New-York daily tribune., 1845-05-17
THE LAW OF LIBEL IN THE STATE OF sEw.YoRK
snccch OF 1y1ulnm II. Seward,

IN the SupreH'. Court on ne -dfgu'"e't 80 t"e
Cause Of Horace CExktEr l,.,a, ana Ganrs' Hos
MCELRarn, ads. jAiies rENIhokE SooHEN'
(0g Lijei, afay Il, ls;5.
II ysur Honors please, one OF the most influential
Presses of this conu.ry has expressed the opinion,
as appears in the present record, that II al acton
for Libel be brought against an Edlor-no matter
how ,rue the publication may be-yet, : as the
Law is now exPounded and administered ~ the
Supreme Court, The write, aa. 40 earthly choice
bu, 10 bow his neck TO the yoke, pay a! that may
be clgiuled ol him, and publish whatever hurnllia-
,ions shall be required of hun, or else prepare 10 be
immediately ruined
trus, 10 be able 10 vindicate the Law and this
Court from this censure, and from the censonous-
ness of Public Opinion on the same question
Certainly il is true, notwithstanding Legislative
efior, to introduce simplicity OF pleading IN Courts
of Justice. that the defence oi the action OF Libel
in this State has come TO be considered SO technl
cal. complicated and difficult, tina; there .s gene
raj opInion that articles alleged 10 be lbrlous are
defended with morc difficuiy now than formerly,
and with mere difficulty IN this Country than IN
England
Iru.t TO be able 10 show that the=e difficulties
suit from cerialn obite dtcn which have fallen from
the Bench in regard 70 Pieadngs, and TO slpllar
Jusjcia EXPRESSIONS in regard 10 the nature and
qualities OF Libeis.
plea must answer The whole uist:e:, and all the
matters contained in the count 10 which 1t relates,
even though the matters contained IN the count are
separable aad separatefy ana uislhcty chalSed ds
beis.
Secondly, That the defendant cannot demur to
one separate and several part o lbelous matter SET
forth in count, and deny or Justly G;fer several
and distinct matter in the same count, but must Ge-
murto the whole count OF Plead TO The whole count
Thirdly Fer long series OF years the Court held
that when defendant pleaded The general issue
with special plea, 10 which the plaintiff replied
and The dctenda nj deGrred, then II the replication
was held good, the defendant could no! idll back
npon the declaration, although il was coniessedly
defective; because, was SAID, mat would &c al
lowing the defendant 10 do indirectly ~a' ie couiu
not do directly plead and deri"i TO the same count
The Court have receded in part from this rule IN
the case Of -, 10Th Wendell.
Here Justice Beardsly lnterposed and said, that
although there were such obter d,ctd yetit mas al
| ways been held that the defendant could always,
in all Cases fall back and attack The declaration
Mr.. Seward proceeded: en- grateful for this III.
timstion. lhgve found those obito dicta dscalmed
in part brt the rule retained, nevertheless, with
qualifications But will now conslder the rule as
abolished altogether.
| now beg leave TO refer your HonOr3 10 several
libel cases always was and yet remains in England,
the two former principles, as well as the last are
erroneous, and that there, at least, the defend ant
NAV plead the general issue 10 the whole decIara-
ton and then in separate pleas answer any particu-
| lar part of any particular count, VIZ: "endti
Starkie /. 6S1; Tldd 603; Stiles vs.. Nokes East
| 1873; GARRISON VS. Lawson, Il Boyle, 30T Dow
ing's P K. GAL.
These cases were collected TO show tina, the
rules in question and which maintained here are
departure from the Law OF Libel in England.
But a case which has been decided and published
since this demurrer book WAS made, supplies the
mos, conclusive and satisfactory proof Of hs posi-
tion. In the case oi Root vs. Woodrnti, d HUI 42l
The present learned Chief Justice OF this Court
saws: 50 Every plea in bar must contain good an
swer TO all ii processes 10 answer or II VIII be bad,
but a. understand the Rule in England the plea
need not go TO the whole count, II there be other
pleas which cover the residue In trespass without
pleading any one plea going to the whole count, de-
fendanl may by one plea justify the breaking OF the
close and by another the seiZng oi the goods. II Is
enough that each plea good as tar as II goes, and
that all of the pleas taken together cover The whole
count shall not go over the cases but will refer
refer 10 one by way of Illustration. In Clarkson
w. Lawson in Bingham, 5S7, the action was Tor
libel and there was first plea 10 the whole declara-
ton and then plea oi justification as 10 part
only OF the libel. The Court held that rs the whole
declaration was answered and as the charge COM
Vhlnsu OIL was ScNSIdDic III HdtclC, lVcG tU a
part only OF the libel was good But when part
of the declaration remains wholly unanswered the
plaintiff mus, have Judgment by nj dicet as 10 that
part and if he demurs or answers over the whole
action will be discontinued We have departed from
these rules in TWO particulars.
lst Every plea in bar must moi only contain a
good answer so far as Processes 10 60, but must
answer The whole Declaration or count 10 which it
is pleaded I'd. If the whole be moi answered the
Plaintiff must denur and the action will not there
by be discontinued"
Since the departure is admitted by the Court, /
trust it Is neither presumpuons ncr dlsrespectful 10
pray the Court 10 return TO the ancient law, and |
submit the following reasons tor return:
First That the olden law, until changed
bv Legislative power Is not merely The better but
the right and the only Law.
Secondly. That The Law in Enelana and IN this
State will conform, and thus the same law Will be
universaI while the new rules established here
are neither universal here nor all IN conformity
with the law as established IN country governed
BY the same jurisprudence.
Thirdly. The new rule ls inconveaent and I'M
practicable. The plaintiff may combine separ-
ate causes oil action IN one Court and distribute The
same causes in any number Of Counts; vet the de-
teaGant is not allowed To answer fully ds 10 each
cause separately aud d.t.hc:i, end conhne himself
10 such answer in single plea, bai he must answer
IN each plea al the eXpen-r oi lnli"te d;npicatiOn
| and repetition every cause OF acton contained In
the same count
Fourthly Although the Plaintiff may combine
| one good ard one bad cause OF action IN the sane
Court, the defendant is allowed in Iha, case TO
deny or justify the and Gemur TO the other but
he must demur 10 both or plead TO both that Is.
ne must confess cause Of action 10 be good which
is maniiestly bad to obtain opportunity to deny
or Justify cause which he knows is false in fact.
/ What is this but TO deprive the defendant of the
righ, guaranteed 10 every man 10 have The Prellml
nary judgment OF the Court whether he shall be held
10 answer
And what mode of defence is given in lieu o! the
demurrer which is denied in such case ! Why,
on The trial ne may object against evidence being
gwen on bad count. But are we NOT entitled 10
the Judgment OF the whole Court II we are told
we may move in arrest OF judgment answer
,ha, the verdict many defects which would be
bad on demurrer
Having shown these departures from the English
JURISPRUDENCE in regard 10 pleading in actions for
LIBEL ii will be my duty 10 endeavor 10 show like
departure in regard TO the nature OF Libel.
humbly submit that the first count in this de-
claratlon is bad, because The words complained OF
do not constitute Libel.
The words are
AT all events, having published the letter excepted to-
matter o ntJeuee 'ricu oay - e!Rg toward
Mr. Cooper Che said plaintiff neauing,) but such his
conduct In the seemed 10 excite, have all times