The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-09-17


him in 1S41 the article in the Times and Evening Star that
some person published anonymous pamphlet against
him. that he had been logged by six persons for his
editor that the London Times copied the art
cles Of the HERALD that defendant had documents from
Paris showing that Revolt committed . crime; that
Mr. Galbrah, his attorney and counsellor, had sworn
falsely in affidavit in another matter that the plain
tiff had published certain comments after the decision OF
the cour. grang new trial in ys Gaze against Hen a
was that he could not get satisfaction from the courts
and in conclusion the states that n case said
forth do not amount to full justification, the deteud
ant will give them in evidence as mitigating circum
That is the defence set up, with great deal of amp
cation and repetition Now, let see what are the
rules Of pleading applicable to such They are
l. That though justification and mitigation are both
Of them defencesone total and the other paral-and
may both be set up in the same answer, as has been
held by the Court OF Appeals in the two in Herman
s p. 353 and I'd p ely, yet they must be separately
stated and must refer to which they intended
20 answer ule s7 and il not SO stated all Of the an
not relevant to the first defence must be stricken
out Irrelevant
This follows from two First, that party shall
rule Of the Court and shall not the efore be heard to
that he has set forth than defence, where he
two offences to be blended both should be complete
and everything stated should be relevant to both And
the Courts have ruled see Howard Practice Reports
q Whatever be the defence nothing relevant to that
defence which you cannot be allowed to prove on the
trial in support oft.
This 1ule Is applicable whether the answer sets up
a justification or mitigation, or BOTH If for instance
you consider it as Justification and anything in this an
cannot be proved in Justification it must be stricken
out. So If you consider 1t mitigation, and anything
be there which, presiding at the trial. you could not allow
is nvarabe rule law that whatever be the defence
nothing can be put into the answer which cannot be
proved in support oft.
81 Then comes another rule by no means the conve
Of the last that though cannot put into answer
thing which you must not prove are not at lib
ery to put into 1t everything which you might prove
must not in evidence of facts, but must put in
the facts themselves Whenever therefore, defendant
inserts in the evidence of fact which fact
should constitute defence instead Of stating the fact
ITSELF statement Of the evidence must be stricken out
the law only allowing the facts to be stated and not the
A. No fact should be stated which not materia-that
is essential to the defence or, in other words which
fective in substance and insufficient as defence
pleading is like chain every link OF which Is essential
and any link being taken out or broken the chain falls
Whatever fact therefore, is inserted in pleading OF any
kind, must be fact material to the Of action
to the defence that fact drops part of the
Of action defence drops with it. The fact must be
essential to the For example In this Of
the charges against Mr. Bennett is that he drove weak
minded man to commit suicide. When the defendant,
instead Of averrng that the statement Is true that the
referred to such one, that at such time and
by such of conduct-mentionng 1.-THE plaintiff
dove him to commit suicide when instead Of doing that
the defendant puts into his answer letter from cores
pondent which, the learned counsel argued yesterday
be the resuS The goes jury and no such letter
is proved. Does 1t follow that the defence fnils This
shows that it is not essential issuable fact whether
correspondent wrote such letter but the issuabe fact is
whether not the plaintiff drove the to suicide
That to be determined by the jury, and is the
TO be put in issue by the pleading
g. Repetition is redundancy. fact once stated in
O pleading, must not be repeated.
8. This brings to the last rule which shall men,
tion and that Is this: the partial defence Of mtiga
ton to be made in this facts could be stated
in the pleading introduced in evidence except such
the plaintiff is bad that at the time of publishing the
libel the defendant had knowledge Of facts tending to
him he shsTS be sha hs
Howard, SO, 1925 Herman, 361; Herman, 1877 Com
report of the truth Of the fact cannot be given in
evidence, the fact that he-the hbeller-was so
sSen evidence Wend .
Judge Bosworth-Not in mitigation of damages?
Mr. Feld-No sir; not even in mitigation of damages.
have stated.
and Sea Of good standing and credit-told him
that to his own knowledge this man had done and
that he believed the statement to be true and that there
FORE he made this charge in good faith although it was
not true-would not that be good in evidence in mtga
tioni
Mr. Field-No, sir man who circulates report to
the detrment of another must prove its TRUTH He can
not give the report in evidence in mitigation For
pie, one walking down Broadway in the morning
says to anoher-"l understand that my neighbor A. b.
failed yesterday"
Judge Bosworth-But suppose he says that A. B. did
Mr. Feld-very WE'LL that is still stronger. But
If he says ~ understand so and so, and If the
libel he cannot give In evidence in mitigation Of damages
that he was told by such an one that his nehbor had fail
ed. The authorities very carefully considered what's
admissible in evidence mitigation and what is not, is
well settled Reports cannot be given in evidence.
Judge Bosworth-I supposed that was so but also
supposed till now that information repeated such
could be given in evidence-I must confess that cannot
the reason why, matter of common sense, il
tell in confidence that third person was caught last
night in company with burglars breaking into my house.
and you repeat my statement and are sued for it. say
do not see why, as matter Of common sense, you
been told so by II seems TO me that when come
to the question of malice such proof ought to be allow
ed 70 show that there malice.
MIR. Field-It might at FIRST sight appear but the
proofhas been rejected on much consideration for the
suppose that i. would introduce greater mischief
to allow TO screen himself by the information OF
another than to hold him fully responsible for the truth
Of the information If he repeats it.
Judge Bosworth-I also supposed that it was not
enough OF itself TO prove that particular person said
and but that you must prove that OF candor
and character has made the statement, preliminary
Mr. Feld-It very true that the fact OF having the
information qualities the motive OF person in making
reason have stated. To admit the evidence would prac
ticay deprive the party lsbeed of remedy, bec.use
you one he may he got the statement from another
and when you that other he would refer you to third
and till the party belled could get satisfaction at
all But whatever may be the Of the rule the rule
itself stated with great cstnctness in late case in the
den, in Bush against Proper, q Herman, 1907 what
canno, well be denied, that affirmative proof Of malice
the verdict in where such proof is necessary
maintain the action, il inevitably follows that il the de-
endan show that he not actua ted by any mali
cious motive he will thereby mitigate the damages and
that he must be permitted to give evidence for that pur
pose. 1t s clear therefore. that the defendant has a
right TO prove the absence Of malice in mitigation Of the
verdict and TO do this it OF indspen sable 10
prove that he believed and had believe
the charge TO be true when IL made But how Is he
TO make this proof There but two conceivable
modes Of doing it. One by proving that he had
received such information from other persons
as induced him to believe the charges TO be true:
the other by showing the existence Of facts and circu
stances within his knowledge calculated to produce such
belief Repeated efforts have been made by defendants
TO avail themselves Of the former Of these modes The
general doctrine being conceded that defendant had
right to repel malice for the purpose Of mitigating
the damages there plausibty least in the posi-
ton that he should be permitted 10 show that he had
been led into honest belief OF the truth Of the charge
by the information he had received There has been
much fuctuaton upon this question in the English
courts But in this country the evidence has been re-
jecej for, as appesrs TO me, the soundes reasons II
has been long settled IN this State and In
well rnost OF the otter Statss that although evil
Ia as,fa La ~