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

name to it, would DO personally liable Tor the costs oil
proceedings to expunge the scandal
The Esd point in reference to the HERALD editor al
on the quashing Of the Fry verdict
When to the SD folio Of the answer for the
time arrive at something relevant to the matter
From the first TO the eghtythrd folio there is nothing
relevant Even this clause is an unnecessary and re-
dundant ayerment, and Is therefore irrelevant in
legal sense being neither in justification in miti
CATION We come then to the twenty fourth part of
the answer, averIing that the defendants card''
was true ana fully warranted by the occasion. This
twenty extract might very well perhaps have been
oere as portion Of the learned counses summing
TO the jury in the case; but to find it offered de-
fence Is Of the circumstances in the
''You libeled in your paper" says Mr. Fry,
and will rely upon that my justification for ibeling
you in any newspaper gain to-" That IL the
principle gravey relied upon and put by the other
side If such an answer as this had been brought for
ward the idea that there law governing plead
ing, and that might in plea heap up any amount
OF hbels could understand why such plea this could
be framed Butt can underestimate other hypothesis
The counsel the other side knows full well that the
law in such PROSTATE condition to allow
such plea as this to be put forward in respectable
court. The short extract of four five lines in this
clause is all that have to enable to conjecture
what portion OF the answer is offered in lustheatl1n
and what in mitigation Of damages. II is uniformly held
that where you plead matter in justification and matter
in mitigation the must be clearly distinguished from
each other you furthermore plead facts, not cpl
thets you may aver the truth of libel but you cannot
stop there you must go and set forth the acts and
dongs Of the party showing him to be guilty Of what Is
imputed to him; is party allowed to crowd plead
ing to repleon with evidence in support OF its aver
ments these elementary principles of pleading that
and yet this of the defendant Fry is drawn in
utter disregard Of them they had existence is
nothing less than fraud upon these well settled rules for
pleader to accumulate fifty sixty pages ofepithets
abusive extracts from rival journals and anonymous
pamphlets in foul mass and then say, Here we offer
justification five cannot offer justification
then offer ii in mitigation OF damages" The decision
in the Of Fry Bennett lays down the rules govern
nf e so Of
e Howard, 15); Newman vs.. Otto a Sanford, $685.
Brown vs. orro 20 Practice Reports, a76); Newman vs.
ua.,t Cadn PAM rtu In fha
opinion Of Judge Hand In the case Of Carpenter vs. West
q Howards Practice, 5s) Summers Torrey Is Page,
50; Bush Prosser, plaintiffs (Kernan, $685. and Bis
Counsel for defendant next took the aoor and argued
generally that the answer was quite relevant.
Mr.. Field asked whether defendants senior counsel
proposed to argue itS
The senior counsel for the defendant thought that
as he did not propose to address the Court the argu-
ment should be considered closed.
Judge Bosworth did not desire to lay down restrictive
rules II Mr. Field wished to make an argument on be-
half Of the aintif he would be at liberty to do
DEFENDANTS counsel did not expect to make an argu-
ment, and therefore did not prepare himself. ;.
Judge Bosworth inquired as to the understanding of
counsel whether the letter OF Mr.. Fry-on which the
action was founded-was to be considered as libel in
totality or as a series Of libels2
Defendants counsel intmated that that was point
which he wished to be distinctly informed.
Mr.. sckles-We suppose that taking the whole letter
in lump it is one libel: them if you analyse it, it may
be subdivded into series of bels So far it relates
to distinct and independent matters there are several
libels.
Judge Boswell-There just many libels there
distinct matters involved, and the proving or dis
proving of which the plaintiff will or will not be entitled
to do not know what suggestion may be made
about 1t, but Mr.. Jordan should hear it before com
mencing.
large as libel without pointing out any particular por-
tons Of They complain Of the whole as libel IN the
R they rely PORTION OF it as
fence will be shap ped on that.
Mr.. Sickles-We regard it one libel.
DEFENDANTS Counsel-Then, if any portion Of the an
given in evidence and cannot be taken out Of the
Mr. do not s mean to- to that every Line Of
libelous 1t abounds in imputations upon the plaintiff
affecting his character and standing in the community,
considering alphabetically regard the whole letter
ibel and when looking on it analyticaly regard
DEFENDANTS counsel then to argue in general
terms that the portions of the which plaintiff
asked to have stricken out, not irrelevant and
Adjourned to Thursday, at IL o'clock A. N.
SECOND DAY.
MONDAY, Sept 13.-Mr. FIELD continued the argument
behalf OF the plaintiff He said-I is not often that
should advise client TO to strike out irrelevant mat
ter from pleading If an attorney so far forges himself
to insert in pleading matter which the law does not
allow think it better generally to leave the Court to
deal with it, and to reject the irrelevant matter on the
trial But where that which is irrelevant is also offensive
where is put upon the record of the Court vehicle
of and to crafty malice-I think it then the duty
the other party to apply to the Court to strike out the
Objectionable matter In this case my client has think
acted wisely in making the application though regret
the hardship which it will impose upon the Court in com
polling it wade through this of heteroge
matter piled up in the answer for other purpose
whatever as we think than TO crafty i'll will against
the plaintiff.
The libel nut forth by Mr.. Fry for which this action
is brought, published while he was himself claiming
redress against the plaintiff before this Court, for al
legged libel Coming here to prosecute the plaintiff for
libel he from the legal redress he is seeking and
takes the law into his hands gratifying himself by
a libel his part gross ever written. He
publishes letter, in which he attacks not only Mr. Ben
nett but all who had any share in the failure Of his
suit, not sparng the Judges of the Court
have said that Mr. Frys libel upon Dir. Bennett
very gross You have only TO glance at it to that
il almost exhausts the vocabulary Of abuse. Among
other things it charges the plaintiff with exacting
ney by threats-evying black mail it is called. The
plaintiff determined to put the ubeller TO the proof; he
brought this action, challenging him to make good his
charges he could What reply does the defendant make
to the challenger He puts in answer under oath in
which there is not single instance given except one,
and that is given without name date, upon the pre-
tended authority OF person deceased Not another
instance pretended. This is circumstance worth re-
membcrng The defendant charges that the plaintiff has
made 1t practice to levy black mail managers of
theatres and others Being prosecuted he does not
venture to that he believes single instance of the
kind but one and in that he dare not give the OF
the party, or the date particulars TO give the
plaintiff an opportunity OF retuting the imputation Bat
Of which y Of later date than 1893, with article
from Mr. Noahs paper, of 1871, and letter Of yr. Wi
kofs published In the Republic in 1914. Whether these
relevant TO the defence the question 10 be de-
cided
In order TO determine the motion before the Court
four things necessary-First, 10 what Is
the libel complained Of secondly TO sec what Is
the attempted to IT thirdly, what the rules
Of law applicable to such pleading and, fecrthy We
to try the by these rules The libel contain
ed in Mr.. Frys letter charges the plaintiff with having
driven weak minded man to suicide and nine other
ablebodied men TO horsewhp him. with having formed
plan TO nure and backen his character and ruin his
business because he refused black mall advertisements,
and putting Defendants 1.-THE HERAiDs dGaches on the
free list with receiving black mail profits theatrical
advertisements amounting TO from si2 900 to SO 900
year with publishing for months columns Of abuse and
defamation; with stating that the Opera House the
resort u gamblers and pros utes and supported by
aisev ~ .xftI