The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-06-18

Important Dec,sson on Pleading IN Libel
SUPERIOR C0URr-sPEcIAL TERM.
ALBERT wHREDE vs.. JAMES GORDON BENNETT.
Mr.. G. Carpenter for plaintiff
Mr.. B. Galbraith for defendant.
HoFFMAN, Justice-The application is to strike
out various portions Of the answer as irrelevant and
or redundant merely The complaint Is
for q libel published in the New YORK HERALD, Of
which defendant is stated to be proprietor and
publisher. The libel alleged is publication on the
23d Of May, 1853, headed An alleged false pre-
tencen setting forth that officer Kearney had ar
rested man named Albert Whrede, on warrant |
issued by Justice Stuart in which the prisoner was
charged with obtaining lot OF bedding linens, &C.,
valued at $500, from Mrs. Mary Pohl, under
alleged false representations that the Justice held
the accused to bail in the sum of $500 to answer |
the charge 1t is then alleged that the publication
was entirely false; that no complaint made by any
one for obtaining lot of bedding, linens, &c. as in
the publication stated that the said plaintiff was
never arrested on any such charge, with an aver
ment of damage tanned, &c., by reason OF such
false and malicious libel To this the defendant
puts in answer divided into four heads, or four
separate answers. In the first, he sets out to all
Of said alleged libel, except the words q lot OF
bedding, linen, &C., valued at !" that the 2lst of
May, 1853, j. McGrath was Justice of police In
the Second Judicial District in this city; was there
holding public court that he had authority to cause
persons charged with criminal offences to be brought
before him. that the day and place before named,
Mary Pohl went before in said court, and made oath
charging the plaintiff with many details of circum
stances, with having defrauded her by false pre-
his own use That Mary Pohl prayed warrant to
arrest the plaintiff to answer this charge OF obtain
ing money under false pretences; that such warrant
was issued, under which the plaintiff was arrested
by III. kearney, police officer, and carried before
s. II. Stuart, q Justice of Police of the city, then
holding a public court for the administration Of
justice in such city that it was his duty and he had
lawful authority to hear and determine the charges;
fhav infSff haiu hotO in
formed OF the said charges; that such justice, upon
the examination it appearing to him that the offence
had been committed, and that there was probable
cause to believe the plaintiff guilty, ordered him to
find bail in $500, for his appearance at the next
Court of Sessions to answer TO any indictments that
thereupon the plaintiff found such ball. and entered
into recognizance. The answer then AYERS that
all and singular the facts herein before set forth are
the facts referred TO in the alleged libel in the
plant set FORTH Wherefore the defendant, on his
information and belief, saith that the said alleged
libel in the complaint set forth was, Except az
aforesaid) at the time of the publication thereof
true and because the same was true, he published
the same as he lawfully might. The exception is
the passage relative to the charge being of obtain
answer begins with stating that on the 18th Of
January, 1868, the plaintiff, by means of certain
fase and fraudulent .pretences cheated and de-
frauded one Mary Pohl of $685. the money and goods
| of the said Mary then and there being, land
afterwards and on the 2lst of May, 1853" Then
the answer proceeds to set out again the proceed
| ings in the police court, before McGrath and
Stuart, with scarcely variation in language and
none in substance. (rhe charge to amount is
general being stated at $50, without the detail Of
the ISL and the $7) The answer then proceeds
"And all and singular the facts hereinbefore set
forth the facts referred to in the said alleged Ii
bel; and because tie plaintiff did,. by false and
fraudulent pretences, cheat and defraud the said
Mary Pohl of the sum Of s88 of her moneys and be-
cause the said Mary Pohl charged the plaintiff with
the said offence in manner aforesaid, and because
the said Justice issued his warrant for the arrest Of
the plaintiff and because the plaintiff was arrested
on the said warrant by the said Kearney, and be-
cause the plaintiff was held to bail to answer the
said offence, therefore the defendant, on his infor-
nation and belief says that the said alleged libel
except aforesaid, was at the time of the pubica
tion thereof true, and therefore he published the
said alleged libel in the complaint set forth as he
lawfully might for the cause aforesaid The differ
ence between the first and second answer is this
that in the second there is express ayerment OF
the offence viz: that the plaintiff did cheat and de-
fraud Mary Pohl Of $685. and again the truth of the
libel is stated as conclusion from the facts repeat
ed, of the plaintiffs having cheated, and being
charged with cheating, and Of the issuing of the
warrant, the arrest, and holding to ball. The third
clause, or third answer, is almost identical with the
first, the variations being merely verbal and it ends
thus:-"And the said alleged libel, except as efore
said, is fair and impartiatreport OF the proceeding
had and taken upon the said charge Of the said Mary
Pol before the said Justice James McGrath and the
said Justice Sydney II. Stuart, sitting in an open
hearing OF the pf1l m and ID me Sas caat 5fe
| o.
the publication of the said alleged LIBEL being the
publisher of newspaper published in the city of New
York, published the said alleged libel in the
said Newspaper as an item Of public news without
any malice towards the plaintiff, end in good faith
believing the charge OF the said Mary Pohl to be
true, and believing, and having probable cause tc
believe, as well that the statements in the said al
legged libel were, and each of them was true as tina,
the said libel was and contained fair and impartia
report OF the proceedings had and taken before the
said Justice James McGrath and the said Justice
sydney Il. Stuart in manner and as herein before
stated" Fourthly, the defendant, as to all the
said alleged libel, and as mitigating circumstances
on his information, and belief alleges He ther
proceeds to set forth the proceedings Of Mary Poh
before the Police Justices beginning on the 2lss O
May, 1858, her charge, the warrant, &c. Some adj
ditona facts are added as having been contained il
her oath before Justice McGrath, such as promise
to return the deposit book, and an admission of moi
having deposited the money in the Water street
Bank. The contents Of the recognizance are alst
set forth. The answer then proceeds:-"And further
on informetian and belief the defendant says tina,
the plaintiff did in fact on about the 18th day
January, 1868, by false and fraudulent pretences
induce the said Mary Poll to intrust to the custod,
Of him the sum of $eS OF her moneys, and that the
plaintiff cheated and defrauded The said Mary Poh
out OF said moneys That the said alleged libel was
published, intending the same to be fair and i'm
partial report of the said charge and of the
ings thereon and in SO far the same is at variance
with the exact facts of said charge and proceedings
thereon, the same was tho result of accident
and not intended to injure the plaintiff. That al
tie time Of the publication of the said libel the de
PENDANT then being the publisher of certain newspa
per, called the New YORK HERALD, published The
said alleged libel as an item of public news and
as report of the proceedings on said charge
OF the s1id Mary Poll, and without any
malice, and in the bona fde belief that the said
charge was true, and with probable cause for besv
ing the said charge to be true, and that the plaintiff
was guilty OF the offence wherewiti he was CHARGED
as aforesaid, and in the bona fide belief aud with
probable cause for believing that the said alleged
Etolx f,s- ,,Sx.xo
ings." The analysis of the answer, is this:--The
allegations in the libel, and the charges made
against the plaintiff all true, with an exception
which is iIninaterial. The defence is therefore alb
| solute no matter what motive instigated the publ
cation. Again, that the charges were made under
oath, in public court of justice, and action of the
Judge took place upon them in presence of the
plaintiff which authorized a reasonable belief that
lie accusations were frne and 40 helieuin then, b.