[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 29
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 30 I think that the judgment below was right. Admitting all the material allegations of fact in the complaint, as we must, a case was not made out.
There is no objection to the maintenance of the action in our courts in the fact that the plaintiff was an English subject, or that he was a non-resident. As a personal action, sounding in tort, it was transitory in its nature; following the person of the defendant. Our courts were open to the plaintiff for the redress of any personal injury, suffered by reason of the defendants' acts. (Story's Conflict of Laws, § 625; Wharton's Conflict of Laws, §§ 478, 707, 743; Gardner v. Thomas, 14 Johns. 134; De Witt v. Buchanan, 54 Barb. 31.)
The article was not libelous per se. To complain of an article as being libelous, because charging the complainant with taking part in a revolt, or rebellion, within the government of Brazil, is quite insufficient, in the absence of an allegation of the existence of some statute, making such an act a treasonable offense and prescribing pains, or penalties, for the commission of the crime. The court cannot assume that the laws of Brazil are similar to the common law upon the subject of treason to the State. That the plaintiff was an alien resident within the government of Brazil is not material, in considering his right of action; inasmuch as his alienage may not, probably would not, have been available as a defense. (See case of McLean, 26 How. State Trials, 747.) The difficulty is that the complaint does not allege what was the law of Brazil, with respect to the commission of the acts charged in the article, and the presumption that the common law is in force is only indulged in by our courts with reference *Page 33 to England and those states, which have taken the common law from England. (Savage v. O'Neil, 44 N.Y. 298.) Whatever relation the plaintiff may have had to the historical events happening in Brazil, their nature is not to be determined by the laws of the state of New York and, as Mr. Justice PATTERSON well observes, speaking for the Appellate Division, "to state in an article that a person, under such circumstances, was associated with a movement in a foreign country against the government of that country, or of some department or locality of it, does not, of necessity, accuse him of a crime." If the article had imputed to the plaintiff the commission of that which is an heinous offense against organized society, and commonly known to be recognized as such by civilized nations; if it charged him with some conduct, which reflected upon his character, in such wise as to expose him to contempt, ridicule, or disgrace, it would be libelous perse.
At first thought, it might not seem that to charge a person with being in sympathy with a revolution, or with abetting it, in a South American state, was to impute to him anything infamous, or disgraceful. It would, or might, occur to us that, historically, the state of political ferment and effervescence in South American governments has appeared to be, almost, continuous. Uprisings to throw off the yoke of the oppressor, or the intolerable burden of a corrupt administration, have been of frequent occurrence. If to say of a person resident, or native, of some one of the South American republics, that he had been concerned, or engaged, in a revolt against the constituted authorities, would be to impute to him conduct disgracing him in the eyes of the community, not many of the population might be free from reproach. But history teaches us that there, as elsewhere, there have been numerous instances of persons, whose leadership, or participation, in a revolt against the government, has exalted them in the public eye, because regarded as having devoted, or sacrificed, themselves in a heroic effort to right some great political wrong and to bring about a freer enjoyment of political rights, or a more moral administration of government. This plaintiff, *Page 34 personally, may have been motived by such high principles and yet his following, or the "crowd" associated with him, may have been sordidly interested. The article does not state that of him; however it does impute sordid interests to his "crowd." I do not think that to attach his name to the coterie, which surrounded him, was to impute to him their personal defects, or moral turpitude.
But it is argued that the words in the article, describing the plaintiff as "an Englishman of more or less indifferent repute," were libelous per se. If the complaint had alleged the libelous meaning by innuendo, to wit, that the words meant that the plaintiff's reputation, or character, was bad, that would have been so. As a mere statement, however, without innuendo, the language signifies nothing, except that the person spoken of had no particular "repute," one way or the other, or that he had but an ordinary reputation, or that he was too obscure to have gained any repute. Many persons, possessing excellent characteristics, might find themselves in that category.
The complaint, showing no publication actionable per se, is defective for alleging no special pecuniary damages. (Stone v.Cooper, 2 Den. 293, 299.) There are allegations to the effect that, by reason of the publication, the plaintiff was subjected to insult and annoyance and to arrest. That is not enough. When he alleges damage, it is generally and with reference to his business. The allegation is that, by reason of a search by the police and of the arrest of the plaintiff and of his partner, the "business of this plaintiff remained in the hands of mere clerks unacquainted with the management of said business, wherefore his business was damaged and greatly suffered irreparable loss." What, if any, pecuniary loss was occasioned thereby is not alleged.
I think that the complaint failed to state a cause of action and I advise the affirmance of the judgment, with costs.
PARKER, Ch. J., BARTLETT, VANN, CULLEN and WERNER, JJ. (and MARTIN, J., in result), concur.
Judgment affirmed. *Page 35