The New York herald., 1864-12-14

Marcus KliDger was drawn in plaos Of Ar. Kidun and
upoa being Questioned proved sssaaoiory 70 both par
Philip Van vaIksnsurg was then caasA % supply The
Mr Fisld-Do You know either ef shs PARTIES In ~
suir A. know them by sight.
O. Have you any particular bias IN this easss No,
O. Have you had any business with either Of tho par
Q. Do you know Rants Van valksnburg' A. do not
Mr.. Evarts-What is your busnsssf A. Dry goods
Q. Arc you not acquainted with Mr. opdyksf A. No,
9. Do you Know nothing about this suiv a. Ihavs
heard II talked about.
9. You have probably talked about Is. too' A. have
.. Have you not formed some opniou' A. No..
You wers interested enough In the case 70 lax seous
Mr. Evarts-There seems to be difference Of opinion
smong us, your Honor, q 70 how many perempsory
Judge Masou-The only gives you Che privilege
Of s psrs%Rs0ri1y saIa s csn..sns,Ig !. two Jurors.
We are entitled 70 three; but think myself are only
entitled % two However. We would ks 70 have your
Judge Masou-I inclined to think that tho Law
changed making three; but don't TO jeopardize
the trial for surmise The statute before declares
Court. gAs
Mr. Evars-t is agreed then that there are 60 20 Dus
taken by ether party to Honors ruling. Tho jusor
Mr. Van vaikenbure, may stand aside, and the Clerk
:
Edward n. Seaman was then examined, and accepted
instead OF Mr.. Van valkenburg.
Mr.. EyarssEws .wili excuse Mr. Muller also. and the
Clerk will call another juror instead
caspar Westervet, to both par
ties was accepted as the twelfth uryman making the
number complete
The jury thus impanueed answered to their namesas
Warren, Benjamin Way, Hans J. Hansen, William
Holden, Edward 81 Seaman, Henry Harris John Drinker,
B K. Ball, Marcus Kliuger, Caspar J. Westorvett.
A NIcE QUESTION.
Ex Judge PierrepOnt--lf your Honor please, . qucs
ti0n has arisen to the right to begin, and
that the Court direct the defendant
the You will perceive that the complaint states
that these bes published IN the Albany Eo,niJ
o,,ma on the 18th and cath OF June 1854 Tho answer
admits the publication but ust,es ,ne act by sitting
that the publication was tre Nothing that Is alleged
~ the complaint is denied in the answer C.nse-
nothing for him TO prove; and Il Is for us. upon
whom the burden Of proof rests. TO open the
OF q single allegation contained in the complaint.
The defendant states that these alterations are true but
be also says that be did not make them until after he had
given the matter his careful consideration and that
consideration enough TO convince any man OF ordi
Code il your Honor plosses makes provision for a case
OF this KIND and refer 1865 to strengthen
position Ihs q defendant having admitted eyery!n,Sg M
plaintiff TO prove and the burden OF the case falls
upon We here ready to meet tho burden by
Of justification and is for US therefore TO begin the
II don't satisfactorily prove the truth OF these
allegations We are liable NO special malice is claimed
specific damages called for n the peadugs and we
ask your Honor to direct that the party having
the affirmative shall prove his case. Tho .ques
libel @ @ suits pSpu and this ''S has BEEN the practice
there Is thing TO be proved by the plaintiff before
goes to The jury course he he's the privilege
OF introducing testimony but bold that In the present
condition OF the peadipgs the burden OF the proof
upon us, and we are entitled to open the case
Ex.Judge Emott-D0es the gentleman ON tho Other
side to say that this case was given to tbe jury
without any evidence. merely upon the pleadDgs, tney
would be bound give verdict TOR tho plaintiff Tor any
amount Of damages be might claim Does he mean 10
say that not at liberty prove maliceg We have
right TO show express and positive malice on the
part Of the defendant. In regard to the amount OF
damages, rs II not i'm ortant Tor us to provo the
extent Of the circulation OF the Evening Journal?
How else are tho damages to be enhanced or
lessened except by showing the circulation Of this
ton OF damages, i rs important os US to show how
exterls vey these ibeis were promulgated. am sur
prsed that the point was raised by the gentleman, be-
the practice is well settled, both here EnE
land. Lord Denman, sitting with Lord Lyndhurst and
Baron Barley decided In case exactly similar 70 this
that the plaintiff entitled to begin the case and
overruied the decision the Cooper Whitoy
where the Judge Of an opposite opin ln the case
was a similar decision, which was affirmed by tho Mop-
general But The most important OF ~
Fry Bennett, where this point and
was disposed alter the Lnesh fashion. Tho case
before Judge Oakley, who ruled that tho right
to begin with pIantln, and Chief Justice Bos-
worth affirmed the judgment. The question then came
up before the Court OF Appeals at Albany, where II
fully argued and tho result Court affirmed
the ruling Of the lower court, 10 the case Of ttieohn
Greeley there similar decision that Il may
ia.ly De considered inc practice ~ sii our courts
Judge Mason-l am very much inclined TO think tho
rule IS as IS stated by the counsel for the plaintiff In
cases OF this description especially the paiutin should
have the right OF Introducing Testimony TO the
ton OF damages In no other way can Tho damages DO
enhanced or mitigssed except BY proof.
MT. Evarts-four Hon does not wish to deprive OF
the right to offer authorities. think snail be able to
satisfy this Court that the Of Fry Bennett,
LtteJohn vs. greeley, wholly dstinguishable from
this Now The circulation Of ne wspaper however
great or small does not affect the question OF malice
be permitted 70 thing not set forth the pro-
ceediDga Baron Anderson lays down the rule
IN this way:-"What would be the consequence
II no evidence 10 be given at ALL lie who would
wish tue result to be against him must begin" Judge
Darling smith, OF this STATE. decided similarly. The
paptu in this case claims damages generally and sub.
nit to your HONOR that it would be Unfair for him
come 10 here and produce testimony as 10 any specific
complaint.
Judge Mason-l am strongly Of the opinion that the
stated the extent OF the damages in the plead
ings but tnat does prevent him from putting ev
Deuce circuation of the penrQ you,nal VITA the
Of getting at the question OF damages am also
inclined 10 think n re to the question OF malice
that Il IS not necessary to mako special averment In
the pieaongs there may be doubt the rule;
but so hold, and think the law is 10 that effect.
THE CASE yuR THE PLAINTIFF.
ExJudRe Emott opened the caso tor the Daintif and
spoke substantially folowsli the Court please and
gentlemen of the jury, the appearance Of this
teres. a this case The nry however, b. been
with both sides and supposed 10 be
biased not to be supposed that these parties
unknown TO you. rot that OF you enjoy their
quainsnce but they are men OF such repute that you
cannot all TO know something about them Now wish
to remove impression that you derive from any
whatever that this s political libel suit IL
true that you have before you two who occupy q
prominent stion in the sameipotica party but gen.
temen this Is not suit with reference 10 political ques
tons Nor action brought here which affect
political proceedings OF either OF the parties II Is
where the defendant has veutured promulgate the
most deliberate manner charges which affect the pers nal
character and Integrity or the plaintiff In this suit IL
political strife between The two parties but ques
tion affecting the private character Of the plaintiff
George Opdyks must be known BY reputation st least to
or lnrn fha Cvfa autof s.f thn
greatest city this continent and long before that
ciated with the leading merchants OF New York, who
would spurn his acquaintance II there anything
fecting his character for honesty morality. II
addressing you two upon the question Of his
character, would have nothing more TO say. He is
now before you-a man charged with swinding-wth
being speculaor bis country In the hour Of ts
greatest pertl-as a man who ready 10
sell his soul for gain-as a man accused OF
perjury In the public prints Of this city, he walks