The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-10-20

Der. No.-LIBKL Sur George Wilkes PissntW Jas.
associated Mr. H. r. Clark Of counsel for the de-
ndsst and said that this comes before the
court spon demurrer to the plaintiffs reply TO the
DEFENDANTS answer. The suit u action Of libel Il
Is brought BY the editor Of the Police Gazette against
the editor Of the Herald The libel-or rather the sap
letter, written by person named Darlington known
as Bristol Bill now confined In the State prison the
letter states that he bristol BID wilkes and One
EyedThompson entered into for the pur-
pose Of making evidence to show that Drury had
Internal machine and sent 1t to the house Of Tho
hov that consprsoy did exist and also the ds.
rent acts and dongs which they to for the
Counsel would not read the answer as had been read
to this court on so recent occasion After IL had
been served the plaintiff replied to it the reply Is also
long Upon receipt oit, he Mr. Galbraith, consulted
with other parties, whom 1t was found to possess
many ndnaccuracies thstlsome difficulty
at last to the conclusion that the most
way was demur to It. This accordingly done aud
some of the errors enumerated but the
were so numerous that 1t i'm possible to include
them all in the demurrer he should, however, EN-.
deavor t. raise them now The demurrer states that
stitute a cause Of action. The complaint shows
60 csuse Of action. Words, although true, may
be libelous, but to give cause of action in civil
suit words must be false well lbelious This is
civil action, but the plaintiff does not aege the libel
to be fefe One of the reservations which the defend
did not to raise that objection now, but he
toned it to show that he did not to waive his
privilege TO 90 so should the cause ever come 70 trial
[Reads the complaint The objection that he. Coun-
sell makes here Is that the plaintiff states that the de-
PENDANT published the libel but he does not, as is
necessary, state that il is false referred to LIST
starkie en- SANDER, $50 note All Fsirnan VS. Ives,
Barnwel and Anderson o46 ii Modern Reports, 80;
and also TO Cook en- Defamation, 60 All these, con-
tinued Mr. Galbraith, In greater or less degree,
state that is necessary to show that libel either
malicious or false On reference to etarkie in note
A. the court would find that be the very sting Of
libel is its alsehood Reads the End section ef the
reply Now, the objection to this is, 6rst that 1t 10
Of 1t is not apparent Referred to the code IS to IT..
relevancy and redundancy
The Court said that point not debateable here,
as counsel had not included 1t in his demurrer
MI Galhrath read rule 43 Of the code, and referred
to 4th Howards practice 6S So and these grounds
contended that that section was demurrable. Reads
Sd section of plaintiff Now the objection to this
Is that it is matter the objections to this point
numerous but he should confne himself merely to
the that IL il matter The first allegation is
that the Drugs were suspected Now who suspect
ed them The plaintiff must state facts and not con-
illusions. Instead of the mere statement that they
in the foul imagination Of
their accuser-we want the facts ard refuse to
were known among the Police; who are they They
a very extensive body. To which Of them does he
in the closet ct Brooklyn to overhear conversation
into which Mr.. Drury was inveigled! He, Mr.. Gal
brath was sure the chief Of police never entertained
these erroneous suspicious which were only known to
such parties he had named some other disrepu-
table persons frequenters ofthe Five Points and ether
lihe-famed localities. And look how vague and ridi-
that such method shall be reserted to that facts
and net conclusions must be stated Again the plain
tiff Gays he was animated by sense of duty, but
should like to know what that " sense Of duty was
Ii may be that what he considered sense of duty
others would not. 1t Is clearly not denial Of any
allegation within the meaning Of the code under
tion 155. We want him to upon oath, that he
did not enter into this conspiracy with which the
alleged libel charges him but he simply states that
he not in the habit of entering into conspira-
ces - We don't cay he was; charge him with sps
ciho fact OF being conspirator With Bristol BILL and
he does not deny it.
The Court-Ii he does not deny it, then that ia It
may be considered as sdmitted.
Mr. Galbraith-Bristol Bill ssys no matter what may
be thought Of him as burglar, yet he never was guilty
Of act Of which he was so much ashamed as being
the against Mr.. Drury. We allege that this
foul and dark conspiracy and in the very words Of the
foul and black conspiracy. We want him TO answer
the charge directly, not vaguely but he does not he
makes use OF evasiye and ambiguous answers and as
have pubshedths letter OF mis- brother consprator
he (the plsintin) ought to come up and show that
Drury guilty, and that he (wnke.) innocent.
Counsel therefore submitted that the whole of this
pleading lie entirely imperfect under the code Section
Is very long and before the Court In print. 1t Is
subject TO the same objections, and IL IS therefore
unnecessary TO repeat them. Reads 9th section OF
the reply This 10 also full Of objections from begin
ming 20 end Counsel felt It Impossible to raise the
the Court Of the character OF theee pieces that 20 By
the name Of plead.rsa counsel then referred to
tinued Mr. Galbraith iutmit we are not to be com
PEELED TO come before Court without knowing what
to answer to- The eede gives rsuch latitude but
am not aware that IL gives such latitude as the
plaintiff He says he will take such course on
the trial as his counsr, she'll advise Let his counsel
viii read ali the papers which refer to this Subject II
indeed he reads al the articles that have appa.sa n,
The Poiee Gazette he will Indie. not only great pun
court and jury. Iths degree Of Latitude that was
not prepared to hear any declare his intention 70
take The plaintiff also Gays he will claim the right to
prove that all his alleged facts true or believed or
that there were sufficient grounds for believing them
now that acting like good ploader tor 1t acting
mean toward the dsfendant but 70 the Drnrvs ts
parties Implicated In the allegations (Reads the 9th
section OF tke plaintins reply.l Here the plaintI
accusations against defendant by articles which an
pen.d in the Hosid rejecting on himself that is
tLst defendant hteled him and he hbeed the defen-
daHt Instead Of insisting upon reading the different
causes or matters giving rise to such publication the
plaintiff should show .uoh causes. Offering to prove
sileeauone TO be true not equivalent to allega-
ton Of their truth and the plstln cannot alege In
the alternative that his ses stions true were
believed or supposed to be true that his comments
were warranted but he should aege only one OF theee
allegations. tRescs section 18th Of the plaiptig "a
reply IL Is astonishing to me, continued Mr. Gal
brath that any person could think of ra,ins such a
ground OF reply as s raised here lie says the defen
can't Is aoommon Hbeusr. Does the plaintiff mean
tnat the Defendant IL like him elf common libeler
surpose that the plaintiff and defendant have libsed
one snothsr sud suppose the defen dant has belled
to r. Ms rsn, tn, the Pssdr should claim
he may find 10 possess at least some character and
fetpeetability, ana bring them to his advantage be-
cause no jury would give him damages for any libel
on himteff IL we knew vhat libels he alleges. we
would be prepared to deny them. But look the
snrdy suppose he assumed 20 prove that there were
libes other parties, should he reap the profit and
these other parties be debarred OF their action or
should they also, after Wilkes receiving and pocket
Ing the benefit, be allowed to sue the defendant
Reads the 18th section Of plaintiffs reply The
plaintiff in this claims the benefit of general denial
but he ought to have stated what part II IL untrue
,neh claim is irrelevant aud IA abolished By the code
Re. d the 18th section Of plaintiffs reply Mr. Gal.
brath submitted that the plaintiff not having moved
oer the ltpth action TO have the parts OF the
sEer which be alleged 70 be Irrelevant struck out he
has waived his right 20 De The asa rule Of the
supreme Court 1919 and the decisions In So 81 no.
werd show that the tight TO object cannot be kept
alive 10 be made use OF at the trial and the psntG
has no right TO cucumber the pleadnss with the pre-
tended reservation OF the right party Who does not
AXE advantage Of any imperfection within twenty |
'nys Is pi.cluded from doing 80 thereafter; Il Il too
ste AFTER the ansrer IL put in. Nj Gsbrnh In con-
;usion ssid this case comes In very volura nous
orm. and the defendant eonten A. that tine plsni
49,