The sun. [volume] (New York [N.Y.]) 1833-1916, 1876-03-15
CIAS. B. 0RVISSLIBEL SUIT.
THE CISE ~ THE COURT or COM
NOV PLEAS YESTERDAY
Motion for Blli OF Particulars Armament on
Appeal The Times aud The sun Oppose
the order Points Of Law In the Case.

NUdIlfN ID OiNtS "Ets AN' bi''o anu I'M 100
The defendants pleaded that the publications
complained Of were true. In the Times suit
Judge Joseph f. DAILY made an order that the
defendant furnish I'LL OF particulars OF tho
facts to be proved In Justification, and subse-
quen ~ Judge Van Brunt made a like order In
tho case OF THE Sun, feeling bound to follow
Judge j. +. DMy, hut himself expressing the
opinion that the motion ought not to be granted
Tho General Term was held by Chief Justice
Charles 4. DAILY aud Judge Van IIoesen. Messrs.
Gardner and stillwoll appeared for the plaintiff;
Messrs Howard Payson wilds and Austin
Abbott for the Times and Mr. willard Bartlett
for TuE Sun.
Nv the direction Of the Court the were
argued az ono cause.
Mr.. Gardiner presented the Views ofthe plain
un at great length. lie argued that under the
authority Of Tilton act. Beecher, the plainuh
was entitled to Till " particulars precisely as
he applied for the same. This, "a a matter Of
right. should be fun and complete. under the
authority OF the long-settlcd rules Of pleading,
and VI the adjudgcd cases. Independent Of the
case of 1iltou ACT. Deecher, and section los Of
she code. the Court has power to grant the b III
{ particulars applied for.
Mr.. willard bartlett. for the defendants, said
that this was an action FOR an alleged libel. The
answer admits the publica ion aud iustines IL as
true. On Jan. II. 1875. Judge Robinson granted
The nl.ntln BIZ Of particulars Of his jusiincn-
ton. or show cause why the same should not he
deliver d.
Inc deicndan, elected not to deliver the do
sired hih 81 particulars, and opposed the motion
upon the order to show cause. IL ny argued ut
spcci.i Term. In February. before JUDGE Van
Brdnt. who hled an oulninn IN the detcndan.s
favor. ana strongly adverse to the nppiication.
which however, lie ielt constrained partly to
Ersn,, On account Of a special ierm decision
made short time previously by Judge Joseph
D. Jay OF this court.
THE DEFENDANTS APPEAL
The defendant has now appealed from the
orr r thus made by Judge Van Brunt, contrary
To that Judges own view Of the law, nut In ac-
cordance with precedent which he thought
him srif bound To regard.
An the existing power Of the Court In regard
Go us II particulars In personal actions is de-
rived from the Code OF Procedure.
Piior To the Code the only statute in this state
relating u bills Of particulars appears to have
been that provision Of the Revised Statutes
which en- powers the Judge of court IN which
ali action to recover real estate or the posses
sion thereof Is pending. to order the plaintiff to
Of the promises demanded, In tho same manner
and subject to the same provisions as In cases
personal notions. This provision affects only
actions rclntinr to real estate In per- pnal ac-
gard 10 bills OF particulars was derived from the
common law, ana had all the force of statutory
enactment under the provision Of the Cnnstitu-
ton of the state, which continues specified
parts Of the common law In force. "snuJcct to
such alterltion as the Legislature shall make
in the wear lsis the LEGISLATURE adon,ed the
Code. with the aVOwcd object OF substituting
Simple system OF procedure for th;t ~ the COM
mon law. When i1rst enacted IL contained in
what then section 1850 only the following
provision concerning bills OF particulars:
1t shah not be necessary for party forth In
Pleaons ne items o. an account therein alleged where
sdycrsc party. Silhin teu daJs afcr thereof
& sseui ' or sptorney he "a SH st h;
bellows TO be true, or be precludcd from eviug evL
This provision. with slight changes, remains in
the present section l5s OF the Code. Two i'm
portant additions, however. have been made to
IL. Tue first OF these additions WIS in lSI9 aud
consisted of the clause providing that tine
Court, or a Judge thereof, or County Judge
ma, order further or more particular bill"
which - substantially retained in the existing
provision OF section lbS, that the Court
Judge thereof, or a COunty Judge may order
furiher account when the one delivered is de-
TIE second addition was made in 1851, and Is
nov the last clause OF section l5s - follows
al d the Court may In all cases order ulll OF
particulars OF the claim OF either patty TO lie
This Is the provision OF law upon which the
plaintiffs Application was blsed.
REVISION OF BILLS or PARTICULARS
Section l55 of the Code VS. a revision Of the
whole SUBJECT Of bills OF particulars. and intend
reference thereto under tue common law sys-
ten, II therefore repeated tue preexisting COM
a statute revising, or intended to revise, the
whole subject matter treated In a former sta
tute, ana evidently designed as a su stitute for
II, operates as repeal ~ tue previous statute,
without any express words To that effect he
same prlucDic OBTAINS where a statute revlSes
the common law. This was held IN the Com
monwealth art. Cooley, 10 Pick, 81, which was
an indictment at common law for disinterring a
dead BODY. Upon conviction the defendant
moved IN arrest - Judgment on the ground that
common law on the subject had been SUPER
seeded by the Massachusetts statute Of 1874 relat.
Ing To disin eTments. The supreme Judicial
Court arrested the judgment. saving;
been BY Inc statute o. iSii AUD ne eou4s
arr Of opinion hat mas been The Who subiec. has
been r'Vsed by the Legislature TIE time for proseeut
ny the onsnee ana the pun,h nont ar. Nm led oy !he
OF dead bodies. ssainte is implicitly repealed y a
SUB quent revising the whsle SUBJECT matter OF
mon law the implication is equally strolg
That The provisions Of the Code concerning
bills Vi pa ticulars were designed to replace, and
Therefore did repeal all that part of the common
law which related TO the subject Is evident from
the l. gislatye changes which these provisions
have undergone, II they were only auxiliary To
the common law, upon what theory was IL neces.
saiy OF wen eApeelSht 70 amehu tne ,oIiglnnI
sec'lnn ~ empowering the Court or Judge to
order further account, when that delivered ~
deicctivcf The Court unquestionA oly possessed
NE 1wer TO DO this AZ common law. isit not
plain mat the Legislature deemed its express
Restoration necessary, because II had been taken
away Oy the enactment Of Tie section us 1t orig
iDally stOodi
Thery y nothing advers. to this view In the
case Of hilton act. lSeecner 80 NJ Y, l16), upon
which tho plaintH So largely relies.
he last clause OF section l1S - the Code
Inn n me .HcIe',e OF the power merely con
claim Of the party Effected. The words IN all
eases' are qlaliacd and limited by the suisse
In constituting statute, II must be 80 eX-
pounded, II possible, "a TO give force, effect, and
meaning To every part Of IT, Tho court below
was conect in holding that section l5S OF the
Code having provided in what cases a bill OF par
nculars can he ordered It follows, as matter Il
course, tn tue Court has no power TO make
socn an order IN case not embraced within tho
provisions OF that section"
Justification of IN alleged libel Is not a
claim Iue plea Of Justification In simply and
merely u defence. Tho word claim Imports
something more than Il defence. IL implies a
dem nj for Affirmative relief.
The de1uitlons of the word given in the
leaning law dictionaries arc clear on this. IA
large number were here cited.J
CONCLUSIVE DEFINITION
But definition which ought TO DO regarded AZ
conclusive Is that OF tho Court OF Appeals, in
Lawrence agt Miller e N Y, on p. 25iJ, where
Gardner, j., says:
The Ordinary adjudication OF claim Is that ofa right
ute, actual Or supposed TO debt, privilege tang In
The possession Of another = claim tna
nea ~ or through winch the claimant obtains tho
possessiOn or enjoyment Of the thing sought.
The meaning Of the word counter-claim as used
III tho Code npily illustrates that of the wo, d
claim. countfr-claim necessarily involves q
deu and for affirmative relief. IL can onV be
mHdo cnuDter to a complaint or dem nd for af-