New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-05-22


. The nw does not presume that the party making
the comm unicxiions has good motives, peaks III,
Truth. but proceed upon the possibility OF t'e eN,;
enee of both.
q To maintain ~ action in such ease the plaintiff
must 20 further tbha merely prove fse words which
are Objectionable pr It must appesF that there s
malice The motive N be proven = malice tis
motive of the malice te plaintiff not bOand % prove
4 Malice being essential ingrediers of -laBl'r
md libel the falsty Of the words created ne pres imp
ion Of IT alice and the falsy Of the words be
pretumed in the abs nee Of proof of their truth.
II is not denied in this that the seg "a SIAN
derous Language was used by the defendant and
The faIsty being presumed it could not be maintained
either in law or morals that could state what be
did not believe 10 be true with good motive. with
cut malice.
6. In the case- cited by the defendant counsel to
illustrate the position with reference TO privileged
communications the occasion fitting for tn utter
ance Of the language and il became the duty OF the
pn;v 10 state the facts. In this the occasion
bot fitting onehe defendant going out Of his way 10
state what Ae did.
&, the defendant on account Of his relations to the firm
If Nes-rs Wood state the facts he did tO that trn
by letter and y Of The partuers but the facts assert
ed in the communications were Inconsistent with the
abatement. contained in the letter If the defendant
irdorsinC the plaintiffs character and also the state
ment made to Mr.. Carter, which Inconsistencies could
OILY be explained by the presumption Of malice.
In reply To Mr. OCohor, Mr. Evarts made a brief
closing argument the points OF which follows:
l. There is not necessarily any Inconsistency in the
two acts Of the defndant, h. might no, have sus
peeted the dishonesty Of the plaintiff until after the
letter ind, IsiBg his character had been written.
. The plainif had failed 20 show Il malicious 2
Int has ateu pied Ia draw malice from the conmuni
tiOn instead from m act Oulde of It, There NUT ne
mn act ard fact thSt brrahrs malice Itself, ant not
az fac, Ia, by It's spirit breahes kindness and
coed f,eiig.
The Court rendered is decision the motion to Dis
mis-, a. follows:
II Isno Part Of my purpose, nor would II be ale
81. Lilo.
cbly exhibited by he respective counsel # the inter
Irriaiiun which may be gwen 10 this communication,
which is alleged To be- slauderou.. OF tn previous
Gets which relied upon ~ proof OF the malice
on tie palt of Mr. Bowen or are not sounl; It
Is simply the duty Of the Cont in disp0sing of
the present motion Ia consider whether the
case made GU by the plaintiff is such
one ~ makes it my duty submit those facts to
the Jury leaving the counsel to urge upon them q
they may be able their respective views and leaving
the jury TO adopt the views Of either a. they may
in their Judgment upon the evidence ma 10 De JUST
In dspo-rg If This motion shall therefore pass over
the inquiry whether the words are Objectionable
in Themselves, 10y reason of their own proper force or
hyreasCn Of their application IN the conl elton IN which
they used Ia the particular business or employ
n,nt of the plaintiff by saying without entering INTO a
detail which may be necessary for the Court 10 do IN
the further prugiess Of the tial am Of the opinion
that there qucstiOns of fact connected with the
subject la submit to the jury if the other ground ut the
defense fail and in dsposiug of the notion therefore
| shall assume this To be privileged COMMUNICATION
NY purpose thut invited the attention Of counsel to
;hc inquiry whether, being privileged cdnimunic+-
ticn there TYtmG t0cie evidence that thH words
spoken wee false and were malciOuSly spoken. 10
the Court that the very basis and ground upon
which the claim that unicatlon l. privileged, pro-
cecds upon the distinct idea that the letter which was
assigned the excuse for the words spoken, without
the application Of the person to whom they were ut
tered, were inconsistent with the communication
which the defendant deemed it his duty to make md
that if the Court were in position TO say as matter
that there nothing in the letter which was incon-
.stent with the words complained OF; bur "a
they do not raise reasonable question IN re-
gard 10 the belief of the defendant OF the truth
Of what he was then SAYING, IL would be my
duty 10 take the other view OF the subject entirely
and say that the communication was rot privileged at
ALL and there fore when to the letter Is added the
further fact that at the time when all the experiences
aud acquaintance which, so far a. can be gathered
from the evidence, the defendant, Mr.. Bowen had OF
tie character Of Mr. Fowes the plaintiff in reference
to the truth ard vcracty, entitled him 10 confluence
founded so far ~ confidence may be founded upon
truth and honesty, that. not only strengthens the posi-
ion not only strengthens tn representation winch was
made but II relieves even the argument when -
drawn from the letter -el as having been gwen and
psserted to impulsiyry and under the tirt" m'ug'ng
kindly spirit 10 the young man, and shows or indi-
cater in some degree greater OF eso-the extent Is not
for the Court 10 sayhat upon dehbera'lon, upon an
application in which third party called upon them
and received the accommodation wnlch uey ndd
given a voucher Tor the Illness u me young man
whom he was about to recommend. 1t seems to me
that in the face of these two acts lndofsnS the chsrac
ter If Mr. FOwles it is impossible for the Court to say
there is nothing for the jury ~ pass upon, and that
must conclude that these two Inconsistent acts on the
pant Of this defendant should DO left to the Jury, and
they be permitted TO draw such nferepces from them
AZ the counsel with the aid OF the Court, may afford
must therefore deny the notion and let the case 60
to the jury Attempted applause, which was sup
pressed by the oiicersl. 49, -
On hearing this demonstration Judge Woodruff re-
marked that he might well say now that H. would
strpI dom
stration in future if the makers could be dicoyercd
This was Court Of justice, unniluenced by fear or
favor, and with wish to sfoid or 10 seek applause
No higher offense against decency and against the
Count could BE- committed than applause ana none
would be more readily punished.
At this point the COuIt aC oumed TIL the morning at
II o'clock, when it is surnSed that Mr. Bowen mn
self will be examined under the new law, although
MIR. FOves was not.
SUPERIOR CoURT-srtcraL TsRs-a" 2L-B'0''
JudS. DrER
Joseph 7. Crosby agt Simeon Nichols-Mo'ion de-
MED with costs
UNITED STATES CIRCUIT CoURT-MAy 2l.-befOr'
Judge kGEssoLL-
THE sLAyERs INDICTED.
Tn. Grand jury brought in indictments to-day
against jose Soutos yncen, Bee Casper NJ de- CanhA and
Thos CosD of the Merchant for lifting her out "A intent -
CAPT Swift OF the ship Andrew Foster, was tried on
indictments ioI assault with d.nseru' aHu
for cruel aud unusual punishment and s'il
sURROGATE'S COURT-MiY H.-Before the SURROGATE
QUESTION WORTH LOOKING AT: ,
The estate Of Patrick McLoskey was before the
snS,e veerd,y on the snail accounting Of the executors
John ResG and George Westtsltt. -, OIL - r,r.-v
Patrick AcLokey died in France. on ne BIO o.
1884 saynz holog aphic will executed IN rance ~ ~
snce with French law The viii admitted 70 rtooa.e ~
the County Of New York April 1880 as WIZ PyI'n.
estate only By be dispo-s Of nl'' "o''a VI Pei'
property. ,,.,.I ., p,ob.,. h.,s
The executors. upon the viii bring admitted 20 ftooa.e e
paid eacies amounting $4,000 immediately u'H 'nsH SP
poiunent ,,t;,i.i,,
The r.,idusry leeo,ee. claim that Thy ar