The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-10-30
Court OF Common Pleas.
SPECIAL TERM
Before the Hon Judga Woodruf


Before procee ding with the argument in this case
Mr.. Clark stated to the court that Mr. John Graham
counsel tor wilkes had informed him that his eng
ments to day such that he could convenient
ly attend here and asked permission 10 submit to the
court iarther points In writing which Mr. Clark as
scented TO- saying that Of course MIR. Graham would
furnish copy OF the points TO his associate, Nj Gal
MIR. Clark then d. will proceed to concui 10 the
argument in this case to-day, any other day the
court is pleased 10 name.
The Court.-Then proceed to-day.
MIR. Clark then commenced and said:-I feel that
cannot ada uch to the very able argument OF my
eai ned but nevertheless deem IL due to the
character OF the case TO make suoh suggestions
cur to the course OF the arguments presented
by my learned adversary, and by my associate, much
has been said by each Of them relative to the sys
tenn OF pleading created by the code When the coun
sci for the plaintiff, in tho course OF his argument
took the liberty assert, which he cid without my
permission that my learned associate aud myself were
enemies OF the code had right TO suppose that ne,
at all events, was friendly to it. not napprzed
OF the relation which he bore 20 of the authors of
that distinguished body of laws, and was therefore,
naturally led to the conclusion that adversary
not of that numerous class OF lawyers who from
blind and fanatcal adherence 80 the wisdom and ex.
pernce OF the past had failed to appreciate the very
great advantages which, it is said by has been
conferred by the code upon syst OF civil juris.
prudence. But, when had heard him 60 the conelu-
sion end found that he sought to sustain The pleading
to which We have demurred, upon principles which he
asserts to have been established by the code thou ht
could safely say that II the code has bitter
is my eay-rery and tito ba inimical the cods
sen IL lawyer he has Justly incurred that opprobrum
NO lawyer who has read the lt4dlugs ia tsis case,
could have failed TO discover that they exhibit
to the ancient form of special pleaaings without the
clearntss, the precision and the libnity which
that ancient form prescribed and frankly anknosl.
edge that my learned adversary Ia sscsfy.
Ing your Honor that the reply 10 which we have de-
N urred Is tuch one as IL approved by the code
must most reluctantly add my name to that class of
the profession who have been forcedO fsae that the
code OF procedure Will admit OF slight I'd
ment 80 far ss relates TO the subect OF pleading in
civil actions in other respects IL Is altogether per-
feet Blu. Az dispo.. TO be more conservative OF
isiibs laws, and She sisue insupport OF the dsmur
rer to this reply conceive that am sustaining the
principles Of pleading intended to be established by
the coce and that IN no measure nj crit the anathe
Ens which my adversary seems dsposed to direct upon
thote whom he pronounces enemies OF that instru-
mept
MY learned associate and myself have come to the
conclusion that the cod. exist, and yet plead
ing OF our adversary fail and rather inclined
to lick his reply into shape, which by demurrer
seek to 60 that not to have tho provisions of the
code applicable to plsadings in civil actions which
have oost the State much treasure aud It's authors
80 niue labor, nd req senseess and aninteiixbls
would be done II he argusent Of my learned auYer
saiy in support OF his reply coold be sustained.
l regret that the numerous Issues raised by the
pleadng., open 50 vide held for discussion and in
view Of he very full argument which has already been
presented 20 the Court shsl conhne my remarks TO
such Of the questions TO me to have escaped
the attention OF my learned associate.
In tho fret place permit 10 state the nature Of
the action The plaintiff alleges that Dir Bennett in
the plumber of the New York HsroH OF the 18th Of
April 1850 published libel upon lin under its head
OF Police INTEL s.nce. The libel comp siued OF
sts gidayi Of thu renowned Bristol Bill alias
Wilism Dariib gton. and OF letter from that !nd-
vdual addressed of the counsrl tor DTury who
vas lately rrisd and acquitted upeh the chG.gs Of
bsN ina sent the torpedo box 10 the house OF Warner
with the inteDt to destroy human lie The complaint
coes not Assert that che documents aGeigei TO eons
tut, the libel are false la their or la their
coneusions but my learned associate has presented
to ne .c9ft an ssamsn, pp9n shs ynst o. ta2 sys
deem A. unnecessary 70 add one siog,e VOID. may.
however, be permitted to thai IL is the urJ time
that The plaintiff in action fer Ebel failed 20
have The sudaciy TO assert the libel 20 be fao an
II the complaint be held sufficient 10 viii prob he
ne nTai tim. thst party com g~iplns OF hoe ~
the sverment OF the faty Of the lib where IL Ia tn.
fatiiy which constitutes the foundation Of the right
10 recover damages
But the court 4. 10 conrus the complaint az II il
alleged the fasity OF the libel the beloGs charge "a
O. be found In the allegation ansd 10 tn. letter Of
Distol lin that the against Drufy got no by
PERJURY and oonspiEasy, Aad that the con spr.tors
were n ompfon, Wilkes and Bristol Bill. Thii un-
doubtsdly amounts TO the charge thu. Thompson
WILKES, ana Eristol Ban had conrpirr1 10 cOavics
Innocent man by means Of psrjursd testimony. It
ErAl oasnce OF . high grsd, and II properly stated
and alleged 10 be false, would have laid the foundation
o; The tight {. recover damages.
The answer intetp~ssd by hr. Bennett to the CON.
plant jusiides tss libel and states that wilkes did
enter into conspiracy with Thompson and Bristol
lul 70 convict Drpty OF the crime OF having sent the
torpedo hex, by means OF pstjured tsstiWouy. The
also gives the details OF The movements 81 tn,
cuusprators liz assigns 20 zach his part, d-velopta
the siacrs and the conttvanuea which we're resorted
tpty the couspiTaturs 60 accomplish The result; aud
In the rlaincst aud most uumshkeabie terms. AYERS
Furthermore, Dr Bennett la his answer In tn spirit
OF believer in, rather than IN that u emmy OF the
code In addition TO the rHth Of The matter charged
oeiaustoIy. alleges mitigating circumstances, and
thus ErAils hinsff Of privilege unknown in former
tines bat expressly conferred BY The new code Of pro-
ctGUIs.
TIE mitigating circumstances alleged consist Of a
sSres "a deGnatory libeis upon Nr BeDro EFT published
by the psniih In gapsr called che Poiire G1ssfe 81
which the plHint sths rsputd editor and proprietor
90 al Of which lisels printed aud published in the
plaintiffs sheet prior to the publication IN ar ben.
a gf tf4 frs
subject Of The preseht action
Thia is the substance Of the answer ani. although
TIE matters alleged n defence nre stated in detail and
viii the greatest particusrty Il oannst b. Seriously
urged that the mode in which the defence u stated l.
Objectionable under the code. The faiinsss OF The
does rot, u IL clear. render II detective. No
person OF common undeTttauang possibly fail TO
krow what il Intended IL therefore Ia See style aud
sprt conforms 20 tho letter and the spirit Of the code
~ the answer had contained irfesysut redundant
matter my learned egvertsry WHO has read the code
clssr through. would have applied by motion, 10 pur
susuce o. its tOth section % have had zach mater
cut and " the precise nature OF Toe defense
bad not been apparent he would have spplei iu pr.
suetee o. the provisions 81 the SANE section q have
lad the pleading made definite qua certain. by snss l.
msut The answer Therefore, passes muster aud tor
ell the purposes g the present asEuzent must b. held
30 b. good snd sufficient.
nov cone 10 the reply which l. The subject OF The
pteFeut d,muftcr and ufon trying this rissdus by
the ordes prescribed BY the code feel adsnt that
the ecurt will sud ths the portion, Of the reply ds.
pune 10 a,e Ga uficieut % met ne dsiensss set
Up 10 tbs ausver, and 20 which they rurPori TO D.
MY
The rsrT srpcars 70 be separated into fsurteen %.
yifions. and take u for granted that he learned
counsel shc dres The pleadipr considered that each
division contained perfect reply % such rorti1n q
The hrswtr ~ y rreteuds TO ceyer. Aud hera am
fttcibly impressed sith one II she many advantages
which - stem Ct Law pleadinss has derived from
the ccte. aud am reminded hoW appropriately that
Nt dy CfaNe o. entitled An act % simplify and sbrige
Tie practice Of psdings aud preceding u The courts
this state" As the Law stood before the code took
erect u cardinal rule that every pleading must
be single and present but enc issue. Thus replies
ten der the old yEtem bears 20 reply under the
code the relation of TO fourteen and therefore
infer that the code u fourteen times valuable
than that tutiqus superabuated system which 70 at
once swept away, buried eth the rubbish Of The
eark tgss
The purpose of the reply perm BY The code IL to
cent eveft the matter contained 10 the answer or
20 avoid 70 by other matter n fact, not iuc1n-
sjsent with the plant aud thu IL is whole pur
pose. reply which does not ansver the dssoripion
prescribed ~ ~ code VI nadmssibis. and Therefore
insufficient. The plaintiff msy demur 20 one ~ more
81 several dsiences Get in the aud reply TO
the rtsiiue but 70 is not permitted 70 him 20 demar
end rtply TO the same defence. Such pleading
fusdrifsibie bacre the code aud 2 The manv de-