The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-05-23
SUPREME COURr-GEHERAL TERN.

COsnsel-Declsion Of the Court.
Before Judges Leonard, Cerke and Sutherland
This 70 m appeal from order made at the special
Term setting aside verdict and granting new trial
The action was for alleged libel published in the
Nsw Yosx HsaAID contained in letter from the widow
OF Colonel Kimban It's publication Was shown 10 have
been made without any malice towards the plaintiff and
from motives Of kindness
Tho writer thosghs herself aggreved because certain
effects belonging 70 her late husband had been kept By
another person whom she described a. prostitute,
and she gave expression 70 this grief. adding these
words Ia Iunderstand, under the patronage OF
protection Of Mr. More agent Of the Central Railroad
who has also employed the orderly my husband
The only innuendo explaining these words this thast
was by these words intended 70 charge the plaintiff
and the defendant did hereby charge the plaintiff with
having under his patronage protection prostitute
The Court did not think that the complaint stated
cause Of action, and thereup0a dismissed tho COM
plains s
THR POINTS COUNSEL.
Since Christ said 70 the adulterous woman, "Neither
been disgrace 10 he Christian church. nor crime
against Christian laws 70 paint, patronize or protect
TO publish OF devoted follower OF Christ that no
painted pasronised or protected fallen woman. Says
Chanoslor ken.A libel has been we'll defined 70 be
iure memory Of dead or tho reputation Of one
cac. "A malicious Intent towards government magis-
traies or individuals, and an injurious Offensive
dency must concur TO constitute the lbel."-1 Kents
Com 632 "The guilt and the essential ground OF action
fss defamation oonssis in The malicious intention; and
when the mind not 70 fault no prosecution can be sas
II. The late Isaac T Hopper. so Justly celebrated in
this city for his long NE o. devoted 6enevoIence had
ronage protection" The fact was mentioned with
especial commentator at his funeral. and his acts in
that regard are BY good men believed TO form
OF the brightest stars In his immortal crown.
IT. the letter complained Of Mrs. Kimbali had said
she At time, understand, under the patronage
protection OF the late Isaac T. Hopper" would any
lawyer for such publication, have sued Mr. Bennett
ibeler Of the dead trust that the Court do not judi
cialiy know that John H. More Is less vrtuous or
less good Christian man than Isaac T. Hopper. IL Is
quite clear that such simple publication touching the
would lack every essential ingredient necessary
sttue libel. The rules Of law must bs applied
complaint made out no libel and asked leave to amend;
the motion was denied with liberty to move on adavits
al special term The denial OF that application TO amend
was discretionary with the Judge and cannot BIO consd
cred on this appeal
I'LL There suggestion in the published letter,
that the protection" was improper, and there
averment in the complaint that the writer of the letter
Intended to mpue any impure disgracefu illegal ACT
whatever TO the plaintiff Nor was there any averment
Of special damages found in the complaint.
~. The patrons OF the hagdaien Asylum, -
under their paoDsge sna many suS
OF the degraded women, and It is not libeuous
TO publish c the faGs S se settled rule that
must be construed in an innocent sense Button
Hayward, Modern "a; Holt va. sithneld, Term Rsp
691 Thus, notice posted on the doors Of assoca-
ton rooms. stating that and not to DO ad-
mitted the association dceming them persons with
was held not ibelious, since an opinion might
have been caused ny harmless acts Robinson vs.
!s SasH.r Price, no, NJ D. sS to c. 0s 8.n
Barnett w. Allen. B. & N, 376.) So al
allegation that A "a. '.aken 70 court. on
quans nasmuch as 1t might mean that he was taken
wtness tharrsou VI King, Tasnt 4sl arg Price a.
tionabe without coEoqyum showing that Il was meant
thereby 70 charge murder as death may Be caused by
an innocent act miller vs. Buckdon, Bolsts lol 50
able without avermcnt that Il said with intent to
charge the passing OF such money knowing It to
precisely hs same principle Is held that an action for
SANDER will mot he upon charge Of having 'sworn
ference 70 oath taken In q legal proceeding (Hop-
kins W. Beedle, CAT SAT; Vaughan W. Ravens 8
s@ =! ho css y
v. Tue complaint was dismissed BY Judge Barnard At
the circuit after consultation, as We are told, with
Foster without any with which he has ut
favor ua The proceeding at special term TO
proprsty single judge reversing the decision OF
another without apparent good least good
BENZ GALBRAITH Defendants Attorney.
EDWARDS PlERREP0NT, Of Counsel
OPINIONS or TIM COURT.
lished in the New YoRx HERALD OF which the defend
ant IL the proprietor IL is contained In letter from
s me q c0 Ts wnc1 was % 70
matters relating TO her deceased husband, says
"Among the papers referred 20 as returned 70 INC arc
my private letters scattered ndiscrimnatey among
the Others, and returned 70 mo after being In the
hands OF q prostitute And In her hands, too, are
and that cannot obtain them except through long
litigation BY the Public Administrator The police nave
called upon this woman and she refuses TO give up any
n30Uh elou N mi fe N&der and
snder the patronage protection Of M. More ogn n
Ae Central Rcroad, 'cA0 also employees tie orderly MY
Undoubtedly our Law, like the Roman law recognizes
. very marked distinction between spoken Islander and
or painting that published in books newspapers
Matter calculated 10 cast rdieule 70 degrade
him in the opinion o. MS acquanances or Of the com
muny Is libeIlous II written printed or published,
although II only spoken IL may not be actionable.
For Instance 70 accuse man orally Of being liar even
the presence Of hundreds B not actionabs per but
say OF him In article published IN newspaper
elsewhere that he Is liar is actionabe. and proof
J. r. ass, general charge or having sworn falsely,
without reference to material evidence given by tho
plaintiff on the risl OF cause, Is not aconaole In ITSELF
but Il actonable 70 PRINT and publish the following
words concerning man:"0ur army swear terribly in
Flanders said Uncle Toby, and II Toby here nov he
man fmcanng the paintG Is no SLOUGH 81 swearing TO
old story Cs,eeic vs. Southwick, ~. r. 214.)
calculated 10 cast rdicuc on man. or to degrade him
In the opinion Of his acquantances Of the community
when the language Is ambiguous. or where q aarms
an allegation that the publication tends 70
blacken and iujurs the reputation OF the
plaintiff and expose MIN to public hatred contempt and
rdlcule, cannot, l think, be sustained without an
innuendo.
The charge in the case before NJ, that pros
ttute was under the patronage protection OF the
plaintiff does not necessarily lmpute moral guilt and
there allegation In the complaint that the writer OF
the Letter intended, In this communication 70 tmpute
such guilt TO the plaintiff
However improbable. IL Is very possible that the pro
benevolent often grant 10 the errng and debased
At the present day benevolent and pious per-
q few-dismayed nj tho alarming increase OF
abandoned women who become their friends protectors
and patrons with the hope Of retaining and redeemng
them.
Is not impossible that tho patronage and protect ion
Of which tho writer Of letter TO the HKRALD speaks
may be the result OF similar benevoonce. think
that the complaint was fatally defective In not con.
tanning an innucndo explanatory Of these ambiguous
words.
The rule is where the words er neoessae expose the