The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-10-06
THE BLACK MAIL QUESTION
An Old Bald Headed Libel Before a
Court Of Justice.
AND A STRING OF OTHER LIBELs
THE plaintiffs IN TIE MAlAk0FF
Superior COurt-specinl Term.


JAMES GORDON BENNETT ACT EDWARD r. FRY.
SEPTEMBER 81, 1855
BoswoRm 1.-THE plaintiff moves to strike out twenty
Ave distinct portions of the answer irreleven
dundant and for such other relief may be proper
The action libel The complaint alleges that the de-
fendsnt malciousy wrote and published and caused and
procured to be written and published Of and
ing &C., "a certain false, scandalous malicious and de-
fsmatory statement" which is set forth at length
The complaint states the publication Of this article
. single cause of action. The article contains several
distinct matters either of which would make it beous.
1t affirms, among other things
!. That the plaintiffs editor drove weak
minded man to commit suicide; and
2 Caused nine other able-bodied to horecwhp him
through the streets Of New York.
8. He formed deliberate plan TO attack defendant
fused him black mail and denied to any of his editorial
or reporting crew the privilege OF the free list.
A. He sought to ruin defendants business and blast his
character lest other operate theatrical managers
might follow his example and withdraw from plaintiff
job Office the theatrical printing the back-mai profits
on whichor profits over and above what any printer
should chargeto the extent Of So 600 to $40 600 year
have built up and sustained and still chief supper.
5. With this view lie published almost daily Of defen-
dant coumns of personal abuse ana defamation, in the
guise of criticism upon DEFENDANTS operate management
and the operate performances
Then follows specification OF statements said to have
the persons affirmed to commonly resort to the Astor
Place Opera House. the conduct of defendant to the
money OF the subscrbers his management of the
in Philadelphia his being patronized by gamblers and
his conduct towards the artists he employed; and that
When defendant appeared before the audience to ad
dress them, it in his avore character Of ape;
and that he was halfstarved musical adventurer, who
could not pay his landady for his board.
g. The London Times, ever eager to copy anything de-
rogatory to America the American PRESS always
found in the journal OF the Scotch vagabond an ample
supply Of such material.
l. Refecting that the repeated horsewhippngs others
had administered bad failed 10 change bis course that
hs avsricous and hesh instincts inclined him to
tinue always the business of extorting money by lies
ISLANDERS and threats the defendant resolved to make
example OF him, and punish him legally.
The article then proceeds to state that defendant sued
plaintiff for Of the libels that the latter delayed
trial the death of of defendants witnesses in the
meantime, trial in December 1853 and the recovery
by defendant of verdict of damages that from
TO two years Of the delay to enable Bennett to
obtain from Europe the testimony OF former employee
Of his, (whose name mentioned which
ofperjury
II then alleges q of proceedings, taken BY Ben
netts lawyers, to gain time and avoid paying the penal
ton was written new trial was granted.
II then proceeds to comment on articles published by
the plaintiff respecting that trial and the grant OF
trial. and also to comment upon that suit the discourag
ing advice he received before bringing it, the difficulties
he encountered in prosecuting it, and his purpose to
TURNER prosecuting IT,
II will be observed that the misconduct charged
against the plaintiff by the article in question: far
it here acularized except such relates TO the IL
bells said TO have been published by him of the defendant
and his conduct in defending the action brought against
him. and in moving for new trial. is confined to few
charges.
The latter include the statements as to the conse
quences of the plaintiffs editor to himself and
to the who committed suicide and TO his con
tnung the business of extortng money by lies SANDERS
and threats, or ievyng black mail,
The answer begins by stating that sit sheweth to the
Court and then proceeds to aiiege various matters oc
cupyng nnetysix olios when this clause occurs, viz.
And in said occasion and the foregoing facts and
circumstances do not amount to full justification, then
defendant will give them in evidence mitigating
cumstances pursuant the code Of procedure" This
extract is Of those moved TO be stricken out and
the twentyfth numbered in the order in which they
stand in the answer.
The only inference which be drawn from the form
terms Of the Is that the facts contained in it
set up full justification il they would amount TO
that being proved and they would not then they
are pleaded in mitigation
party may set up as many separate and distinct de
fences he has, but they must be separately stated II
facts stated justfyng the truth of the charge
answer the part ofan answer which attempts to Justify
the whole article must contain allegations of facts which
fproyed would enttle the defendant to O verdict in his
favor upon the whole record II the answer, any part
oft attempts to justify any distinct statement which
is beous in itself 1t should refer to the part which 1t
is intended to answer that may be readily dstin
guished. Code, Sec. l50 SUBJ p
-, justification, or plea proof OF the truth OF the
libel
An answer, part Of answer which attempts to Jus
tfy the whole of the beous article distinct and
dependent portions Of 1t, which in themselves libel
lous may be demurred II the allegations contained in
IT, assuming them to be true, would not amount to- fun
justification OF the part il is intended to answer Laws
Of 1856, p. 54)
action for Islander libel defendant may al
ege the truth Of the matter charged as deamatory and
'ny mitigating circumstances to reduce the amount Of
Damages, and he may prove the mitigating circum
stances whether he the justification not Code
sec. 1861
defendant prove the truth Of the matter charged
be defamatory he plaintiff matter Of cannot
recover and in such case proof Of the mitigating cir
cumstances could be of no benefit to the defendant
But attempt to justify does not deprive defend
ant OF the right 10 give evidence in mitigation and the
together to the jury and IL they think the defence of
justification is not established they may give such
sideration to the matter in mitigation deserves
Matter in mitigation, under the Code, may be such
tends Ia prove the truth Of the charge
But whatever II may be- 1t must be such as tends 10
disprove any actual malicious intent or in other words
such tends to prove that the defendant believed and
justified in believing what he published to be true
Bush vs.. Prosser, Kern 347.
As action OF libel is one TO recover damages for in
jury to character defendant may mitigate damages by
proof that the plaintiffs general character is bad but
not by proving that he has been guilty Of some other
specific offence vice than the one imputed to him by
the libel
IL an answer alleges the truth of the matter charged as
defamatory there would not to be any object in
stating in the answer that the same facts will be given In
evidence in mitigation. If the charge is proved to be
true in the sense in which and broad II made
fails to justify because he unable prove the matters
stated in his answer he will as to such matters be
equally destitute OF evidence TO mitigate damages
But lie may prove part and only part OF the allega.
tons OF his answer and for that fail TO Justify and
ye; portions of may be proved which would properly
mitigate damages
An in bar Of plaintiffs action must be dire {,
and positive in the facts set forth and state them
with all necessary certainty.
Because the article which IL the subject Of the action
comprehends multiplicity Of matter an answer At
tempting to justify II Is not allowed for that reason 10 DO
any less precise direct in its statement Of the facts ON
which justification Is founded.
Bearing these rules in mind the portions Of the an
moved to be stricken out will be adverted TO- " III
view 90 ascertain whether, taken together they are
pertinent relevant in plea Of justification.
The matter first moved TO be stricken out which for
the sake Of brevty will call the first exception and
which s1rms what the article complained Of does not
assert, viz: that the plaintiff "by his and con
duct while editor and proprietor Of said was
well known 20 be common notorious ibellcr and lar
1.-The residue Of the exception being had esab.
shed and built up said newspaper, In very great de-
gree by bes and by articles written for the purpose
extortiDg black mail hush money also by the pnb
LEGATION 81 ceniious obscene and blasphemous articles
which intended TO create and did create excitement
at The time, under which sad Newspaper would and did
sell and become noorious specifies instance Of his
obtaining black mail does not directly affirm that he