The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-06-10
LIBERTY OF TIE PRESS.
IMPORTANT DECISION Of JUDGE BOSwORlH.
New York Supsrier Co1rt Special Tern,
May, 1853

New York supsries Co1rt-Spscial Terra
May, 1883
MARSHALL BARBER, AN INFANT, By HIS GUARDIAN
JOHN BARBER, AGAINST JAMn GORDON BENNETT.
This case GENES before the Court on a denarsl
BY the plaintiff to each Of two separate defeaces in
tsposed to the complaint by the defendants answer
The defendant Chains that the defence first demurrsd
to alleges the truth Of the article for the publishing
Of which this action is brought and that the part
it thirdly demurred to AYERS in substance that the
publication is a fair and impartial report OF . pre-
ceeding before police justice, in open court, when
the plaintiff and his present and insist
that such publication is privileged. The complaint
sets out at length the publication with numerous in
uendoes. The questions which arise are: First
What does the answer in fact aver; and, second
What are the defendants rights the facts averred
and which the demurrer assumes to be true!
L. GARDENER for plaintiff
Benjamin Galbraith, for defendant. r#
Besworth Justice The article published in the
NEW York HERALD, charged to be lbellous, has
thin caption viz.:-"Suspcion of stealing money"
1t then proceeds to state the arrest OF the plaintiff
on suspicion; what appeared by the atidavit Of
the complainant" that plaintiff, when arrested,
'denied the charge and protested his innocence
that nothing was found in his possession whereby
any evidence could be elected which exhibited guilt
any more than the suspicious circumstances. JUS
tice Osborn, before whom the accused was taken
ordered him to be detained for a further hearing"
The complaint AYERS that by this article the defend
ant falsely insinuated and caused il to be believed
that the plaintiff was guilty of stealing The de-
PENDANT answers-First, that before the article was
published B. w. Osborn police justice of the
First judicial district, and had cognizance OF COM
plants charging persons with crime, suspicion Of
crime, and power to cause them to be arrested and
brought before him; and that on the 5th of Dscem
Der, 1851, one G. r. Breithaupt went before him
while holding public CO ri such police justice
"and made oath aad 1t was true in fact that" &c.
stating the matters which the publication alleged
"appeared BY the affidavit Of the complainant"
Is then ayers the issuing OF q warrant by Justice
Osborn for and the arrest of the plaintiff by
tho oficer named in the published article
that plaintiff being brought into open court be-
fore such justice was informed Of the charge against
him; that he denied the same, and demanded to
have hearing on the CON plant, and the examine
ton OF the witnesses against him in open court in his
presence and that the sixth OF December 1851 was
fixed BY the Justice the day for such hearing and
that on that day the plaintiff and his accuser ap.
peared in opcn court before the said Justce that c.
F. Briethaupt was then sworn in due form OF law
and did "then and there, Ia open court and in the
presence aud hearing Of the plaintiff re oeat the said
complaint by him made, IN manner aud to the ef-
examined by the plaintiff and the Justice heard what
was alleged on behalf o. the paintif and ordered him
to be detained for a further hearing; wherefore
the defendant. on his Information and belief. SAYS
that the said alleged libel III the complaint set forth
was at the time Of the publication thereof true &C.
The publication is averred to have been made the
9Th Of December, lo5l. This defence though in
some respects inartfically stated in the answer is
In substance and according to the nat ra and obv-
Gus meaning OF the ale CATIONS Of the answer one
Testing on the truth Of the statements contained in
the article published In a civil action to recover
damages for publishing a libelous article it is
perfect and full defence that the facts published
are true. Ii true, it Is OF consequence that the
publication WAS maliciously made fhe law pre-
sumes that no man can be peclnarly injured by
having the truth spoken published concerning
him And provided what is said or published Is
true, it is of conse4 in the eye OF the law
that it was maliciously Jne No authorities need be
sted in support OF those propositions; they too
well. and have been too long settled, to be open to
discussion. The demurrer TO this defence, Is OBJ
tious from the cause assigned was interposed in
the belief that it simply raised the question whether
such q publication was privileged. II fair aad
curse report of what transpired in the police court
This part OF the does not seek to justify the
publication on any such ground. but oaly on the
ground of its truth The only cause of demurrer that
could have been properly assigned Is, that it does
not state facts sufficient t. Constitute defence, and
should have pointed ort in what respects it failed
to aver what is requisite to make good answer,
in substance. that the facts published were true.
INJURED to- justifes the publication the averment
that the article published is fair and accurate re-
port of proceedings had before police Justice, in
open court, when the plaintiff was present and con-
fronted by the accuser and his witnesses, and had
an opportunity to cross-examiue the witnesses and
to introduce others, and to be examined himself in
exculpation Of the charge. The defendant contends
that such a report is privileged and may be lawfully
made. The plaintiff in the cause Of demurrer assign
ed assumes that it e. p1rte proceeding, and
that reports Of such proceedings however accurate
are not privileged. The article Itself in its terms
states the fact OF the arrest OF The plaintiff his denial
of the charge his protestaton Of his innocence, that
no evidence Of guilt discovered beyond the cir
cumstance deposed TO- and that be " detained TOR
further hearing. This part If tae answer
the arrest on the 5th Of Dece the desi gnaton
Of the 9Th for and the hearing VI the matter in open
court on that day, the repetition then and there
OF the charge contained IN the affidavit, the
result OF the proceedings, and that the al
legged libel is fair and impartial report
Of the proceedings had and taken upon the said
charge, in open court, before the said Justice and
the same was published ~ an item Of public news,
in good faith and without malice in the newspaper
named of which defendant the publisher. The
article was published after the pdbli; examination
of the charge. 1t cannot be denied that full and
fair report of the proceedings trial in conrt
may be justifably published But there several
English decisions in which the rlle is declared to be,
that ey payte complaints iInputing crime cannot be
nstifably published. Duncan w. rhwaites, .
Barn and Cress $50, is leading case on the sub
ect. In that case, the sixth plea, wlicn justified
)ne OF the bels, viz: that the plaintiff examined
the police Office, q criminal charge, and ordered
% enter into a recognizln,e. by averring that he
Jas 30 examined, and that he was required ID enter
INTO such recognzance, a heid good on the ground
hat il " contained no detail OF the evidence nor
any comment upon the case, but markedly stated the
result of what the Justice thought fit to do" On
looking at the libel t. which this plea inter-
posed it will be seen that II states expressly
with what crime the plaintiff had been charged,
that he had been examined In relation to it, and
had been ordered to enter into recognxances
to the amount Of f200 for his appearance at the
sons, and that all the witnesses bound to
prosecute; yet that plea although advertised to the
world that the plaintiff had been ted the charge
Of having committed high crime AID after being
examined in relation ~ il mad been required give
security for his appearance +, to it, held
to be good an to be defence TO srch publication.
IL certainly as much imputed that the plaintiff had
committed crime as the publication Of the com
plant itself would On principle. it would seen
that il the latter il IndeensIhe The former ought TO