Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1897-03-15

1 SPSNtaA AAAJAAy ~ IiAxu III HIS Du8lQeSSs ii
IT has cost him some special financial
loss, It is for him to put 1t in his writ,
\ and then to prove 1t. In this case the
| plaintiff In his writ makes no allegation
There was an Introductory averment
that these articles were published intend
ing thereby to deprive him OF his Office;
but that, amounts to nothing, as the
tion that the publication of the articles
did deprive him of his office. In the
drafting OF his writ the plaintiff does
not claim that the publication OF these
articles has deprived him of his Office OF
deputy sheriff, and not having claimed
IL. he has offered no evidence of course.
upon that issue, nor could he show ii
upon the facts as they went in: because
II Is proved that as deputy sheriff he
was serving under a commission which
expired on the first day of January. He
served out his term. He lost no Office
and It would have been folly for him to
insert In his writ thing which would
have been palpably untrue IL he had att
tempted to prove il. Now IL there had
been any special damage in any other
direction. II he had been a business man
for instance-you may imagine a case
where libel might be printed In the
newspaper about business man, and
the publication of that libel might cause
him q loss OF credit at some particular
mean disaster to him in his business; in
such case as that 1t is always neces-
sary for the plaintiff to state in his writ
/ tine particular kind of damages which he
suffered. and then go on and prove It,
But in this case the plaintiff has drawn
II writ which asserts no special damage
which claims no special damage OF any
KIND. ana. as say. having asserted no
such claim, he has offered no evidence of
any particular or special damage. Nor
has he here any evidence whatever in re-
gard to damage. He has gone on and
stated in his writ lot of legal rhetoric.
n nj s,sys
lawyers use in drawing these terrorizing
writs. where he SAYS, and II is repeated
time and time again. here at the end
let us see what he says he suffered in his
writ: Whereby he has been greatly in
jured in his reputation will come
to that later-"that he has suffered great
distress of minds there any proof of
that? Why. McNaliy has been upon the
stand. Has he testified to you that he
has suffered any distress of mind? He
doesn't even volunteer the assertion by
testimony that he was mentally dis
tressed for moment by reason of these
publications.
Well gentlemen. damages are not to be
guessed at. because n skillful lawyer,
trained in the use of Understanding terms
of the law: has inserted an allegation in
a writ. That is not proof. You nave
seen enough of law here to know that we
first allege in the writ; but the jurors
hear the allegation and watch fer the tes-
timony. But not a word. Again: HAS
tpSt tiiC SoSu WHICH
he bore in the community"-and that is
1t. a repetition of his first statement that
ne had been greatly injured in his repu-
tation, which l will come to later.-''and
been thereby exposed to the public
hatred. contempt and ridicule, which
means the same thing-"and been largely
deprived of the benefits of the public con-
fidence. If he ever had it-"and he will
continue to suffer from all these causes
the evil results which said libel is so well
calculated to produce among all good eiti--
zens.
So that, stripped of all its verbiage, he
and that is that he has been injured in
his reputation. and that his good name
and character in his community--or let
me use his language: that he has lost
the good name and reputation which he
bore in the community.
Now il is upon that element he starts
in the absence of all testimony on his
part. Not a neighbor has come here and
contcrded that George Mentally has been
injured in his reputation. Not even Nc
Nally himself nor his closest friends in
the town of Clinton have gone upon the
stand to swear that the publication of
these articles has lost him the good
name and reputation which he bore i'm
the community" Now gentlemen, that is
really starting point, and that is the
reason why argue this first. 1t is the
starting point of this case. 1t is idle for
courts to be sitting here as moot courts
truth or falsity or good faith of publica-
tions. The right of action by libel was
not intended to allow citizens to come. in
here and try out technical or theoretical
grievances. 1t was not gotten up Tor cit-
zens or public officers to come here and
spend the time aud money of the county
and of the public upon puerile, technical
ana theoretical grievances. A libel suit
IS business proposition as much as a
promissory note. My promissory note
that hold against you represents prop
erty. If you fail TO pay it courts Of JUS
tice exist where ! may obtain what be-
hut a small part of the things that are
guaranteed to me by the constitution. BY
the constitution We are to be protected
not only In life and liberty ard the pur-
invoke the great power OF the court to
compensate us in dollars and cents when
our character has been injured and our
good name and reputation has suffered |
financially by reason Of libel in some
here to try out theoretical or fanciful
wrongs. The burden of proof rests upon
the plaintiff to satisfy you in the first in
stance that he did have in his community |
q good name and q good reputation and a |
moral character to be hurt IL he had |
rome. then the doors of these halls of |
justice, upon the question of financial loss |
and of damages. are closed. In that case |
if the truth be not established. If the |
he can take his nominal dam
ages and go out of the court with vindi- |
cation: but he cannot ask you to inscribe |
your names at the bottom of a verdict |
which shall go one cent beyond the dollar |
OF nominal damages until you are salts |
fed by u preponderance of the evidence
with the burden of proof upon him and |
not upon us.-that on the day of that |
publication he had a good moral charac- |
ter to be hurt. and that he had good |
reputation in his town 10 be hurt. When |
he has satisfied you Of that. then the law |
allows you to go on and measure what |
is always most difficult of measurement |
the amount i'll dollars and cents that will |
make good to him the actual injury to |
that good name and good character and |
good reputation which the law says that |
he must first prove.
y How stands the evidence? What are |
we trying here gentlemen? Mr.. McNal- |
ly has brought into this court his char |
acter. 1t DIS not a pleasant thing for me, |
for I have known him for years. 1t is |
not a pleasant thing for me to have had |
put upon my shoulders. after he had |
drawn this writ, the grave responsibility |
of going through his town and of first |
finding out-f0r it was the preliminary |
question at the bottom OF this case-of |
first finding out whether he did have in |
that community good name and a good |
reputation and a moral character to be /
hurt. But 1t was my duty. 1t was my |
duty to introduce here the testimony thai |
l found. 1t Is my duty now to comment /
upon it fairly-and I hope may-and I
then uDOn YOU rests the responsibility. J.