The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-10-30
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The second division I am at los, how IN oh.-..
terire It alleges that the principal portion ~ th nc
ply sets forth facts which not under tn.
code Of procedure In pleading and that 20 comIel the
plaintiff to reply to such facts 10 to compel him
discovery under oath which under the code II is in
Whatever this may be called 1t does not come with
in the province Of reply as that province prescribe
ed by the code, and 1t is therefore Insufficient and
In my ada nt the learned counsel is mistaken in
his notion that under the code discovery mot be
had except bya personal examination Of the party
rem whom the discovery Is sought The party may
emit to answer and thereby admit the facts alleged
against him but if he answers he is PEELED to make
discovery.
BstI pass on to the consideration OF those portions
OF the reply which mast assume we're interposed in
as containing sufficient replies TO the de-
fences set up IN the answer
The third division of the reply does not in terms,
contTovert the allegation in the that the plain
YIN catered into conspiracy with Thompson and
Darlington TO convict the Drurys Iby means Of per
ured testimony But the peader in language TAR from
concise and inteligble alleges that he believed the
Drurys TO be guilty and un ler that belief enlisted
the services Of Thompson and Darlington to obtain
from the Drugs the confession Of their guilt This
division winds up, by denial that he formed or en-
tered into conspiracy, to injure or destroy the
Drugs, and alleges that the plaintiff did nothing in
consistent with the usual OF the police in the
discovery OF feonies.
The specific conspiracy alleged in the answer not
denied and is therefore, to be taken admitted and
the avsrment that the plaintiff did not form con-
spraoes to inure or destroy the Drurys sensslsss
aud upinteib unless the pleader intends to assert
that conspiracy to convict a man, whom the
spirator believes to be guilty by perjured testimony,
The substance then, Of this division of the reply
distinctly raises these two questions
let VI hether a belief by conspirator that his In
tended victim is guilty justihes the formation OF
conspiracy convict him by p.rjure testimony And,
I'd. Whether the tact that such eonspiracies in
accordance With the usual Of the police in the
discovery Of islons furnishes to the
spirators.
TO state the proportions Ia other words, the arst is
whether you NAV do evil that good may come aud
the second whether you may do evil In accordance
with the example OF an evil doing police
My learned oDportnt MAY advocate these doctrines,
ard WIT he has established them, may perhaps, jus
tify the course OF his client.
That portion Of the fourth division of the reply
which IL demuri ed TO- In substance and effect alleges,
that The course pursued by the plaintiff foil witho
tie scope of the purpose a tho institution of the
National Poiics Gareu. that the conspiracy for the
cor yictiou OF the Draws ginsted gth the plaintiff
and confined 10 mis- own breast, except AS, from
time TO time he drew others In 10 do tho which
he from time TO time carried on that the persons
thus summoned % bis service worked bindolded and
that Thompson In particular labozcd for bis
culpstion from The charge which the plaintiff
disclose the rsmiacstions Of the plot and states the
fasel GODS by means o. which the victims were de-
signed TO be secoytd But IL nowhere controverts,
generally or particularly the Justification of the libel
up in the answer
Is an argument necessary to esabti the PROPOSE
ton that the facts tas ALLEGED are insufficient TO
answer the charge OF = conspiracy to convict man
by means Of perjured testimony
The sixth division OF the reply Is trans parenty In
sufficient and raises no point worthy Of "A momant's
discussion while the seventh was fully considered at
early period Of my argument.
Tbe portion of tbe eighth division Of the reply de-
INJURED to, amounts toa proallse OF threat OF the
wonders TO be performed upon the trial ID good a.
notice u ~ n.verthelpss bad "a pleading Neither
this portion of the eighth the ninth division Of the
reply atge any matters of fact sui cisnt 70 meet the
d,fences set up In the answer.
The demurrer to the eleventh division Of the reply,
ras.s distinctly, the question whether in action
for libel IL IL answer 20 charge that the plaintiff
entered into oonspirncy so ooaVist mao OF
crime by income OF perjdred tssimony-to alese that
the defendant lie COMMON liboler and thisis aosut
the strongest best made point In bshali OF the
plaintiff. presented by these pleadings
But have beard no argument fron the counsel Tor
the plaiutiG in support Of the doctrine which his
tea ding would TO assert, aud certain u Ia that
tnrre 81 principle az law, or cf common selse, whca
viii permit sush a doctrine to be sustained
In seton for libel the character of the
plaintiff may bs pu; In issue In mitigation OF dana
That tie def, ndant Is common libeler would rather
diminish than enhance tse damagvs OF the paiatid -
when character comes Ia Issue 10 Is the gsaeral
Of the party.vhich & involved ai pertiea.
nett, In this ease would be permit 80 - prove n
The q al tbe bda character OF tue Y1int % sag OF
mitigation OF damages tie ehAr@etes 90 tg' ie.a tlt
can la nowise come In issue Such bsuy clearly tho
rule OF law and OF evidence, may safely proaouncs
this eleventh civfion Of the reply 70 Do lb-t upon
the deer dant, ubhalio ~ed by the code and
unprotected by professional privilege.
The tvel1h division OF the reply GriOunts to de-
20 portion Of the while the thirteenth
OF its allegations aud am unable 10 and Ia thu coda
pro1ion under the language or thu spill. Of shlch
this mode Of reply eaa be sanctioned
The fourteenth division has already bee1 sufficiently
considered.
have nov vadei clean ,h-ou N this reply, and I
think enough has bsen sad to satisfy the court taat
the d.murryr intsrFosed oy mr. a.aooiAte on the
sion have oaly % beg that tha eRs mics % tho code
may not have the triumph which woald result from
the approval ~ an intelligent eooit, q pleSdngso
wrochedly bnpgns In its form and 50 clearly iaaaf
nciept In ite substance.
Dtcinion reserved