJnJl1ous li;n the case to cOIDIl1ende the suit the 21th ,first Mondayot,·September foUQw,ing, to ansWer the plaintiff's Call Be of ac· tion.' The declaration wQsfiledat September rules, 1891, which, under the statute of Virginia, was' the first Monda1:and was the 3dday.:(?,tthe lll.o'1l,t¥.. eacp.0p.eof but p1l."t>llcahon of the arbcles complained of. occurred in July; 1891... The demur:rertothe sixth comit wassustllined,'artd 'does' 'not require notice; The ground assigned for demurrer on May 12, 1893, was thatthe declaration 'i9i!l not that ",·al;l. relltdent of .district of, Virginia. ' pos,tion is thiltthe declaration avers the plaintiff to be a citizen of the western district of Virginia. It has been repeatedly held that it is the citizenship, that and gives a ,par:ty ,tlW .rigliit JO sue . national coU:pts.A person mat have a residence in one state .and be.a citizen of another, as is often the case. One ·S'<)situllted could not maintain an action in the lia'tioilal courts nponthe grt1U.nd of residence. To do so he from the defendant, and sue must be a citizen of a different 'either in the district in which he is a citizen orin tbe one in which the defendant is a citizen. For the reasons assigned we sustain :the ruling of the court below on the demurrer, and for the same reasons we must. hold that the objection to the filing of the plea in abatement to the jurisdiction of the court was well taken. 'Having noticed the grounds of error in connection with the demurrer, we will now consider t'hefirst grounds of error assigned. It will be observedthllt the plaintiff in error, in stating his assign, ments of error, does not refer to the two causes of error assigned in the record and just.disposedof, but we deem it proper to briefly notice and dispose of them. , The first assignment of error is that the demurrer to the declaration should have beeusustained,.becltuse.in each count there is libel andntbestatutory cause of action for combined a insulting words. We;cannQt conenI' in this position. Thepleader has alleged in· each, count of the, declaration that the words used are, "from their usual construction .and common acceptance, con-
HASXgLL ,t1. BAILEY.
strued as insults, and tend toyiolence and breach of the peace." He has employed in each co'unt oif the declaration the very terms of the statute,. which necessarily makes it a declaration under the statute. It does not follow that, because the words used were objectionable at common law, the action may not be sllstained under the statute. Such' we understand to be, the ruling ,of the supreme court of Virginia upon this statute. Chaffinv. Lynch, 83 Va. 106, 1 S. E. 803. In the second assignment of error it is alleged that the plaintiff was allowed to read in evidence two articles printed in a newspaper published at Bristol,Tenn., and that the court erred in allowing them to be read as evidence. The record discloses that the defendant was placed on, the witness stand, and admitted on nation that he usedsubstanrtially the words set out in thedecla· ration in his conversations with Mr. Slack, one of the editors of. the paper, prior to their publication. It does not clearly appear when he first made use of the' language, but we must conclude that it was before the beginning of the action, as Iioerror is complained of on that ground. It is claimed, however, that he denied the authorship pf the articles referred to in the Bristol paper, yet he never disavowed them, though he frequently saw them, and was careful to CQrrect sottle criticisms. made in them. It must be apparent that there was no occasion for him to correct any statement so made unless he was either the autbor. of the articles or authorized their pUblication. We think it sufficiently appears from the record that prior to these p'l1blicationsthedefendant below had uttered the words set out in the declaration, and that the utterance of the Iil;>elous words instigated the publication of the libelous articles. He had several conversations with the editor of the paper, and after the conversations the publication occurred. Under tbe statute he must be held responsible for having "caused tbe publication by another," otherwise. the object of the statute would be defeated. The acts and conversations were submitted to the jury for it to determine whether he caused the publication, and tbe verdict of the jury was tbat he did. In this connection: it is contended tbat there is no evidence before the jury that the words used were actionable in Tennessee. We think there is nothing in that position. If the publication is actionable under the statutes of Virginia, and the defendant below was the cause of the publication, he must be held responsible for all the consequences of the publication tbat arise out of its circulation in Virginia. It is not the place where thi:! libelous article is printed; but the' place where it is published and circulated that makes the words used actionable. The publications, however, were admissible upon another ground. After the use of the actionable words had been established, the admission of the articles in evidence was proper, not only on the question of damages, but in connection with the use of the words sued on as tending to show that the language was ettlployed' by the defendant prior to the publication., It follows, from what we have said, tbat the judgment of the 'court below must be affirmed, and it is so orderecL '
lI'EDERAL RJi)l'ORTER, vol.
PARSONS v. SLAUGHTER, City Treasurer.
(Circuit Court, E. D. 'Virginia. 'October 10, 1894.)
, ' ,
"OOtipons from bonds issued under Acts Va. March '80, 1871, and March , 28. lSl/9. bearing on their face the contract of the state that they should be receIved in payment of taxes, etc., are valid obligations of the state. for. taxel1 spd dUel1 tober, ',and when a taxpayer, in person or b,: agent, tenders such coupons In parment of taxes due by him, atilt keeps his tender g?od, he will be considered to have paid the taxes, and wlU be protected In person and property from any effort of the enforce the tI;Lx.
2. SAlttE\;-rSPIT AGAINST STAfflll OFFJOER.
tllat wheria ,state :officer co.mmits an overt. act, wrongful to the rights,and proPerty of a citizen, he takes the l'eSpOli\!iibUityof the act, andcarinot justify it by the autho'tity of the state,:.: 1I.,dercolor of,. an unconstitutionaJ Istatute; but the court will not iJ:ltel'pose to· compel· offlcer to do, an. act for the state which be made to do ,Ii she werei:luable.
Complainant alleged tbl.\t he. owned $50,000 of tax-reCeIvable coupons of't!le'state of Virginia; that the state refused to pay such coupons; thst:aU remedies for their collection had been taken away, so that theYr,couId 9nly be in payment of taxes; that he had contracted with, taxPayers' of to ,pay their. taxes, with his coupons, for which'they were to· pay him. ,"on delivery. 'of receipted tax bills; that he had tendered to defendant, the officer appointed to collect such taxes, thea.mount ,of the taxes in coupons, and demanded receipt of bills for same; defendant refused to accept the tender or recognize the validltyof the coupons, and thr,eatened to treat the taxpayers as delinquent; tllat by such refusal complainant would lose the benefit of similar contractS with taxpayers, which· they had been accustomed to make and would "cGntlnue to make but for such refusal, and prayed for an injunction . defendant, from refusing to accept such coupons. Held, thRtthe suit was in fact ,one to compel the state to perform its contrl(.Ct, fl.bd would not lie in.favor of R taxpayer, who had made a tender' dlcoupons; that complainant, whether regarded as agent of the taxPayers, as having sold the coupons at the time of ,the tender, or as owning alid in control of them until 'delivery of receip1;ed tax bills, was in, no ,bet1;er position,. and that the bill should be diltmissed.
the wrong>fUlrefusal of defendant tOl'eeognize the tender, he might
.. SAME-A,CTXQN...FOR DAlttAGES.
Itseems,llowever, that for any injUry suffered by complainant by
. recover damages in an action at law.
ure-r of the city of l'etersbqrg, Va., to cOmpel the acceptance of the
118uit by Edwin I'arsous against O. A. Slaughter, treas·
Par$()ns, a of the state 0f New, Yorl'Cl,,1iledhis biUL.Qf. c()IDplaint in this court, stating substantially,these facts':'Thatbe,lsthe.'.owner and holder, to the amount of $50,000, of.cQupona, .issue(bby,the state of Virginia by authority of "An act to provide for the funding and
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