As I concur with my brethren in their conclusions upon every point of the cause, and consider the reasons assigned by Mr. Justice Boswobth as sufficient to sustain such conclusions, it might appear needless to add anything to the opinion delivered. But the leading question in this case— the right to give vindictive damages in a libel suit where actual *305malice is found by the jury—receives great importance from, the opinions of some judges of the Court of Appeals, which question that' right. The doubt thus thrown upon a rule which I have received from my professional teachers as unquestioned, irreversible law, has made me feel it a duty to add something to the reasoning and authorities upon which the opinion of my brother is founded. The twenty-ninth exception taken by the defendant’s counsel upon the trial, involves the point in controversy.
The judge was requested to charge as follows:—“ That if the jury should find any ground for giving damages to the plaintiff, their verdict should be for such sum only as would compensate him for the injury he had sustained therefrom; and that the jury were not at liberty to give him any further sum by way of punishment of the defendant, or by way of vindictive damages, or as smart money.”
The observations of my brother B.osworth, in contrasting this request with the charge actually made, and his conclusion that the refusal is not, when the whole is considered, ground of exception, appear to me unanswerable. But I am desirous of expressing my own opinion upon this great point, when placed in the strongest form in which it can be presented for the defendant. I shall, therefore, consider it as if' the judge had expressly charged the converse of the proposition to be the law, and had employed the language of the request, varying it only by omitting the word “ not ” in the latter part, and inserting the same word after the word “ should ” in the first clause. In determining whether this would be ground of exception, the court is justified in connecting it with portions of the charge actually made, pertinent to the same question. It may, therefore, be viewed in conjunction with the instruction, “ that an actual malicious intent in making the publication might be, proven, and the jury was to judge by the evidence whether such an intent was made out. If such was the case, and the defendant had not proven his allegations to be true, he should not escape with nominal damages.”
I shall treat the question, then, as the counsel insists it must be treated, under the refusal and the actual charge ; and shall suppose that the judge had added, after what I have quoted *306from the charge, the converse of the proposition contained in the request, as I have stated it.
It is to be noticed that this proposition does not involve, but may be entirely consistent with, the exclusion of the idea of punishment for the injury done to society. It is punishment of the defendant for the wrong done to the plaintiff. It is punishment for an injury attempted or designed as well as for one inflicted. ' It is punishment for the intent to injure in numerous cases, where no injury can probably arise ; and it is consistent with the assumption that the offence cannot be penally visited by the State; or if it can be, that the penalty is inflicted on a different ground.
. I am unable to see any logical contradiction in holding, that the same person may be compelled to atone for the same offence to an individual for a wrong done or menaced him, and to society for his aggression upon her peace; nor again, that the mode of making such atonement should be payment of money in each case. If this is so, then the adjustment of the proportion of punishment becomes a matter of practical arrangement; and it will be seen that tribunals of justice have so adjusted it.
In this connection I may advert to the point taken by the counsel, that this doctrine of punishment, invades the provision of the present constitution, that no person shall be subject to be twice put in jeopardy for the same offence. That precept is found in the early ages of the common law in the maxim, nemo debet bis puniri pro uno delicto, and was applicable to criminal prosecutions, and when one judgment or sentence had been perfected. Another maxim, perhaps more pertinent, is, that no one should be twice vexed, if it appears to the court, that it is for one and the same cause. (Shawe’s Case, 5 Rep., 61).
It has never been imagined that either of these, precepts interposed an objection to the institution of proceedings by the ’ State simultaneously with an action by an individual .for a libel. It has become settled law in England and in this State, that the existence or determination of the one is no bar to the other, although it may bear upon the question of the-suspension of proceedings, and mitigation of punishment, in the *307criminal court. That court will postpone sentence or the proceedings, until the result of the civil suit is known, with a view to the extent of punishment; but the civil action is not stayed or affected by the criminal prosecution. (Cook v. Ellis, 6 Hill, 466, and cases). I am informed by two gentlemen, who have each filled the office of district attorney, that the practice is as frequent to stay proceedings before as after conviction, until the result of the civil suit is ascertained.
The punishment upon conviction for a libel in our State, is a fine not exceeding $260, or imprisonment not exceeding one year, or both such fine and. imprisonment. (2 R. S., 697). This is the reparation to the public, which the legislature has deemed sufficient for the vindication of public justice. And that offence which is thus punished, is the tendency of the libel to provoke to a breach of the peace. (1 Haw. Pl. C., 73 ; 2 Kent, 17).
This tendency is so essentially the ground of the criminal prosecution, that it lay at the root of the rule so long prevalent in our own country, that the truth upon an indictment for a libel could not be given in evidence. (The People v. Croswell, 2 John. Cas., 392; 2 Kent, 18). Whether true or false, the danger to the peace of the country was the same.
When, then, the terms vindictive damages, or exemplary damages, are employed in a civil action for libel, they mean, in my opinion, the atonement which the law demands shall be made to the libeled party by the offender, and such atonement involves essentially his punishment. It is a condemnation and infliction for traducing the individual—not for provoking him to break the peace.
It would be objectionable in this view of the case, to instruct a jury to give damages on the ground that the interests of society required the defendant’s punishment, or that they could consider the offence to the State as a reason for increasing the damages. It must be admitted that this idea has, in some cases, been loosely and partially presented. It does not belong to that idea of the • punishment now sought to be developed. That is consistent with the supposition, either that there is no penalty on behalf of the State, or that such penalty is for another cause, and with a different object.
*308The moment we admit of any exception to the naked rule of compensation, measured by an accurate or approximate computation of actual pecuniary loss, we admit the idea of a reparation for something indefinite, and the adjustment of which must be indefinite.
It is stated6that the Lord Commissioner (Adam) of Scotland—the most earnest advocate of the most restricted rule— said, in an action for defamation of a professional man, “ that . the question of damages must always include both a question of loss and solatium.” (Quoted by Mr. Sedgwick, 465, N.). The allowance of any sum for solatium., is an allowance for something beyond positive loss, and for reparation distinct from restoration. It seems difficult to separate this idea of' reparation from that of punishment. What is taken from the' offender beyond what is lost and can be restored to the party injured, partakes of the nature of a penalty.
But again, there is a class of libel cases in which the character and situation of the person assailed, preclude the possibility, not merely of a pecuniary loss, but of an injury to his reputation, or even a wound to feeling. Lord Tenterden adverts to such instances when he speaks of the calumnies of those whose censure is more to be desired than their praise and Cicero had before declared : Invidiam vvrtute paratam, ■ gloriam, non invidiam, putarem. (In Oat.)
When the justice of the country is invoked to deal with a libeler in such a" case, on what ground can any damage be awarded but upon that of atonement for an attempted offence, and punishment, as the absolute foundation and object of the verdict ? Civil actions for libels must be abandoned, and in cases where the just indignation of an honest community demands their enforcement, if such a principle must be surrendered.
With these views, I have examined the leading English cases, and those of our sister States, which are cited by Mr. Sedgwick in his able work upon damages, and in the comments of Mr. Greenleaf and Mr. Metcalf upon them. A few others may be added. (Cole v. Tucker, 6 Texas Rep., 268; Fleet v. Hollerheep, 13 B. Monroe, 225; Stout v. Prad, Coxe’s N. J. Rep., 79; Trabrue v. Mays, 3 Dana, 138). It appears-*309■¡to me, that the great body of these authorities sanction the rule as I have attempted to express it.
It is superfluous for me to notice the decisions in our own State, after the critical and ample examination of them by my associate. I content myself with adverting to that of Tillotson v. Cheetham, in 1808, (3 Johns. R. 56), and to those of Collins v. The Albany R. R. Company, in 1852, (12 Barbour, 495), and Taylor v. Church, in 1853. (Selden’s Notes of Appeal Cases, July 1853, 50).
In 1808, Chief Justice Spencer stated, “ that it had always been the practice to instruct the jury in vindictive actions, such as libels, that they are to inflict damages for example’s sake, and by way of punishment to the defendant.” The rule thus declared to have always prevailed before 1808, has prevailed ever since, and has been recognized, or assumed to exist, in a long series of decisions in our State. It has become consecrated as an enduring maxim of our laws, by a perpetual tribute to its legal truth, offered by the illustrious judges of our tribunals, from the day of Spencer and of Kent to the charge of the chief justice of this court in the present cause. For myself, I feel that in wandering from it, I should merit the admonition involved .in the maxim of Lord Coke: Quodnovum judicium non datjus novum, sed declarat anüqu/um.
For these reasons I consider the refusal of the judge to charge the jury as he was requested in the 29th exception, to be unobjectionable, and his actual charge correct.
A new trial must, however, be granted, on account of the .admission of the deposition of Strakosch.
II. Ma/i'ch.—Order to show cause why plaintiff should not be .at liberty to introduce proof that Strakosch was in fact absent from the -city at the time of the trial.
The plaintiff moved upon affidavits showing that at the time of the trial Strakosch was actually absent from the State,—he having left, the day after his deposition was taken,—that he might be allowed to prove the fact of the witness’ absence either at the bar of the court or before a referee to be appointed; and that on that fact being satisfactorily proved, *310the order granting a new trial, might be vacated, a re-argument ordered, and that the cage or bill of exceptions might be so-amended as to make it appear thereby that the absence of Strakosch was satisfactorily proved.
A. L. Jordan and F. A. Sherman, for the motion.The-proof of the absence of Strakosch from the State, is now, and was at the trial, addressed solely to the court and not to the jury, and therefore could not affect the verdict. The proof showing both now and at the trial, that Strakosch was out of the State, and the proof at the trial slight as it was, being satisfactory to the judge before the deposition was read to the jury, if it is now satisfactory to the court, the order granting a new trial should be vacated. (Roche v. Wood, 7 How. Pr. R., 416, Morgan v. Avery, 7 Barb., 656). And the court may after granting a new trial, even on an ex paHe application, order a re-argument and allow amendments in substance, and then reverse their own judgment. (Slocum v. Fairchild, 1 Hill, 294). Under -the Code a new trial ought not to be granted, on the ground that the absence of Strakosch was not satisfactorily proved at the trial, if it is satisfactorily proved now. (§176, 467, 173, 174 and 271, subd. 2).
P. P. Field, J. Townsend and B. Galbraith, opposed.First.—The motion is entirely unprecedented.
Second.—It supposes, first, that if it had been made at the-argument on the appeal, it would at the last term have been successful; and second, that though not made then, the court will hear it now.
Third.—The court will not re-open the case for the purpose of letting in this motion:—
1. Is it clear that the court has the power to order a re-hearing of the appeal ? For this is in effect an attempt to obtain a re-liearing. The Code declares (§38), when an appeal 'shall be re-heard. Does not that by implication exclude a re-hearing, for any other cause ?
2. But supposing it to have the power, yet the restraints it imposes on itself will not allow it to re-hear this case. Its own. dignity, and the respect which it requires, and the orderly con*311duct of its proceedings, forbid it. The parties have had their-day in court. If re-hearings are allowed in one case, they will be asked in all. The constitution of the court makes it particularly inconvenient, only three judges generally sitting at the general term, (4 McLean, 254; 4 Wend., 188 ; 25 Wend., 253); and if re-hearings are allowed, they will always be attempted when the six judges are on the bench.
3. The courts have always leaned against re-hearings. There-is a sort of tradition on the bench that they are injurious, and to be discouraged.
4. There were other points in the case argued at the general term, on which no opinion was expressed.
5. The plaintiff has acquiesced in the decision, and under it noticed the case for trial at the present term. It is submitted, therefore, that the court will not grant this application, for these reasons, if there were no others, that the case has been once fully heard, carefully considered, the order for a new trial entered, and th"e cause noticed for trial.
Fourth.—If, however, the decision of the general term were to be re-opened, the application to examine witnesses, to supply the defect of proof at the trial, should not be granted:—
1. The jurisdiction of the general term is purely appellate, and that implies that it shall decide the case upon the same grounds as the special term. . {Code, §37.)
2. The deposition of a witness taken conditionally can only be read “ after it has been proved that he is absent.” The-proof of absence cannot be made or supplied after the deposition is given in evidence. (2 L. 8., 392, § 7).
3. The cause was heard at the last term upon exceptions, as well as upon a case. An exception cannot be obviated by proof at the argument of the appeal.
4. The instances in which proof has been heretofore permitted to supply omission at the trial are those in which the proof was documentary and could not be contradicted, and the motion was addressed to the discretion of the Court. (3 Johns. Cas., 125 ; 13 Wend., 525 ; 2 Sandf., S. C., 719).
Fifth.—The Code gives no countenance whatever to this motion ; it is not a case of “ amendment.” If it were otherwise one might always supply defective proof on an appeal; *312and proof might as well be introduced on one side as the other, to reject a deposition, as to admit it. ’ The word “ proceeding,” in the view of the Court of Appeals, does not include an affidavit. (1 Comst., 611). “ To supply an omission in any proceeding,” in section 174, refers to an omission in a record or paper—otherwise one might supply an omission to appeal or to give evidence. (Sec. §§174, 327; 7 P. R., 108, 8 P. R., 301).
Sixth.—If, however, the case were one in which all the obstacles before mentioned were removed, and the court would re-open the case and the omission might be supplied by proofs at the bar, yet it would be a matter resting in the discretion of the court, and governed by considerations affecting the furtherance of justice. In this case justice would not be promoted by the admission.
Oaklet, C. J.,(orally). On last Saturday a motion was made and argued in the case of Fry against Bennett. Fry, as is well known, sued Bennett for a series of libels on his character and conduct as the manager of an opera. Trial was had of that suit, and it resulted in a verdict against defendant. In the course of that trial, the deposition of one Strakosch was offered in evidence. He had been examined by virtue of an order made for that purpose. His deposition was offered to be read, and it was received, under the general objection on the ■ part of defendant’s counsel that the absence of the party was not satisfactorily proved. On the argument of the case an exception was taken' to the ruling of the judge at the .trial admitting that deposition, and a bill of exceptions on all the evidence in the matter was brought before the court and' argued. The court ordered a new trial solely on the ground of the improper admission of that deposition. Yarious other questions of importance and magnitude were involved in the case, in respect to some off which the judges who decided the case expressed an opinion ; but, as I understand it, the reversal of the judgment and the ordering of a new trial rested on no other ground than that just referred to. After this argument, and after the decision of the case, an order for a new trial was entered. The plaintiff now proposes to produce testimony at *313the bar of the court, in order to remedy the defect in the evidence which existed at the trial, in relation to the absence of Mr. Strakosch. He proposes to produce witnesses and have them examined, and he has presented the affidavits of these witnesses, going to establish very clearly that this man was, in fact, absent at the time of the trial; and which evidence, if it had been produced on the trial, would appear sufficient to have authorized the introduction of the deposition.
In the discussion which took place last Saturday on this matter, counsel for plaintiff was admitted—perhaps a little irregularly—to enter into an argument as to the correctness of the decision of the court in admitting this deposition. The court heard him, as much perhaps out of deference to counsel as from any other reason. He also entered into a similar discussion, intending to show that the judges who heard the case on the bill of exceptions had come to a resolution which was contrary to law. In disposing- of this matter now, I take occasion to say that the judges who made that decision, and ordered a new trial, and to whom these suggestions were made, see no reason to alter the views which they then entertained in relation to this matter. The question which counsel, in his argument, presented, did not naturally or positively connect itself with the motion before the court. Still, however, as the counsel entered into an argument on the subject, it is proper to say here, that the judges who so decided have not in those suggestions discovered any reason' to doubt the correctness of the conclusion at which they arrived in that case.
How, in respect to the points on which this motion turns, we have examined the matter, and we cannot see any just ground on which we can grant this motion. It has, no doubt, often happened—I know it myself in my own experience, and I know it as a matter of common expediency—that when, on the trial of the case, there has been some omission of evidence, which afterwards, on an examination of the case at bar, is discovered to be material, it is within the discretion of the court to permit such evidence to be supplied. It is done, for instance, in the case of a judgment record, or of a deed, or of any documents as to which there can be no dispute, and which can lead to no conflict of testimony. Courts have occasionally, when *314such matters have come before them, sent a case back for a new trial; but that is seldom done when the purpose is merely to introduce a document which could, in no possible way, have influence upon the minds of the jury. The attempt now is to carry this practice further. It is attempted to have an application -of this • kind made to the court after judgment in the case. After the case'is decided, and a new trial ordered, it is attempted to introduce evidence on a point which might, be the subject of conflicting testimony. Thus, witnesses whom the plaintiff’s counsel proposes to produce before the court and examine, might, for all we know, be contradicted, and successfully contradicted, by others. At all events, the admission of such evidence would open the door for a trial on matters of fact which were not sufficiently proved at the trial; and this would be clearly inconvenient, and not only that, .but highly improper. We are quite of opinion, therefore, that we cannot extend the practice on .this subject beyond the cases in which it has been hitherto adopted ; that is, beyond cases in which, when a bill of exceptions is brought before the court, application is made to supply a defect in the evidence-—-formal merely —and which evidence, when produced, verifies itself, and is necessary, as a matter of record, to sustain the party who obtained the verdict. This is allowed to be done when it is unnecessary and inexpedient to put the parties to the expense of a new trial, and where the proposed supplementary evidence is merely a paper which cannot be disputed. In this practice there is nothing unsafe or inconvenient; but it is easy to see that if we were to go further, and undertake to enter into inquiries in relation to evidence which in its very nature is controvertible, where' opposite witnesses might be called, and where it would be for the court to weigh the credit of the witnesses, such a practice would lead to great irregularity. On that ground, therefore, it is quite clear that this motion cannot be granted. It is quite clear, also, that such a motion never has been granted after judgment being given. The application is, in fact, to open a judgment which has been entered, to set aside the order for a new trial, to allow additional facts to be proved, and to bring the matter up de nova. • In the judgment of the court, that would be the effect of granting this motion. *315Row, it is much better that the parties be put to the inconvenience of a new trial, in which this defective proof in regard to Strakosch’s deposition may be remedied. On the whole, therefore, the motion must be denied. The reasons for this decision are given more extensively in detail in the written opinion, which can be resorted to by parties interested in it.
By the Court,
Bosworth, J.We have no doubt that the deposition of Stralcosch was improperly admitted as evidence, and that a new trial should have been granted for that cause.. It is now contended by the plaintiff, that, conceding this to be so, yet as the evidence on which its admissibility depends is, by statute, to be addressed to the court only, and is not to be, and is not considered by the jury in forming their verdict, and as it is now made apparent, by satisfactory proof, or can be made so, that Strakosch was continuously absent from the State until after the trial, the court should now allow the fact to be proved; and that if conclusive proof is given, the order granting a new trial should be vacated, and a re-argument ordered, and the case be so amended as to present on its face satisfactory proof of the fact of such absence.
The plaintiff relies mainly on that class of cases in which a party who has obtained a verdict on defective or insufficient proof of some fact, the existence of which depended on record or documentary evidence, has been allowed to supply the defect, on the argument of a motion for a new trial, by producing a properly exemplified copy of the record or document. He cited 2 Sand., S. C. R., 719 ; 3 Barb., 429 ; 24 Wend.; 14 Wend., 126; 4 Wend., 591; 13 J. R., 517; 3 J. C., 125 ; 2; Metcalf, 64.
All of those cases, except two, (3 Barb., 420, and 24 Wend., 14) came before the Court on a case made, and not on a bill of exceptions, or upon a writ of error. In all of them the defect was supplied on the argument, and before a decision was made by the Court in ba/nc. And in all of them the point defectively proved at the trial was capable of being proved by record evidence, which could not have been controverted had it been produced at the proper time, and evidence of the latter kind was produced and received on the a/rgument in opposition *316j the motion for a new trial. It has been expressly decided that .that rule does not apply to a bill of exceptions. In Hart v. Coltrain, (24 Wend. 14), the Court stated the rule in these terms:—
“ A motion for a new trial, on a case made, is addressed to the sound discretion of the Court; and where the party relies on some defect in the proofs, which is afterwards supplied by evidence which could not have been controverted had it been produced at the proper time, and the Court see that a new trial could be of no use, the motion would be denied.—(Burt v. Place, 4, Wend. 597, and cases cited). But this rule does not apply to a bill of exceptions, and we cannot look into the affidavit.”
In that case an exemplification of an affidavit made by an administrator before a Judge of the Court of Probate was produced at the argument, which, it was claimed, was sufficient to confer jurisdiction to make an order, the validity of which was questioned at the trial, on the ground that it was not then shown that jurisdiction to make it had been acquired. But as the cause was before the court on a bill of exceptions, and not •on a case, the court refused to look at the exemplified copy, and ordered a new trial.
In Dresser v. Brooks, (3 Barb. 429), this distinction does not appear to have been adverted to, and no reference is made to Hart v. Coltrain. The only decisions cited are, 14 Wend., 126, 13 ib., 524, and 5 ib., 535. In these causes the defeated party moved for a new trial on a case.
It may perhaps be said of Dresser v. Brooks, that although the report of it shows that exceptions were taken at the trial, yet it does not state that that case came before the court on a bill of exceptions. If before the court on a case, which reserved no right that it should be turned into a bill of exceptions, the decision made in it does not conflict'with that made in Hart v. Coltrain. We have been referred to no case in which a re-argument was ordered to allow such proof to be given after the verdict had been set aside and a new trial granted. Hor have we been referred to any case in which defective proof was allowed to be supplied on the argument of a motion for a new trial, even when such proof was to be *317considered by the court only, if the fact to be proved was to be established by the viva voce testimony of witnesses, or by any evidence which in its nature was controvertible.
To allow such a motion,-would assume that it was competent and not inexpedient for the court, after reversing a judgment upon an exception taken at the trial, and after both parties had been heard upon it, at the general term, to vacate the judgment of reversal, and allow defective evidence to be supplied by proofs, to be given at the general term, provided the proofs related to a point upon which evidence was to be given to the court only, and then rehear the appeal, and dispose of it as if such proof had been produced at the trial.
The statute requires “ satisfactory proof” to be given at the trial; and unless it is there given, the party taking such a deposition, has no right to read it at all. To grant this application, would be equivalent to holding that, although there was, confessedly, no evidence given at the trial of the absence of the witness from the State, yet the Court, on appeal, and on reviewing an exception taken to such an admission of a deposition, might, without any impropriety, allow witnesses to be examined at the general term, to prove that in point of fact, the person who had been examined de bene esse had continued absent from the State, so that his attendance could not be compelled by the ordinary process of law. Whether an appeal at the general term is from an order denying a motion made for a new trial on a case, or from a decision of questions of law upon a bill of exceptions, we are of opinion that it would be improper, and highly inexpedient, to so extend and apply the rule as it would be necessary to do, ,to sustain this motion.
The motion is therefore denied, with costs.