New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1861-09-14

Abraham Van Fechten, and others.
Mr. Grant for defendant when the case had been
called on the calendar, suggested that account Of
the absence of 30 many witnesses, the cause be
set down for tomorrow; they weuld all be ready,
doubtless, for tomorrow, and 1t would be moro
venient for ALL
Mr.. Foster, for plaintiff asssnng, IL was so ordered;
and cause set down accordingly.
TUESDAY AFTERNOON, Sers. 10, 1861.
Gaze called and Jury impannelled.
Mr.. Wiams-If your Honor please, suppose we
have the opening.
Mr.. Foster-I suppose not; the question Of damages
at least s concerned here and Of course we have the
opening
MIR. Willamette criterion Of opening. If your
Honor please, Ia, who has the affirmative The an
swer in this case contains not syllable Of denial of any
kind or character; the question Of damages is always
concerned in every such case.
The Court-Is the publication admitted by the an
swerf
Mr. Misunderstanding Sir the answer contains
not one syllable of denial of any kind whatsoever.
The Court-The rule on that question is settled,
believe; when the complaint is all admitted the de-
Tense has the right to open.
Mr.. Fosier-That, believe your Honor, Is confined
to cases when the sum to be received is specific, and
the plaintiff, therefore, has nothing to do; and con-
fined to those cases alone have not examined oil the
authorities ia reference to tbs particular because did
not suppose the question would be mi ed but ieeten-
tirey confident that in all where the admission
IL made that fact does not give the Defendant the al
frmative.
Tie Court-what would be the object Of thisi is
there anything for you to prove :
MIR. FOster-No, Sir; nothing AZ all.
TIE Court have never known the question raised
in an action Of this kind where there question OF
damages Generally, where the cause OF action Is
admitted, there IL no controversy.
Mr. Foster-We think that in the opening OF this
case we have to meet this libel to the jury and how
Is it to La doue unlcss We are to DO III
Mr.. Williams-Eyery liable Is in the pleadlngs;
eye,y alleg ton in the complaint IS admitted. NY
learned friend on the other Tide will ird Impossible
10 put bis hauds upon case which confirms the STATE
Inent be has made.
Mr.. Fosier-I can find an abundance of them.
Mr Willim5-You will not find one III this country
or ia England. w.,
District, when Judge Smith gave the opinion, when
the question arose and be allowed the painful the
opening; but on an appel that decision reversed,
and the Supreme Court held that 90 WAS in error to
allow il. -
Mr.. williams have a cgse herein the 9TH Of
English Equiiy-a care brought for sounding damages
and tic Couft rays: " The test 10 determine the
order of beginning trial, il TO consider which party
would be EMIT led TO the verdict supposipg no evidence
MIR, Fossef-I undertake to cay that can fud capes
Of our own if have time am very sure my friend lie
mistaken.
MIR Willams-I think bave looked at all the
case. and Am quite sure there Is no such my
learned friend seems 10 81 ink.
TIE Court.I am sorry this question had not at
tr,cted the attention of Counsel efore.
Sir. MaTsh--PcrhAIs your Honor may be relieved by
the fact that the pleaCDs DO not ndnt all the alega
tons TIE gentleman states that We aver that the libel
was upon MIR. Lelohn and OF bis particular conduct
while hs third and fourth answer syers that they did
publish ss stated, but they do not admit the alie alon
that then refer o. aud spoken Of Mr.. LittleJohn
in his individual cnpacity legislator; but say they
were spoken Of legislation. know ttai on motion
once made IL this care, my learned inehd commended
any rate be has not admitted all the allegations IN bis
anfwer. may a. well read them.
THE counsel here read the third and fourth answers
Z, 'ri.adiuvu already pnLl-hcs
~ hT. WiliAIns-If your Honor please, all aduIis.
sions are admissions by silence III tine peadingsi and
not In - many words accurate yet tho Code provides
that everything alleged IN the complaint shall he
deemed 20 be admitted which j. not denied IN the an
aver In ths answer there j. not q syllable Of denial
We have taken the affirmative on eyeEy point. We
have not denied syllable, but we have taken the
burden OF proof directly upon our shoulders. gee
nothing In what my learned friend has read 10 Justify
tie sttiement be- made be.oTe lie commenced reading.
I submit TO your Honor at the case We have pre-
eented in one where tic damages were not fixed; but
il that were the criterion Of damages IN tbs case,
Judging from the plegdugs, they might DO tald 10 be
Gyd Tor the rainti saws he has suffered damages 10
the amount OF s2j CO., aud we don't dispute the fact
Tie Court don re hos there lie any evidence to
be given in tis by the plaintiff aud there was
none 10 be given on other eide he would undoubt-
edly obtain verdict. Even in u case on promissory
note there would sl have TO be computation Of ia-
terest.
Mr.. Foster-H your honor please-If we show the
authorities, will you give us our rghisi
The Court-M0ft certainly.
Mr.. March-lf the gentleman will take the benefit
Of what he says, We will take damages for $4,000.
Mr.. Williamf-I stand on the pleadings
Mr. Sedgwick-Why, we should then be at liberty
70 20 on and give evidence; there IL no possible eYl
dence upon which you could give $21,OOO-no possible
way Of taking judgment Tor $4,000.
Mr. Williams--It is very easy Tor the counsel TO
mninuin that thoy could prove facts not contained IN
the complaint; but they do pretend that any thing
IN the complaint is denied.
Mr.. Sedgwick-Do you pretend that we could take
verdict for -, 900
Mr. Wilsml-That IA not material in the Gaze at all;
Won have nothing to prove If we cit here and say
Mr.. Foster-we could prove other publications to
show express malice to enhance our damages.
The CouIt-What! not under your present COM
Mr. Foster-Certainly; there is no doubt Of that.
MIR, Wiiams-It would be impossible for them to
prove malice beyond what Is set forth IL the complaint
every syable VI that stands il were to stop now,
and they we're TO give evidence; you cannot Prove
what YOU have not ayerredi the Court Of Appeals
have held that. "
Dir. Foster suggetted that If the Court would take
recess tie authorities in the case might be found.
The Court took a recess Of one hour
EVENING SESSION.
lIr. PosTER-I will cite to your Honor from Ora
HAMS Practice, page 2S9; also, from Sd Bosworth,
commencing page 200, the case Of Fry and Bennett
tie I'd note and the 9Th head note. The answer IN the
case Of Fry aud Bennett as follows: The defense
set up,
|. '|Tbe items contained in the article are true"