The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-12-13

Of Carr w. Hood TO which refer your honor, the
libel was in . frontispisce to book and your honor
very well kno m that party may well ubslsd BY
means of ! picture a. well as by written words There
was frontispisce to the book representing kasght,
mesnir Sir John Carr leaving Ireland vito falling
"a II in regret He Represented Ia most iudicrous
manner holding ssrchisf tied up and apparently
containing all his wArdr obs, and upon his BE- IL huge
load OF his hooks under which he WAS bending.
The Court-Ths posito. taken BY the defendants
sci s sou nd one but shall decide the question here
shall deny the defendants motion.
ARGUMENT OF MR. SANFORD ON THE PART OF TIE
DEFENCE.
Mr.. SANFORD then n re and spoke as follows -
II the Court please gentls OF the jury It Is with
great regret feel myself called upon length of
time this o.ss has already occupied to consume any
OF tbs questions 1t presents for your Consideration 1t
wsuld hsve been gratifying to to have lst this ssss
your ceterminstsn and, without Attempting. far
the arguments of the counsel csad leave fer your
unbiased action and your deliberate spnlon decide
you that would entitle ths plaintiff Mr. Fry to any pscu
MARY damages appear beors yea to the case
at its cuson pectedly it the inten
ton of my associate Mr. Brady when We entered upon
the trial. to sumup and that the lsosth of tms
employed should have deprived the defendant of the
benefit Of his services aud you OF the pleasure and
the instr ucon which would have received in listen
ing to him While he has large professional experience
In al the ordinary branches Of law 1t has been his TASTE
and ipclinaon cultivate somewhat more extern dvsy
acquaintance with that class Of persons whose char
acter in this case and knows more OF them
than falls to the lot Of of his brethren
And have doubt that you would have listened with
pleasure to the observations he would have made upon
the circumstances this presents About two O'Clock
Friday, having made his arrangements for leaving
Saturday it became obvious that he could not perform
the duties BE- had elected to dss1ss sna both myself
ton we now occupy. l shall, however, spdeavor with
calmness and with entire accuracy OF statement to
present to your consideration the questions which the
gives rise to- and the facts contained in the evidence
and to show you what In my Judgment should be your
to rsmsrS so far IS the plaiut ' Is sc concerned
appears to to be one Of extreme lsvity.
He alleges no damages, complains Of ne private
court and jury claiming In the ls48 and 49
he had engaged In difficult and ArdGous undertaking.
the 81 sss aSo ar. Of
after he failed In his enterprise he before the
court and jury and asks that NJ Bennett .h. conPsn
citizen shall from his earning give to him portion
Of his substance he ought certainly to be able to trace
citisec before making such demand upon you bat in
his complaint he silent that he does not pretend
you to Of the injury that has arisen
him from the publications Of the defendant; feel,
therefore, warranted in saying, long as his private
character has not been aduced a. the remarks only relate
to bis public character and operations manager OF the
OPERA and that % he does not pretend to trace the
duct puTsasd on the par. Of this = S.sds him
lousnes But the part of tina defendant the Is
placed upon higher basis The people Of this State
citizen might unite and speak his sentiments every
subject being responsible only for the truth Of what he
wrote and nc new Law shall be passed TO abrdge the
liberty Of speech and the freedom Of the press and tbs
question which this presents the part Of the de-
PENDANT u.s. whether he has trsnsgressed this privilege
law In order to show you that hs has not 1t will bs
sary to call YOUR attention to questions to which the
H. whether the Of srs
libellous-because / assume that the court will
mot undertake to assert from the meaning and
there is anything clearly calculated to change the con-
dtion Of the plaintiff for the worse to make the jury
question in what they used, Is question Of
fact for the jury shall not 80 the publications to
examine separately whether the articles are nbsous
othsrwise-that will come in connection with the examt
nation Of the question bow far they true and how
fsr they are pri,ieged The Court win charge you that
may regard them having been made, the next uestion
Will be- whether the matter complained OF ibelous
was trus and II the matter amounting to libel is true,
has the plaintiff any right to claim damages? II the
facts pubh he'd be not true ami II the inference and
opinions which drawn in the articles from the
Is published are not just and accurate yet II you find
pnblc character and conduct Of the pAi in his posi-.
as manager OF the Italian opera In his treatment of
bis artists in lis connection with that enterprise and
didn't go beyonddnt travel out OF his relations with
his public business fer the purposes Of defamation
whether the ismsrls were rus in point Of fast just in
point of conclusion WHISTLER they in ridlculs and
satire or In reason snc guuent their pu6lost Is
slike priv LEGGED have already remarked thai il you
limited to the publ, character and conduct of the
plaintiff as manager Of - opera company, then the
question would s,iss-so accu Ately stated by the
learned ccunse-whether the party making the publ
cations believed at the time OF their publication that
these matters were true. Our law permits defend
ant, who believes the truth OF the matter publ he'd by
him, and who attempts to prave that truth he fails
to prove 1t to be true yet relies upon the apparent
truth to offer that fact in mitigation of damages Let
me illustrate this by single circumstance in this
It was raid there conspiracy and it reiterated
this morning by the counsel for the plaintiff who said
artists OF the company allutipg particularly to Bsns
detsi Mr.. Rossi, and Madame TRUTH Benedsth Now sup
pose-what consider uncomfortable matter Of fact
suppose 1t to be true that that conspras did ext and
in OF 1t Madame Tru had fsgned Illness and
yet Mr. Bennett, Is the publisher Of vspape in New
York moving nothing OF it, should publish that the
duct Of Me- Fry was not what it should have been under
the circumstances, then the law would permit Mr. Ben
nett to rely upon tie apparent truth which evident
10 Els mind and the fasty OF which concealed from
him. The law permits him to rely upon the apparent
truth as q vindication so far to sx,uss him from
paying any DAMAGES beyond which they complain Of.
The next question would besurpos, found that any
part Of this matter complained Of be bsous was not
true was not limited to the conduct Of the plain in his
Official relation to the public and suppose not be-
ieved to be true not hoa in good faith what DANA
gH ud the plaintiff bs entitled to recovery The plain
tiff has not ATTEMPTED to prove any especial damages
any direct injury which you appreciate or measure by
money true AZ legal propositions aud the court
will charge you, that where the words aconaoe In
themselves, neither damage malice required to be
airmativey proved. The Law afarms BOTH but the Law
does not assume amount either 1t does
ns U6tn uAmaReo more tAan one cent,
nor does assume that The defendant has been acuated
BY any degree amount of malice and it leaves the
jury still to assume the actual extent of inju-
ries utaned by the plaintiff, and the malice
exhibited the part of the defendant In this case the
plaintiff for injury done to him. the damages which
you will give will b. limited TO the injury you will end he
has sustained his chars ctsr manager OF the opera
The business which he entered upon either business
required experience and previous practical lad per-
sopal acquaintance with it, II did net. IL die not
require any then assursdly the injury which would
suit to the psrs who had pended any time
money in preparations for it. would be very ss ht If
did require previous knowledge study and intercourse
with the persons who to assist ia rendering the
business euccassfu then it Is perfectly evident that the
plaintiff Is not qualified for he spent any time
prior to engaging in this business And il there be any
thing ibelious in this case, IL will be grouping OF
all tie observations In this general idea--that
when Mr.. Fry Engaged in this business, in 1s4s,
he had not the requisite knowledge, skill, and
experience he was not possessed of those
personal qualities necessary to ensure beg
your in this connection to the fact thss he
gagged these artists in August and September, and
menCd bis upgeral October lS18 and that