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

proceeds on the hypothess, that whether true q ,
e. saps sSsS 90 q To- the s onss e
sidered by the jury to lessen the damages appre-
hend then, that the code (sec. 1859 has broken In
upon the rule, which is stated In Cooper w. Barber
IA Wend., 1917 and other cases, that evidence |
going only to damages must be such as admits the
charge to be false that IL it tend TO make out JUS
tiHcation and fall short Of the mark, 1t is inadmiss
Bile as to damages because i does s not ADMIT Inc Inc
cIared in Chalmers vs.. Shackle, &c Car. Payne,
AIS y now prevails, viz.-That if justification Is
pleaded but the evidence falls short Of satisfying the
tin vet thew may take the facts into confederation
In estimating the damages. Nor do see that
there exists sound distinction between O justin
cation Of the publication resting upon its BENG
privileged, and one resting upon the charges being
true. cannot see the good sense or sound logic OF
o rule which prohibits defendant from urging that
although the evidence he has adduced cannot legal
" warrant substantial conviction for the crime
charged yet it SO closely approaches to to free
the publication from that imputation of malice,
which without such evidence would attach to it.
At any rate, until otherwise instructed, consider
the code as permitting the Of the testimony for
such purpose. 1t is obvious that this proposition
Is widely different from that Of the admissibty OF
mere rumors, or of general bad character and
opinion Of Baron Wood was directed, in Jones vs..
Stephens IL Price, 235. With these views am not
able to say that any part of this answer is irrelevant
or badly plea died. But It is, think, redundant IN
prolixity and repetition in setting out what may be
pertinent. Ii is D wise rule to discourage motions
Of this nature More trouble and expense is caused
by them than benefit is obtained. But l may not
refuse to test the present answer in this particular
1t appears to me that one statement OF the facts,
such as il contained in the first answer is sufficient.
The second answer should then be set forth In
manner like the following Secondly, " And for o
further cause of defence the defendant alleges, and
sets FORTH that the 18th day of February, 1853,
the plaintiff, at the city and county of New York,
by means of certain false and fraudulent pretences,
cheated and defrauded one Mary Pohl OF sSs, the
money, goods, and chattels Of the said Mary Pohl
then and there being and further that the facts
| and circumstances touching the office and Az
| thority of james McGrath and Sydney II. Stuart
| severally, Justices Of the Police in the city Of
New York, and the proceedings he'd and taken
stated are true, and were had and taken rs herein
before set FORTH and further that all and singular
the facts, &C., taking in the remainder, including
the residue of the last clause Of the second
to the word aforesaid. " The third answer should
be headed with similar statement as to the pro.
ceedings, and then the passage at fol. 20 p. II
should be transcribed with such words as-and the
defendant further sath-to the end of the third
answer, viz the words herein before stated, on
folio 80. The fourth can be modified in like manner
retaining the first four lines-adding the above
clause referring to the proceedings before the JUS
tees, and retaining the answer from the words
and further at the cose of page l6 folio 40. The
result is that the following passages Of the answer
must be stricken out as redundant from the words
"and afterwards on the 18th folio Of the answer,
to and including the word "behalf" on the 10th
folio thereof. Also, from the words that or" on
the 10th folio to and including the words that
behalf" on the 2Sth folio thereof. Also from the
word /" that on the 3lst folio thereof to and in
GLIDING the words without leave" on the 40th
folio thereof No costs of the motion to eitherparty