The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-10-06

exception DamDh-
LET article mentioned in previous part the answer
IL is very obvious that all Of this matter is irrelevant
for any purpose.
Nineteenth Greenhouses much of the matter of this
states that defendant further saith that il is true
the newspaper called the Lon Ion Times eager
copy hing derogaory to America from the Amer-
press and always found the journal OF said Ben
nett Scotch vag sbond, an ample supply Of such
teria y Il not irrelevant redundant 1t rges tho
truth OF certain contained in the article COM
planned Of in terms as broad If not substantially denu
cal with those there used But does not profess to be
to such statements only. II this matter pur-
ported to only corresponding part of The
plant, not good and sufficient it certainly could rot
be deemed irrelevant or redundant. The only defect II
any, would be that it not sufficiently definite and
certain IN that it did MOI specify or refer TO any matter
But is parcel Of an entire answer the whole libel
ions article complained Of If it be urged that it is
70 g as 70 indicate with reasonable certainty what
part o. me complaint intended TO answer that
argument would assume that such part
contains substantially distinct cause Of action If
there DE IN such view il is obvious that every
distinct portion Of the which ia intended to set mi
defence to only particular Of the beous article
should refer to il clearly to distinguish and dep
tify the precise part IL was meant to cover.
It might be perfect such part but AZ part
OF an answer to the whole complaint 1t might be held bad
demurrer.
libeuous article may ch rge plaintiff with being
thief, o,ger and public vagrant An answer par-
only sets up that he thief and the fact or his hav
ing stolen stating properly time place and the subject
Tor insuicency lift purported, and, by it's TERMS
tempted to only much Of the article imputed
parts Of the complaint alleging that the defendant falsely
and maciousy wrote and published Of and concerning
she pann sha' ne haa peeh guty q forgery and Was
defendant would not only be precluded from giving
evidence to show that either OF those charges rue
but perhaps he would be precluded from giving evidence
to mitigate the damages account of having made such
charges That would depend upon the question whether
matter in mitigation be stated In the answer
order to admit proof Of it, The jury that tried the issue
as to larceny would such damages however they
might dispose of the issue Of fact
mo
and certain by referring to the part of the libel il IL in
tended to answer The residue of the matter Of this
ception Is clearly irrelevant, 10 merely gives
tract from the Herald of July, 1887 TO the effect that
the London Times copied largly from its columns
Twentieth excepton.-lhis gives an extract from tina
HERALD of October 1857, commenting the favorable
effect that would be produced in England and France by
the publication of what 1t called the solvent list. This
is clearly irrelevant
rwenfy6rst excepdon--This, in effect anims that de-
PENDANT had obtained certain authenticated documents
from the Paris courts of justice proving that witness,
when dep" son taken and used in the OF Fry
vs. Bennett and named in the article complained Of had
been guilty OF certain misconduct This is irrelevant
whether proved not it cannot affect the right OF the
plaintiff to recover or the amount Of the recovery
Twenty second excepton.--1his begins thus "And
the defendant further alleges that the words ombs
pettifogger who had the risk Of being domced at
ns Oh then os N saa a
person whom it names, but who not named in the
article complained Of arrested charge perjury
what proceedings were had thereon, &c.
This is irrelevant and scandalous Irrelevant neither
justifng mitigating the libel upon the plaintiff for
ing to third person crime not necessary to be proved
to make full defence TO this action and proof Of which
cannot effect the damages which should be awarded
to the plaintiff in he RECEIVERS.
Twenty third exception.-The matter Of this
rious extracts from the HERALD commenting upon the
trial Of Fry Bennett the subject matter OF that suit
the grant OF trial. and matters relating thereto.
The fact Of publishing such comments neither tends to
justify or mitigate libel upon the author Of them They
Twenyf fourth e1ception.-This in substance states
reasons among Others for publishing the article
cOu 40 q
before set forih-that neither indictments public fog
gngs civil actions induced him 10 change his
but ON the contrary, furnished him fresh topics Of rd
Guile and abuse and made his paper SELL and believing,
under the circumstances that defendant had other
and that second suit for the beis him would
last some six or seven years he d! as matter OF self
against him BY allowing said bes to 60 unanswered
aud matter Of history and reply TO said additional
the public believing the statements therein to be
true, and the comments thereon to be just, and
warranted by the occasion, and published il without
believing that said Bennett had any character that
could be injured thereby.
This forms part of good plea Of justification and
contains no allegations "of facts circumstances"
which tend to mitigate There " no fa:ts cir
cumsances" stated which the law recognizes as sun
eient belief Of the truth Of the bels upon
the plaintiff, or as tending to show absence Of malice
Certainly the facts, that second suit for fresh Ii
bells would last six years. and that he be-
ieved Bennett had any character that could be
injured By the article hsn he published concerning him.
Twenty-G exception-Ths has been already copied
herein, and to the effect that the OCCASION facts
circumstances do not amount to Justification they will
be given in evidence in mitigation. This is proper
mode Of pleading The rules applicable TO this branch
of the case have been stated.
The Of all the exceptions except that Of the st
9th, 12th 14h, 18th and 10TH must be stricken out
These six must also be stricken out unless the be
amended to make with respect the matter of
them more definite and certain.
The defendant will be allowed to amend his
he may be advised. The amended answer should be
drawn that it may be manifest what part Of it is nend
ed asa full answer or plea IN bar to the whole complaint
and what part is intended as an answer to only part Of
complaint it Ia designed to answer.
On being SO amended any part Of the answer which At
can be tested by demurrer If IL contains irrelevant
redundant matter which ought to be stricken out may
be corrected by motion to expunge
The facts and circumstances which the answer may
state will be proved TO reduce the damages should be
stated separate and distinct from the allegations de-
signed to present full defence. So far as they nmy
consist Of portions Of the facts relied upon . full de-
fence, they may probably be distinguished by refer
ence TO previous parts OF the answer a. to make epe
tition unnecessary.
If the complaint had been in the form of . de-
claraton prior to the code than is would leave less
apology for such an answer the present Such de-
caraton in addition to other matters usually alleged
after stating the belous publication that the defend.
ant thereby and then and there meant that the plaintiff
had committed the offence of forgery or larceny as the
might be.
be belous is set out at length without any specification
OF the offences which, the plaintiff constructs IT, the
thereby intended 10 fmpute 10 In
most 1t Is easy to state, reading article,
what offence miscono uct II imputes
In the present case it is easy matter to perceive
that misconduct Of certain character charged but II
il not to determine accurately how many distinct
imputations made either Of whichif all the others
should be justihed-woud render the article bellous
defendant, in answering such complaint, must be
advised by great professional skill and experience to be
morally certain, that his sets up defence to
every distinct ibellous imputaon, which the plaintiff,
at the trial may successfully insist is charged by the
article complained Of
" the defendant distinctly apprised by the com
planan what offences misconduct the plaintiff
srues the beous article 10 mpute and intends 70 insist
at the trial that the defendant had thereby accused him Of
the latter might safely rely upon which i would
be unsafe to risk 20 such complaint the present
Although an inuendo cannot enlarge vary the sense oil
the previous words and in would be surplus
age yet II will sometimes limit the plaintiff in his proof
to show that II has the meaning thereby imputed to IT,
am not prepared 10 that the plaintiff be com
PEELED 10 make his complaint specific In this respect
than II is. II IL specific In this respect
Is obvious that would be less difficult TO frame proper
answer which should be designed 10 justify the libel
An order will be entered giving the defendant liberty