The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-29
C@naon xsJras-Special Tevms
9afoIBY vs.. POND ON 4 MOTION TO srMEy >
YARrS or ANSWAR.

Common kye03-SrccloI T6rUns
safDLBY vs.. POND ON a MOTION TO sranEg -
PANTS or ANswaR-
wooDAurr J.--rbe xor,is supposed" add ID
~ all" M thar part OF the sn-wer hch purports 20
sci up justification must be str ken out; they ac
unnecessary aud imp rtineot. Under our forner
system OF pleading the speaking VI the slanderons
words lustlhed mnst be admtied and IL the rule OF
the code that whatever Is not denied In ths answsr
words Of admission, stil i is unnece ssary anain-
pertinent TO introduce words which exclui0 The
idea Of any such admission Of the fact Of syeahspg.
J. am not prepared, Notwithstanding severaJ H.
sions in this State TO that ee ~ 10 say that when
defendant ID called upon oath he must n
terms admit what be believes to be untrue, or he
preciuded from showing the truth Of this words
which he 10 charged with speaking. Bus.ln the form
In which the present answe is preferred, think
the employment OF terms which exclude aiminjDn
is Objectionable, and the answer must in thSfe-s
spect be amended. perceive no obje, ton 70 the
terms, las charged against him iu the plaintiffs
complaint, and none Is suggested 90 the plaintiffs
points. This part Of the answer Is, no seyer clearly
Objectionable in another partcutlr viz that II set5
up the facts intended IN he proved both ~ constu-
ting theft and embezzlrment Now, embezAlemelt
is not theft, and should not be peaded jus,ii-
cation of charge ri stealing. + cts amounting 20
theft would no doubt justify all the words charged
NJ me complaint, but mere emDezzl-men. would not
In this respect the ans~er ahould be amecied, 80
that so far as the defendant means TO rely upon
facts amounting to embt xzieaent merely they may
be made TO- justify words which ~ be Justified -
proofs OF enbezzlement; aud 70 far al She defend.
ant Ielles upon facts am uniting +, lsroeny, ths9
may be set up % justification 10 ali the words al.
legged, because all the worsIs would be Justified bp
proof that the money in question was stolen BY the
defendant. Thst portion u ,he ans yer whon sels
up matters In mitigation ID liable ~ the Same OBJ
ectioD, so far a. 1t ntans TIE hypothetical WORKS
IF at all, In reference n TIE sakng of The words
II II Is to BE- rzaried As in he nature Of plea in
bar; but this is not 3d. IL l. rather in the nature
notice under TIE former gene al issue; 1t ~ not sud
does not purpOr To be full dcfnce, and could not
be demurred to as sucn; IL caonot, therefore, "a
struck out unless clearly irrelevant or tmperlnan.,
but abould be suffered 70 stand till le trial. when
the admissbihy of evid. nee offered 10 mitigation
VIII properly be passed upon. The office Of this
portion Of the answer il IN Mpmi4e the plain
tin what the defeno an, will ohrr in evidence,
and the purpose for which he will offer it. II
does not follow that it must be received be ausc
the defendant sets IL up. No issue can be taken
upon it. In this view the PRECISE form Of ihia
portion Of the il imnateril Il; ii 1t does ros
sufficiently apprise the pla'nIif al the matter IN
fenced to 10 proved in MITIGATION, the evijene Eil
b. rejected il Is dOes then II is il this resp. ct s
Gent, not being introduced into tile answer al g
plea in bar, but rather AZ an ex use for speaking
the words, which, for the purposes OF the excuse,
he d,es not claim 10 be true. and only allowable
nnder the general Issue before the code; il Is no
part Of ITS ofioe 10 admit or aeuy the speaking OF
the words. Although j, may h. doubtful yhether
the matter thus set up in mitt alton do not In some
slight degree tend TO ox The Truth OF the words
spoken, they do not show the ruth OF those words
30 far az they impute crime. They are consistent
with the enlh unruthso all the -)anderous imputa
tons; and yet, except fur they tend show tae
truth Of the words spoken, dnes DOT appear 10 Iae
that they are relevant vt ALL do not understand
the code to have altered the heretofore We'll settled
rule: that circumstances tending to prove tho
truth Of the words spoken cannot be given 10 eyi-
deDce In mitigation, and. II Dnr then this part Of
the answer will be OF avail 60 the defendant
Nevertheless, it il better for all parties that this
question should stand TIL ,he trial. cannot say
that the m liter set up is cle.ry mperinsnt taG
1t should be struck out ON motaou. A ruling upon
the offer of the evidence be more SUITABLY and
conveniently reviewed, aud error viii be tho
oc. aston Of les5 inCOn veneUce. The motion being
granted in part, and De- led in part, costs win
be allowed to either party on this motion.