Fry v. Bennett — 16 N.Y. Super. Ct. 200

Majority

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Edward P. Fry, Plaintiff and Respondent, v. James Gordon Bennett, Defendant and Appellant.

Headnote

1. That a judge, before whom a cause has been once tried, and in which a new trial has been granted refuses, (on its being reached in its order and moved before him for a second trial,) to decline to try it, and to order it tried before another judge, is not the subject of an exception. He is not at liberty to decline trying it when reached in its order on the calendar, and postpone the trial merely because it has been previously tried before him.

2. Where, in an action of libel, any of the articles are privileged communications, the defendant has not a right to open the cause to a jury, on the trial of it, merely because his answer admits the publication. Nor has he in any action of libel, when the amount of damages is a matter in issue, and proof of facts not admitted in the answer is admissible, on that question.

3. Pleadings once interposed in a cause, but which have been superseded by other pleadings subsequently, and regularly put in, in their stead, are not to be regarded in determining what are the issues to be tried.

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4. In an action of libel, where the libels were published in defendant’s newspaper; copies (of the newspaper) published by defendant, at about the date of the libels, stating the extent of its circulation at that time, are competent evidence to prove that fact; such evidence is admissible (although the complaint alleges, that the defendant boasted of a circulation of 20,000 copies daily, and although this allegation is not denied by the answer), to prove that the circulation was larger, and what it in fact was.

5. In an action of libel, evidence of actual malice in publishing it, is admissible and competent on the question of damage^,

6. Where the alleged libel is published of and concerning the plaintiff, as the manager of an Opera in the City of Hew York, it is no defense to the action;' that the complaint does not allege, or that the plaintiff at the trial fails to prove, that he was licensed to exhibit such performances as required by the Session Laws of 1839 (p. 11, ch. 13). That act does not declare such performances when not licensed, to be a misdemeanor or unlawful.

7. In an action of libel, to recover damages for the publication of libels of and concerning the plaintiff as an opera manager; the question, “What was the effect upon the house (plaintiff’s Opera House) or the filling of the house, of the articles that were published in the Herald, and which are now complained of?” is not competent. Such a question calls for the opinion of the witness.

8. When such libels impute to the plaintiff harsh and cruel treatment towards his artists, and the defendant justifies; evidence of the opinions of third persons, as to such conduct, is inadmissible. The acts of the plaintiff which are relied upon as a justification of the charge must be proved, and upon the evidence given, the truth or falsity of the charge must be determined by the jury.

9. When it becomes material to determine whether a third person was sick or feigned sickness at a time named; evidence may be given on that point, without examining such third person in respect to it.

10. When a question put to a witness is objected to, and the objection is overruled and the decision is excepted to; a new trial will not be granted, merely because an affirmative answer would be incompetent as evidence, when it does not appear by the bill of exceptions that any answer was given to such question.

11. The nature and extent of the questions that may properly be put to a witness by way of cross-examination, depend much upon the circumstances of each case and rest largely in sound judicial discretion.

12. When it is a material question whether a third person fainted at a certain time from actual sickness or debility; or feigned sickness, what was said to her at the time of the alleged fainting is not wholly irrelevant.

13. When, in an action of libel, it is made an issue, whether the plaintiff was guilty of severe and unjustifiable conduct towards certain of his employees during a specified opera season; evidence of the plaintiff’s conduct towards some other persons employed by him during a prior season, and in a previous year, is inadmissible.

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14. In an action against a defendant for publishing in a newspaper, of which he is the proprietor, libels of and concerning the plaintiff, it is improper to allow the plaintiff’s counsel while summing up to the jury, to make such declarations as that, “ The Herald (the newspaper in question), by and by began to find that it could not live without doing something to attract public attention; and about the days of Ellen Jewett, it came out as one of the most infamous sheets that ever existed since man was allowed by the Almighty to handle a pen,” when no evidence has been given of the truth of such allegation (andno such matter has been averred in the pleadings).

But in such a case, although the defendant objects on that ground, to the making of such remarks, and the plaintiff’s counsel then insists that the jury may take notice of that which constitutes a part of the public history of the country, and thereupon the defendant requests the Court to decide and declare, that the plaintiff’s counsel has no right to refer to articles in the Herald, as a part of the history of the country, and the Court responds: “I will say to the jury whatever is proper to be said, at the end of the matter,” and thereupon the" defendant excepts to the refusal of the Court, to then stop plaintiff’s counsel; a new trial will not be granted by reason of that exception, especially when it is not shown by the bill of exceptions, that the plaintiff’s counsel, subsequent to such exception, made any unjustifiable statements to the jury.

15. It is indispensable to the proper administration of justice, that counsel on either side should not be allowed to lose sight of the evidence and of the issues, and indulge in denunciations of a party, based on the assumption of facts not attempted to be proved; and which should not be permitted to disturb that calm deliberation which it is the duty of jurors to bestow, and which the parties have a right to expect and demand.

But a party who relies upon an exception alone, as entitling him to a new trial, must show by his bill of exceptions, when the decision excepted to, allows a question to be answered, or a certain course to be pursued, that evidence was given or some act done subsequent to or by reason of such decision, that was (for aught the Court can see) prejudicial to his rights.

16. When articles are published in a newspaper of and concerning the plaintiff as the manager of an opera, such parts of the articles as charge the plaintiff with unjust, tyrannical and oppressive conduct in reference to bis dealings with his artists, are not privileged.

17. An editor is responsible for the truth of what he alleges in such articles to be facts, but his criticism upon, or his opinions (expressed in such articles) upon facts admitted or established, are privileged.

18. An editor’s belief that allegations, which he makes (and which are not privileged), are true, is no defense.

19. The truth of the allegations contained in the libel is a defense,' however malicious the motive with which it was published.

20. In an action of libel, the actual damages are to be determined by the jury, upon a careful consideration of the offense or misconduct thereby imputed to the plaintiff; the circumstances of the publication, the extent of

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its circulation, and the natural and necessary consequences of such a publication, according to the results of human observation and experience.

21. Upon the question whether punitory damages shall or shah not be allowed, the actual motive and purpose of the defendant, in malting the publication, may propely be considered.

22. When a witness is called to prove and does prove declarations of the defendant, with a view to show thereby actual malice in malting the publication, and his- direct and cross-examinations leave it an open question, what were the precise words which the witness shall be deemed to have testified were used by the defendant, and the opposite counsel disagree in relation thereto, it is proper for the Court (when its own recollection is indistinct), to state to the jury, what each counsel claims the words are; what his notes of the testimony show, and leave it to the jury to determine the fact, • with appropriate instructions as to the effect to be given to the words, as they shall find that they were as the one counsel, or the other, claims them to have been.

Judgment affirmed.

(Before Bosworth and Woodruff, J. J.)

Heard, December 8, 1857;

decided, July 3,1858.

This action, comes before the Court on an appeal by the defendant, from a judgment entered on a verdict of $6,000 damages, rendered against him on the 31st of May, 1856.

It was commenced in February, 1849. It first came before the Court, at its April General Term, 1851, on demurrers by the plaintiff, to the answers of the defendant. The demurrers were sustained, and liberty was given to amend the answers. (5 Sand. S. O..R., 54.)

It was tried before Ch. J. Oaklet and a jury, in December, 1853, and the plaintiff recovered a verdict for $10,000 damages. The defendant moved at Special Term for a new trial which was denied, and from the order denying it, and from the judgment entered on the verdict, the defendant appealed to the General Term. The Court at its February General Term, 1855, granted a new trial on the ground of the erroneous admission of a deposition in evidence. ( 4 Duer, 247 .) At the March General Term, 1855, the plaintiff moved for leave to give such evidence at the bar of the Court, as if given on the trial would have made the deposition admissible; that a reargument be then ordered, and that the case and exceptions be so amended as to state that the evidence so given at bar, was given on the trial. That motion was denied. ( 4 Duer, 651 .)

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The action was tried a second time before Ch. J. Oaklet and a jury, in May, 1856, and the present appeal brings before the Court questions arising on such trial.

The answer which raises the issues to be tried was verified on the thirteenth of May, 1852, and contains two hundred and fifty folios. A reply to the original answer was put in on the thirteenth of January, 1852, and an amended reply was served on the twenty-third of April, 1852, after which the amended answer of the thirteenth of May, 1852, was interposed.

The action is brought by the plaintiff against the defendant to recover damages, for the publication by the latter of a series of libels in the New York Herald, of and concerning the plaintiff, his business, character and reputation, he being the manager and director of an Italian Opera Oompany. The complaint (which is 60 folios in length), contains twelve libels, the sixth of which is now out of the case; the first was published on the third of November, 1848; the second on the first of December; the third on the third of December; the fourth on the fourth of December; the fifth on the sixth of December; the sixth on the fourteenth of December, 1848; the seventh on the third of January; the eighth on the fifth of January; the ninth on the thirteenth of January; the tenth on the eighteenth of January, 1859, and the eleventh on the eighth, and the twelfth on the eleventh of February, 1859.

The Opera Company commenced their performances under Mr. Fry’s management, in the city of New York, by a concert at the Tabernacle, October 2d, 1848. They then went to Philadelphia, and performed there during the month of October. They then returned to New York, and went through an opera season of fifty nights at the Astor Place Opera House, which was carried through and terminated about the middle of February, 1849. In December, 1848, a part of the company went to Philadelphia and performed operas there, while the rest of the company performed here.

It is respecting the October season of one month in Philadelphia, the season of fifty nights at the Astor Place Opera House in New York, and the season in December in Philadelphia, when part of the company were there and part in New York, that these libels are published.

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Certain extrinsic facts were alleged, with a view to justify the meaning imputed by the complaint to the libelous articles, viz.:

First. The previous opera season of 1847-8 (under the management of Messrs. Sanquirico and Patti) failed, and the defendant alleges they cheated the subscribers out of about $8,000, and the way it was done was, that the managers procured a subscription in advance, of $24,000, for seventy-five nights, and received the money themselves; they then gave but fifty nights representation, and pocketed the balance, some $8,000.

Second. Mr. Fry, just before the commencement of the opera season in Mew York, published a programme of arrangements, setting forth the character and nature of his business, his principal singers, the means taken to carry on the opera season, and the terms of subscription, &c.

Third. James Foster, Jr., was trustee, who received the money subscribed for the season of fifty nights, paid in advance. The number of subscribers averaged about 350, which, at fifty dollars each, would be $17,500.

Fourth. The plaintiff, to guard against feigned illness by his employees, had a clause inserted in his contracts with them, that in the event of feigned illness he might cancel the contract, and claim a forfeit of salary and damages.

Fifth. Mr. Fry also deposited in the hands of S. B. Euggles $2,200, as security for the salaries of Benedetti and Trail, two of his employees.

Sixth. Mr. Fry had bought of Benedetti the music and dresses for $5,000, and had hired the Astor Place Opera House, and the Chestnut Street Theatre, Philadelphia.

Seventh. The plaintiff having thus made his arrangements, and published them to the world, so that the defendant or any one who wished to know the facts about the opera, could know them,—having hired the Astor Place Opera House, Mew York, and the Chestnut Street Theatre, Philadelphia,—having purchased from Benedetti the music and dresses for the opera for $5,000,—having deposited the sum of $2,200 in the hands of S. B. Euggles, Esq., as security for the salaries of Trail and Benedetti,—having in the hands of James Foster, Jr., as trustee, money paid in advance by the subscribers to the opera (some 350 of them at fifty dollars apiece, being about $17,500),—

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having sent an agent to Europe to aid him in his enterprise,— having in his employ between 100 and 200 people, or more,— having (as he alleged) always had a high character for integrity, unimpeached and unimpeachable, and a knowledge of music and the opera, derived from study from boyhood, from foreign travel for the purpose,—he commenced after the end of the October season in Philadelphia, the season of fifty nights at the Astor Place Opera House, on the principles laid down in the pro-gramme of arrangements, namely, the abolition of any bar for the sale of liquors, and the exclusion of all improper persons by a most effective police.

The substance of the libels may be briefly stated as follows:

The first libel, in substance, charges: That it was a part of the plaintiff’s system of management to get his critics to defame and abuse the females of his company, in ignorant and blackmail newspapers—in the purchased and corrupt newspapers under his control; that he began this system on Madame Pico, and was carrying out the same game with Truffi.

The second. That Madame Pico was insulted, and summarily sent adrift, and had sued the plaintiff. That plaintiff’s pet journals in Philadelphia came out and abused Madame Truffi in the grossest terms. That last year (the season of Messrs. Sanquirico and Patti) the subscribers were cheated out of one-third the subscription money, amounting to six or $7,000, and that as great a blunder was made this year, &c.

The third. That plaintiff packed the Astor Place Opera House, from parquette to amphitheatre, with loafers and hirelings, to hiss Benedetti off the stage; and that at least 300 persons, by the special permit of the plaintiff, were allowed to grace the opera for the first time in their lives, &c. That plaintiff appeared before the audience and sustained his favorite character of an ape, by no means for the first time, &e.

The fourth. That plaintiff was a half-starved musical adventurer; that Truffi, Eosi and Benedetti were marked as his intended victims; that if he could get rid of these, he could put the amount of their salaries in his pocket, under the pretense of sending to Europe for others, &c.; that he had broken down in two campaigns; dares the plaintiff to fulfill his contract, and to revive champagne and hock suppers, if subscribers would allow it, &c.

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The fifth. That the opera season was a history of ridiculous blunders, violent contentions, supercilious ignoranc§, laughable rows and riots, and nothing but disgraceful brawling and broken promises.

The seventh. That the defendant finding that the opera still went on, that nobody was cheated, either subscribers or artists, heads his libel thus : “ Grand Fancy Ball at the Astor Place Opera House. The Manager's last Kick." Adding that the managers last year, under the eclat of a ball burst up, “and the subscribers who had innocently advanced their money were cheated out of some $8,000.”

The eighth. That the opera in Philadelphia, under plaintiff’s management, had burst up, and was ended.

The ninth. That plaintiff had caused to be purchased a panorama of Venice, in Europe, for $3,000, to be exhibited instead of Opera singers, as he had agreed.

The tenth. That the defendant informs the public of a “ singular change of the times,” and that so far from failing, “ the opera will close with eclat and profit,” (by the patronage and attendance of the public gamblers of the city,) “ leaving a vast surplus for the establishment of a foundling hospital.”

The eleventh. That but for the patronage of the public gamblers at the opera, the plaintiff could not sustain himself a week.

The twelfth. Charges, that plaintiff was the editor of the Gazette in Philadelphia; broke the paper, smashed the concern; that plaintiff supported, the chorus of the opera, “ by giving out tickets of admission to needy young men who had good voices, and allowed such to bring their relatives or female friends without pay, provided they sang as chorus singers.” And that the great proportion of the frequenters of the opera were persons of ill-fame.

The defense set up in the answer is, in substance:

First. That the statements contained in the articles, alleged to be libelous, are true.

Second. That the_ articles are fair and impartial criticisms and are privileged.

Third. That defendant had probable cause to believe, and did believe them to be true when he published them, and published them without malice.

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The testimony given and proceedings had at the trial occupy about thirteen hundred folios. The defendant presented thirty-four several propositions or instructions, which he requested the Court to charge. Eighty-two exceptions were taken by him; of these, thirty were taken before the testimony was concluded. Most of the others were taken to parts of the charge, or to refusals to charge as requested. The charge of the Court, the defendant’s points on the appeal, and the opinion of the Court, so present them, as to make any more detailed preliminary statement unnecessary.

The opinion of the Court states, the matter of each of the several exceptions argued, and refers, in terms, to the points of the appellant made upon them, by the number of the printed point relating to such exception.

The charge of the Court (as found in the case) is as follows:

“I am happy, gentlemen, that you have reached the termination of this case, and I would remark here that the nature of the trial is such, the parties have been so long in litigation, and it has been so oppressive, that I sincerely hope you will be able to come to a result in the matter, and dispose of it so as not to render necessary any further trial, so far as it may arise from the want of a verdict of the jury. This action, you will observe, has been tried before, and tried before me, and the testimony, speaking generally of it, was very much the same as is now put in. I believe the points of law which have been raised are also the same, substantially, as were involved in that case. The matter, therefore, has been maturely considered by the Court, both by myself individually, and by my brethren upon the bench, and I think I am prepared to state to you clearly and distinctly, what the law of the case is. I do not know that I can do better, or spend less time in doing it, than by reading the charge which I then gave to the jury, which has been printed with the evidence in the case, because in looking it over it seems to express as clearly as can be, the rules of law applicable to the case, and to the points you are to decide. After the testimony was closed I stated this to the jury:

“This action, you will observe, is brought by Fry against Bennett, the publisher of the Herald, for a series of libels, the number of which as contained in the plaintiff’s complaint, is

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twelve. One of those, which is marked as the sixth in this book, (which I shall give you at the conclusion of my remarks,) is out of the case for the present.” That alludes to the time when the demurrer was put in. With respect to the sixth libel, the defendant has interposed a demurrer which is that the libel itself is no libel on its face, and that therefore it gives no cause of action. In respect to the others, they consist of a series of publications in relation to the plaintiff, Mr. Fry, in his management of the Italian Opera at Astor Place, and in relation to his dealings with his artists and employees engaged to serve him in that business. Perhaps these alleged libels may be divided into these two classes: those which relate to the management of Mr. Fry, of the Opera generally, and those which charge him with harsh and unjustifiable conduct in relation to various individuals whom he had employed, especially the female portion of them. Two defenses are interposed: the first is, that all of these publications are of that class which the law calls privileged, that is, publications which Mr. Bennett had a right to make, and that he is not responsible, although they may have been founded in entire error; that they relate to the management of the Opera, a public amusement, introduced by Mr. Fry, in which the public had an interest, and that, therefore, any man, the editor of a newspaper or otherwise, might speak of it by way of just criticism, and that the public have an interest that there should be a free and unrestricted criticism exercised in cases of this kind. In the second place, it is contended that all these charges which have been made, have been substantially proved to be true. It will be necessary for you to examine these two grounds of defense. The first ground that I have mentioned, would be the first for your consideration, whether this case comes under that rule of law which authorizes just and fair criticism on the conduct of public men, or men connected with any public business in which the public have an interest; there is such a rule of law, but it is sometimes a little difficult to apply it with precision; but yet it is a rule which Courts and jurors are bound to observe. Various instances were referred to by the counsel on both sides as illustrating this rule of law. For instance, the works of an author. The public have an interest in the publication of books and all literary productions; and in order that the public interest should be

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guarded, and that no false impression should be made upon the public mind, the public have an interest that these publications should be open to free remark. It is well settled with respect to a book which a man may choose to write and publish; honest criticism may be made upon it with respect to its dangerous qualities, its destitution of merit, or anything else which the party chooses. These things the public have an interest in, in order that publications inculcating incorrect principles may be exposed and that no evil should result from them. The counsel for the defense contends that this, privilege extends not only to the work itself, but to the personal character of the author. That was contended upon the former occasion. My own impression for the present, is, that the position assumed by the counsel for the plaintiff in this matter, is a sound and true one, and that this privilege is to be confined to the discussion of subjects only in which the public have an interest. Thus, a book may be examined and criticised, but anything bearing upon the personal character of the author, anything that touches him personally, does not fall within the rule. I cannot see, myself, how it will be necessary or useful that the person of an author should be held up in a ridiculous light, or his personal character attacked, or his motives impugned. It is not difficult to draw the line of distinction, and it seems to me that it is a line dictated by good sense and fair dealing. In one word, in any statements of matters of fact, in relation to this principle, as well as every other, the party is responsible for the truth of what he states, but is not responsible for his opinion and judgment. That arises from the fact that not only it is important to the public that this opinion should be free, but it is impossible to test it by any rule. The critic may have an honest opinion of a book which is unfavorable, and may not be accurate, but he is not responsible for that opinion. Kot so with respect to matters of fact. If the critic of a book states a fact contrary to the truth, he is responsible, not for the criticisms which he makes, but for the false basis which he has assumed. In respect to the case before us, all the parts of these libels which reflect on Mr. Fry’s want of judgment and skill, either in the selection of Operas or the choice of incompetent performers, everything of that kind is open to criticism, and Mr.-Bennett is not responsible if these opinions be

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not correct, but all those parts of the libel which charge Mr. Fry with unjust, tyrannical and oppressive conduct in reference to his dealings with his artists, do not come within the rule. You have, therefore, to analyse these libels, and separate those parts, which apply only to Mr. Bennett’s opinions in reference to Mr. Fry, as the manager of an Italian Opera, and those which charge him (Fry) with misconduct to his employees, and with seeking to do injury to their professional standing. For these he is responsible unless he has succeeded in satisfying you that they are substantially true. The law does not require that every minute particular of the statement should be literally proved to be true; the truth of the libel must be substantially proved; no material part of any kind is to be left unproved. The justification must be as broad as the libel. You will apply that doctrine to this case too. A legal justification amounts to a complete defense, and if the jury find that made out here, it is their duty then to find for the defendant. In another aspect, incomplete proof of matters contained in the libel may be of importance to the defendant, because, although the evidence does not come up to the allegation against the plaintiff so as to create what the law calls a legal justification, yet in assessing damages, it would be very properly taken into consideration by the jury in mitigation of the amount. The plaintiff here has not proved any specific loss in regard to his business as an Opera manager; indeed, it would be very difficult for any man to prove it, because it would be difficult to prove that any person did not go to the Opera because the plaintiff’s course had been criticised and animadverted upon by the defendant. But, in estimating the damages, you are to look at the character of the libels and the business of the plaintiff, not giving way to any feeling of prejudice, but examining the whole matter like business men, and so drawing your inference as to damages. It has been contended by the counsel for the defendant, that the jury are not at liberty to go beyond what are called actual damages. As I understand it, that has not been the course pursued by the courts in this state heretofore; what it may be hereafter I cannot say; in regard to this matter it strikes me that there must be some qualification to that rule, because the consequence of it would be that in all cases wherein no specific injury could be proved, the damages would be

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merely nominal. If the jury in this case were not allowed to form any judgment as to damages, except so far as the plaintiff proved that he sustained an injury in dollars and cents, they would have no basis on which to stand, and their verdict would be merely nominal. I have always held the rule in such cases, to be that the jury could look at the whole character of the transactions, and that they could take into consideration all the proof before them of any malicious and actual intent to injure the plaintiff. General malice against the plaintiff may not be proved, but actual malice in making the publications complained of may be proved. Malice, so far as the law requires it to exist, to sustain the action, is always implied, because every man who slanders a neighbor, or who publishes a libel against a neighbor, the law presumes to do so from malicious motives. That may be a different rule of law from a case where there is actual malice existing, because if a man by mistake published a libel, the law would fix malice upon it only so far as to make him responsible; blit it would be a different thing, if, instead of publishing it by mistake, he did so with a view to injure the plaintiff. It is contended that there is proof of that kind bearing on the defendant, and it is derived altogether, I understand, from the deposition of a German witness, Strakosch.” Upon that trial, you will recollect that Strakosch was not here. A deposition had been taken in the ordinary form, which deposition was read. Mr. Strakosch has now been present and has been examined before you, and the remark I made here with reference to the deposition, is applicable to the testimony of Mr. Strakosch as given by himself now. “You will examine that evidence very carefully, and see whether, taking his examination in chief, and his cross-examination, reliance can be placed upon the representation he ■makes that Mr. Bennett declared his intention to finish or otherwise injure and break down the plaintiff. If it should come up to that, then the defendant stands before us as a man who deliberately undertook to do an injury, and if he fail to prove his allegations to be true, he cannot escape with nominal damages. The whole question of damages is entirely within your sound discretion. If you find for the plaintiff, you will assess such damages as the occasion requires.

How, gentlemen, with respect to Mr. Strakosch’s testimony,

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it is very important in the case, and very important for yon to determine the light in which it should be viewed, as it was in the former trial, with regard to his deposition. Strakosch, (and I made the remark while he was under examination) appeared to give his testimony with entire candor. I did not discover the slightest feeling upon his part inducing him to make any representation upon which he could not speak specifically. You will remember how careful he was to make us understand that he could not say with precision what the language used by Mr. Bennett was. The story that he told generally, was that he was solicitous to serve the opera, and called upon Mr. Bennett not long after he came into the country, and his object in calling was, that Mr. Bennett might be induced to pursue a friendly course in respect to the opera; and among other things he told Mr. Bennett, or I believe asked Mr. Bennett, whether Mr. Fry might call upon him to see him on this subject, to which Mr. Bennett made no objection. He communicated that to Mr. Fry, and Mr. Fry declined to have any interview with Mr. Bennett, and that fact Strakosch communicated to Mr. Bennett, and upon that occasion it was, that the language so much discussed was used. Upon the one hand; it is here contended that Mr. Strakosch proves that Bennett said upon that occasion either “I will finish Fry,” or “this will finish Fry,” from which the counsel derives the inference that Bennett declared then, his intention to injure and break down Fry’s establishment. Upon the other hand, it is said, taking the whole examination together, Strakosch finally was uncertain, or rather said that he thought the word used was “ finished,” and not “finish,” speaking of a thing that had been accomplished and not a thing that was to be done subsequently. Now, I find in my minutes, gentlemen, that the word finished was the word Strakosch last used; he was examined particularly as to it, and finally said he thought the word used was “ finished.” Throughout the whole of it, he did not pretend to be specific and certain as to the language used; that is what I meant when I told the former jury that that testimony should be examined carefully, considering the situation of the man, being a foreigner, and but imperfectly acquainted with the English language, whether the jury could safely rely upon the representations he makes as amounting to one thing or the other.

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How, if the jury believe that Strakosch meant to say that Bennett used the language, “ this will finish him,” or “ I will finish him,” it presents a case of a very aggravated nature, because it would show that Mr. Bennett, from some resentment, as is alleged from the fact, that Fry had refused to call upon him or have any intercourse with him, determined to destroy his business. On the other hand, if the word was “ finished,” it might mean what the defendant’s counsel contend, that Bennett spoke of the negotiation that had been opened by Mr. Strakosch in respect to Fry’s opera, and that then he meant to say “this is done with,” “this is finished.” You are to determine from recollection what the true character of the testimony was. If you are not satisfied that Strakosch proves that fact, then so far as I recollect the evidence, there is nothing in the case which shows any deliberate design upon the part of Bennett to injure Fry. You have then a case in which certain charges have been made, certain things have been said in respect of Fry, as to his general capacity as manager of an opera, and you have heard all the evidence given upon that subject, the various acts which have been attributed to Fry, showing his unfitness as a manager, and the opinions of those experienced men who have been connected with operas, that Fry was not a competent manager. So far, therefore, as that fact is considered, Mr. Bennett has done nothing more than freely to criticise the conduct of this opera, as a public thing so far as the public is concerned. He cites instances where his opera was right or wrong: I do not enter into that at all. Then, Mr. Fry stands charged in these libels with doing certain things with respect to certain employees of his, of an oppressive and an unjust kind. It attributes to him personal misconduct, and such as, if true, would properly degrade him in the estimation of the public, and all persons who might become acquainted with him. These charges relate to Pico, Truifi, Benedetti and Rosi. As to Rosi, I remember there is nothing very material. As to Pico, the charge is that Mr. Fry took advantage of the sickness of Pico, by which she was unable to play as she was directed to do, to cancel her engagement, it being a part of the contract with all of them, that if any one should feign sickness he had a right to cancel the engagement, and that he unjustifiably took advantage of' that circumstance when she was sick,

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to cancel the engagement. That leads to the inquiry of the fact whether Pico was sick or not; you have heard all the evidence upon that subject; if you come to the conclusion that Pico was shamming sickness upon that occasion (and that is the bearing and effect of the evidence), then Mr. Fry had a right to cancel her engagement, and is not justly chargeable with any -oppressive conduct towards her in that respect. If, on the contrary, she was really sick, and Mr. Fry knowing that, or having reason to believe that, canceled her engagement, then it was an act of injustice and oppression upon his part, and so far this part of the libel is justifiable. Then, with respect to Truffi and some others, the allegation here was, in the first place, that they were oppressively and hastily required to go to Philadelphia ' upon short notice, and upon a stormy day, after having sung at a concert upon the previous evening, and that that was ungenerous. It appears that some portion of those artists, at all events, were apprised a week beforehand that they would be expected to sing in Philadelphia upon a given night, and some of them were apprised of it, so far as the evidence shows, for the first time upon the occasion of the concert; the effect of it was that instead of going on in the morning train they went with the afternoon train. It did not amount to much one way or the other, they arrived at Philadelphia. This opera of “Norma” was put in rehearsal, and was brought out upon the evening we have heard; Miss Truffi undertook to perform the part of “Norma,” which, I suppose to be the principal female part in that opera. She began her' exhibition upon the stage, and, after proceeding a little way she stopped, made a sign to the audience that she could not proceed, and retired from the stage, and the performance of that night was broken up. Now, then, as I understand the allegation to be, it was asserted upon the part of the plaintiff that this- sickness of Truffi was a pretense. I observed in the summing up of counsel for the plaintiff, that he seems to think that nobody has denied the fact that Truffi was sick. All along I had supposed the point of the thing was whether this sickness was pretended, and a great deal of the evidence seemed to have a bearing upon that, especially that evidence which went to show that she retired from the stage laughing, as one of the witnesses has said, and then some remarks made between her and Benedetti, showing that

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Benedetti considered everything had been done to break down Mr. Fry. I allude now to the expression which appeared to have been made by Mr. Benedetti, that “this was the way to finish the American Jackass.” All that language, gentlemen, that took place, seems to me to be in conflict with the idea that Truffi was really sick, but perfectly consistent with the idea that she pretended to be sick, and resorted to this expedient for the-purpose of producing that effect. You will consider whether she was or was not sick; if she was, she was justified in retiring, and no allegation could be made against her in that respect. The complaint of Truffi, as I understand it, arises from the fact that after she had broken down, as she says, from sickness, Mr. Fry caused to be published in a newspaper in Hew York the announcement that she had failed, without assigning the cause of sickness, but leaving it to be inferred that she had broken down from want of. capacity to perform her part. That he had an agency in procuring that to be inserted, there is no question as to the particular publications in question, but that a telegraphic dispatch was sent to Mr. Sherman, from Philadelphia to this city, and it is clearly established that the fact of the failure of this lady, in Hovember, was made public. Upon the other hand, it is alleged, in the first place, that it was an unusual thing for the manager of an opera to seek to discredit his performers, and that it was unjust if the publication was made without giving the cause which truly existed, if, in point of fact, Truffi was sick. Therefore, you will consider what the truth of the matter is upon the evidence in that respect. Then, as to Benedetti; there was a serious quarrel between Fry and Benedetti. Benedetti appears to have been a man probably having pretty lofty notions of his importance as a singer,, and he was not inclined to submit very readily to discipline, which is fully inferable from the circumstances of the case. It seems that the part of Pollione, in “Horma,” had been assigned to him, but owing to his being sick or complaining of sickness, a certain other person had been substituted in his place; and afterwards when Fry proposed to Benedetti to resume the part upon becoming able, he objected on the score of etiquette'; that the part having been assigned to Arnoldi, it was the etiquette of the profession that it could not be taken from him, without his

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consent; that if he sung in that part, Arnoldi must write to him a note, stating his willingness that he should do so.

It seems upon an evening on which a certain other opera was sung, Mr. Benedetti declared to Mr. Fry, that he would not sing at his (Mr. Fry’s) request, with Madame Laborde, because she was incompetent to sing, in Italian opera, the part of “Horma.” At the same time he said that she was a good performer in certain other characters. They came to a quarrel, gentlemen; Mr. Fry went upon the stage and announced to the audience, at the termination of one of the acts of the opera then performing, that Benedetti declared he would not sing in the opera of “Horma” with Madame Laborde. Benedetti heard of that; they got together and had a quarrel and a contest, of which they give various accounts. Blows were attempted to be interchanged, and Benedetti made a thrust with his sword, which resulted in a little injury, a scratch on the hand of one of.the gentlemen who busied himself in the matter of getting up and conducting the opera." Then, it seems, as the defendant alleges, that it was conceived between Mr. Fry and his friends (speaking of certain persons whom Foster calls the “ Grand Divan,” or “ Council of War,”) that Benedetti should be punished, or rather, to speak more accurately, that Fry should be sustained, or otherwise Benedetti would get the mastery of him, and in order to do that, this witness says it was conceived that Benedetti should be hissed upon the occasion of “Horma,” he having, upon application of the committee, consented to appear in “Horma," on Friday night, and when that had been done sufficiently to manifest the indignation of the public, that then Mr. Fry would come upon the stage and solicit the public to permit Benedetti to perform his part, and Foster says that was done accordingly. If that was so, gentlemen (and there is nothing to contradict it), and it is proper to remark, that it was a fact easy to contradict, if it did not exist, because the gentlemen who conceived this thing were at hand, and could have been examined as witnesses, if Foster misrepresented this matter, then it would probably give us the true character of that quarrel between Benedetti and Fry. Taking it all together, I do not think that amounts to much. You will, however, consider that, keeping in mind, gentlemen, the nature of these libels, that one set of them, or

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some portion of them, apply to Mr. Fry’s character as a manager of an opera. Statements as to his fitness or competency, the law permits to be made, provided they are made in good faith, and provided that the party does not falsify the facts in order to loase upon those false facts, statements which might be injurious. In respect to the other, you will keep in mind the charge that Fry had used oppressive and unjustifiable conduct in dealing with his employees, seeking, as the libels say, to find a pretense to cancel his engagements with these artists, and introduce others in their stead. That is a fair representation of the character of these libels from the general scope of the evidence. As to the damages, that is a matter which, undoubtedly, in the main, rests Upon your sound discretion. If you believe that the libels are not true, or have/been libels published in respect to a man carrying on a particular kind of business, in regard to his conduct in that business, and have been a source, no doubt, of pain and mental suffering to the party libeled, that is a thing you have a light to take into consideration. If you find there was actual malice in Bennett, and that he acted upon the design to break down Fry, then that presents a case of considerable, I may say great, aggravation. Taking- all these things into view, if you Rnd for the plaintiff in this matter, you will assess these damages, taking constantly into view the application of 'this principle, and leaving out of view anything growing out of what has been said as to the character of his newspaper, about which there is no evidence before us, any more than that the paper forms the libel, and, divesting yourself of all feeling of that kind, then say, in the exercise of a sound discretion, what damages ought to be assessed.

The jury rendered a verdict in favor of the plaintiff, for $6,000 damages. From the judgment entered on that verdict, the defendant appealed to the General Term.

B. Galbraith, John Townshend and David Dudley Field, for appellant.

I. The first statement of a cause of action is defective in not stating a cause of action.

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II. The like of the 2d, 3d, 4th, 5th, 7th, 9th, 10th, 11th and 12th statements of causes of action.

III. If any one of the statements of a cause of action is defective in not stating sufficient to constitute a cause of action, the whole judgment must be reversed, and a new trial ordered. (Cheetham v. Tillotson, 5 Johns., 434 ; 11 Jurist, 1011.)

IY. The first trial having taken place before the late Chief Justice he should have yielded to the request of the defendant to have the second trial before one of the other Justices of the Court. (Schermerhorn v. Van Alen, 13 How. Pr. R., 82.)

IY. a. The reply was a part of the pleadings, and it was error in the Judge to exclude or disregard it.

Y. The statement of the circulation of the Herald read from the newspaper produced by the plaintiff was not the best evidence of the circulation.

1. It was only an average, and was not any evidence of the circulation of the papers which contained the alleged libels.

2. The plaintiff might have called the defendant or any one having a knowledge of the circulation to prove the circulation.

3. The daily circulation is made up of several editions, and the alleged libel might have appeared in only one edition.

4. There was no proof that the defendant was responsible for what appeared in the Herald of 1851. From the fact of his being editor in 1848 and 1849, it is not to be presumed he was, editor in 1851. (McLeod v. Wakly, 3 Car. & P., 311.)

Y. a. The defendant had the right to open and close; and the Judge erred in ruling otherwise and giving the opening and close to the plaintiff.

YT. It was not competent to the plaintiff to prove express malice unless he admitted that the alleged libels were prima fade privileged. (Howard v. Sexton, 4 Comst., 157; Root v. Lowndes, 6 Hill, 520 ; Washburn v. Cook, 3 Denio, 112 .)

1. Hew matter in the answer is considered as controverted or avoided, not controverted and avoided.

YII. The testimony of Strakosch did not show any malice in making the alleged libels, but at most only a. threat of the defendant towards the plaintiff, and there was nothing to connect that threat with the alleged libels. The 78th, 79th, 80th, 81st

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and 82d exceptions were therefore well taken. (Commonwealth, v. Bonner, 9 Metc., 410 ; Bush v. Prosser, 13 Barb., 228 .)

VIH. An unlicensed representation of operas is unlawful, and a party cannot sustain an action for a libel on him in an illegal occupation. It was incumbent, therefore, on the plaintiff to allege and prove a license. The thirtieth (30th) request to charge should have been complied with. (Laws of 1829, ch. 302, § 4; Laws of 1839, ch. 13; 2 Starkie on Slander, 87; Hunt v. Bell, 1 Bing., 4; 7 Moo., 212; Yrissari v. Clement, 3 Bing., 432.)

If the plaintiff was entitled to recover without alleging a license, then the proof of a license was irrelevant and improper, and the twenty-fifth (25th) exception was well taken.

IX. The programme published by the plaintiff ought not to ■ have been received in evidence in support of his case. The thirteenth exception was therefore well taken.

The alleged libel was that the plaintiff, on the strength of a pompous programme, had, &c. If the defendant did not prove this to be so his defense might fail for that cause, but the plaintiff could not properly be permitted to insist on proving the allegations of the defendant’s answer. The question was not whether the programme was or was not pompous, and whether it was or was not pompous was wholly immaterial; but the question was, did the plaintiff, on the strength of that programme, procure subscribers. There was no better reason for admitting the programme in evidence at this stage of the trial than when it was offered and rejected.

X. The defendant should have been allowed to put the question to the witness (Maretzek) as to the effect of the alleged libels on the house, or the filling of the house; if not, to show that the alleged libels benefited the plaintiff, at least to show that he did not sustain any loss in his business thereby.

XI. The defendant should have been permitted to put the question to the witness (Maretzek) as to the plaintiff’s manner towards his artists. The manner of the plaintiff towards his artists was a principal matter in issue.

XH. The ruling, admitting the question, “ did he (Benedetti) complain of being sick?” &c., was erroneous. The evidence asked for was hearsay only.

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XIII. /The answer of Dr. Trudeau, that “ Madame Pico, as far as I recollect, was a straightforward, honest, honorable woman, who never sent for me unless she really was sick, and in my opinion would not try to deceive any person,” should have been suffered to be read to the jury. (The exception to the decision excluding it, is well taken.) "Whether Pico was sick or not was a material inquiry, and it was important to ,the defendant to establish her character for veracity. The plaintiff sought to contradict her.

XIV. The questions to Maretzek, as to the conduct of Truffi and Benedetti towards him, and his advice to the plaintiff, should not have been allowed.

XV. It was improper to permit the witness La Eata to testify as to what was said by Benedetti; if the questions were proper they should have been addressed to Benedetti.

XVI. The witness (Ulrick) should have been allowed to state what was the plaintiff’s treatment of him.

XVII. Counsel in summing up a cause should confine their observations to the evidence adduced and to the matters in issue, and the Court should stop them when they exceed these limits. The Court therefore should have complied with the request of the defendant’s counsel to stop the plaintiff’s counsel in his remarks at page 285. (Mitchell v. Borden, 8 Wend., 570 .)

XVIU. The Judge erred in refusing to charge the jury, (according to the 24th request, viz.): “ There is no complaint on the part of the plaintiff of any attack upon his private character, or o'f any publication which relates to him in any other character or capacity than his situation as a manager of the Italian Opera Company, and his qualities and acts as such manager.” The correctness of the statement contained in this request is apparent on the face of the pleadings, but the refusal of the Judge to charge as requested was calculated to lead the jury to believe the fact was other than as stated in the request.

XIX. The Judge erred in refusing to charge the jury, (according to 25th request, viz.): “As the conductor and manager of an Italian Opera Company, while engaged in making public representations, the personal qualities of the plaintiff for that station, his public appearance before his audiences assembled to witness them, and his treatment of, and official relations to

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his artists, were all lawful subjects of comment and criticisms. Every individual had a right to form and express, by speech or by writing, his opinions in relation to them.” (Gregory v. The Duke of Brunswick, 6 M. & G., 953.)

XX. The Judge erred in refusing to charge the jury, (according to the 26th request, viz.): “That if the jury shall believe that the remarks made in the Herald which were complained of, were published with an honest belief in their truth, for the Iona fide purpose of commenting on the conduct and qualities of the plaintiff as such manager of the opera, their publication by the defendant is excused in the law, whether they be founded in truth, in point of fact, or be just in point of commentary or nót; in such case it is lawful to employ satire and ridicule, as well as “reason and argument.” (Soane v. Knight, 1 M. & M., 74; Hall v. Suydam, 6 Barb., 87 .)

XXI. The Judge erred in refusing to charge the jury, (accord-' ing to the -27th request, viz.): “ That if the jury believe that the matters of fact contained in the several articles complained of were substantially true, the plaintiff is not entitled to recover.”

XXII. The Judge erred in refusing to charge the jury, (according to the 28th request, viz.): “If the jury shall find that any part of the articles complained of were not in matters of fact strictly correct, then the jury Will determine whether the portions not proved to be true were published by the defendant under the belief that they were true, and with reasonable grounds for such belief; that this affects the question of damages.” (Tremain v. Cohoes Co., 2 Comst., 164.)

XXIII. The Judge erred in refusing to charge the jury, (according to the 29th request, viz.): “That if the jury shall find any ground in the case for giving damages to the plaintiff against the defendant, their verdict should be for such sum only as would compensate the plaintiff for the injury which he has sustained therefrom, and that the jury are not at liberty to give to the plaintiff any further sum by way of punishment of the defendant, or by way of vindictive damages, or as smart money.”

1. The relief cannot go beyond the case made by the complaint and embraced in the issue. (Code, § 275.)

XXIV. The Judge erred in refusing to charge the jury, (according to the 32d request, viz.): “ That the license offered in

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evidence did not authorize the plaintiff to exhibit operas at the Astor Place Opera House, and therefore that he could not recover for any of the alleged libels upon him.”

XXV. The Judge erred in refusing to charge the jury, (according to the 31st request, viz.): “ That the plaintiff could not recover for any of the alleged libels published before the 20th Nov., 1848.” The Judge erred in refusing to charge the jury, (according to the 34th request, viz.): “ That the plaintiff cannot recover for any of the alleged libels upon him published after the 1st Feb., 1849.”

XXVI. The exceptions to That portion of the charge which relates to, defines and illustrates the character and extent of the privileges of the defendant as the editor and publisher of a public newspaper in discussing and criticising the qualifications and conduct of the plaintiff in his management of an Italian Opera Company, (67th exception.) were well taken.

XXVII. The exception to that portion of the charge (68th exception) which is in the words following was well taken: “In one word, in any statement of matters of fact in relation to this principle as well as every other, the party is responsible for the truth of what he states, but is not responsible for his opinion and judgment.”

1. The question is not whether the facts stated are true, but whether the defendant believed them to be true. (Cook v. Hill, 3 Sand. S. C. R., 341; Taylor v. Hawkins, 16 Adol. & El. N. S., 230.)

XXVIII. The exception to the portion of the charge (69th exception) which is in the words following was well taken: “ That arises from the fact that not only is it important to the public that the opinion (the opinion of the critic) should be free, but it is impossible to test it by any rule—the critic may have an honest opinion of a book which is unfavorable and may not be accurate, but he is not responsible for that opinion. Not so with respect to matters of fact: if the critic of a book states a fact contrary to the truth, he is responsible, not for the criticism which he makes but for the false basis which he has assumed.”

1. The statement of facts, or rather supposed facts, is equally privileged with the statement of opinion. (Harris v. Thompson, 13 Com. B., 4 J. Scott, 345; Taylor v. Hawkins, 16 Adol. & El. N. S., 320.)

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XXIX. The exception to the portion of the charge (70th exception) which is in the words following was well taken: “But all those parts of the libels which charged Mr. Fry with unjust, tyrannical and oppressive conduct in reference to his dealings with his artists do not come within the rule.”

1. If the defendant, in good faith, entertained the belief that Mr. Fry was guilty of unjust, tyrannical and oppressive conduct in reference to his dealings with his artists, he, the defendant, had a right to say so. It was not a general charge of unjust, tyrannical and oppressive conduct, but an opinion formed from the facts proved. (Robertson v. McDougall, 4 Bing., 670.)

XXX. The exception (71st exception) that the Judge omitted “ to instruct the jury in relation to the nature and extent of the interest which the public had in the matters which are embraced in the several publications so alleged to be libelous, and to point out the portions of each which would if untrue come within the rule as to privilege, and the portions of each which if untrue would not be protected by said rule,” was well taken. (Wenman v. Ash, 18 Com. B., 4 J. Scott, 844.)

XXXI. The exception to the portion of the charge (72d exception) which is in the words following was well taken: “You have, therefore, to analyze these libels and separate those parts which apply only to Mr. Bennett’s opinions in reference to Mr. Fry as the manager of an Italian Opera, and those which charge him (Fry) with misconduct to his employees, and with seeking to do injury to their professional standing.”

1. The libel was entire, and either the whole was privileged or none of it was privileged. (Cooper v. Stone, 24 Wend., 442 ; Cooper v. Greeley, 1 Denio, 360 ; Root v. Woodruff, 6 Hill, 418 ; Gilbert v. The People, 1 Denio, 43 .)

XXXII. The exception to the portion of the charge (73d exception) which is in the words following was well taken: “For these he is responsible unless he has succeeded in satisfying you that they are substantially true.”

1. Defendant was not bound to prove more than sufficient to show he acted in good faith. (Pattison v. Jones, 3 C. & P., 383; 8 B. & C., 578.)

XXXIH. The exception to the portion of the charge (74th exception) which is in the words following was well taken: “But

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in estimating the damages you are to look at the character of the libels, and the business of the plaintiff, not giving way to any feeling of prejudice, but examining the whole matter like business men and so drawing your inference as to damages.”

XXXIV". The exception to the portion of the charge (75th exception) which is in the words following was well taken: “And that they could take into consideration all the proof before them of any malicious and actual intent to injure the plaintiff.” (Buckman v. Cowell, 1 Comst., 507; Boot v. King, 7 Cow., 621 . Safford v. Wyckoff, 1 Hill, 11 .)

XXXV. The exception to the portion of the charge (76th exception) which is in the words following was well taken: “ But actual malice in making the publication complained of may be proved.”

1. Actual malice can only be proved to defeat the claim of privilege, not to enhance damages.” (BootY. Lowndes, 6 Hill, 520 ; Hoioard v. Sexton, 4 Comst., 157; Washburn v. Cook, 8 Den., 112 .)

2. Malice does not mean personal ill-will. (Commonwealth, v. Benner, 9 Mete., 410; Goodrich, v. Stone, 11 id., 486; Bush v. Prosser, 13 Barb., 228 .)

XXXVI. The exception to the portion of the charge (77th exception) which is in the words following was well taken: “ That may be a different rule of law upon a case when there is . actual malice existing, because if a man by mistake publish a. libel, the law would fix malice upon it only so far as to make him responsible; but it would be a different thing, if instead of publishing it by mistake, he did so with a view to injure the plaintiff.”

1. The true question is what damage plaintiff sustained, not with what intent the act complained of was done. (2 Greenl. Ev., § 253, et seq.; Clark v. Newman, 1 Exch., 131; Tremain v. Cohoes Co., 2 Comst., 164; Clark v. Brown, 18 Wend., 213 ; Taylor v. Church, 4 Seld,, 452.)

XXXVH. The exception to the portion of the charge (78th exception) which represented to the jury the testimony of Strakosch, as authorizing them to find therefrom that either of the publications alleged to be libelous was made by the defendant with an actual malicious intent to injure the plaintiff, was well taken.

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XXXVIII. The exception to the portions of the charge (79th exception) which were in the words following was well taken: “ It has been contended by the counsel of the defendant that the jury were not at liberty to go beyond what are called actual damages—as I understand it that has not been the course pursued by the courts in this state heretofore—also, in regard to this matter, it strikes me that there must be some qualifications to that rule, because the consequence of it would be that in all cases wherein no specific injury could be proved, the damages would be merely nominal.”'

XXXIX. The exception to the portion of the charge (80th exception) which is in the words following was well taken: “ If it should come up to that, then the defendant stands before us as a man who deliberately undertook to do an injury, and if he fail to prove his allegations to be true, he cannot escape with nominal damages.”

XL. The exception to the portion of the charge (81st exception) which is in the words following was well taken: “If you find for the plaintiff,' you will assess such damages as the occasion requires.”

XLT- The exception to that portion of the charge (82d exception) which related to Strakosch’s testimony and the effect of it was well taken.

XLII. The verdict was against evidence, as to the 7th and 9th alleged libels. The truth of these was clearly established.

XLTTT. The damages were excessive. No actual damage was proved.

1. The true question is what damage plaintiff sustained, not with what intent the act complained of was done. (2 Green! Ev., § 253; Ciarle v. Newman, 1 Exch., 131; Tremain v. Cohoes Go., 2 Corns!, 164; Clark v. Brown, 18 Wend., 213 ; Cook v. Bilis, 6 Hill, 467 ; Taylor v. Church, 4 Seld., 452.)

F. B. Sherman, for respondent (the plaintiff).

The only questions of law, of any importance, in this case are:

1st. Did the Court correctly charge the jury what in law constitutes a libel?

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2d. Did the Court correctly charge the jury on the question of privileged publications, as to the extent of that privilege ?

3d. Did the Court correctly charge the jury as to the inuendoes, or meaning of the libels, when, instead of fixing a meaning to them themselves, they left it to the jury to say, as matter of fact, whether the publications were libelous, within the rule laid down ?

4th. Was the evidence of actual malice competent evidence to go to the jury, under the circumstances of this case?

5th. Did the Court correctly charge the jury as to the rule of damages in actions of libel ?

6 th. Are the damages excessive ?

It may be remarked, by way of introduction, as to the question of the meaning of the .libels—whether the articles complained of were libelous or not, how far they assailed the plaintiff’s private or public character—whether they were true or not— whether the defendant published them, believing them to be true or not—whether they were privileged criticisms or not: and the question of damages, these are matters of fact, of which the jury are the sole and constitutional judges.

The Judge, therefore, committed no error in refusing to decide these questions of fact, although the defendant’s counsel, in some twenty-nine requests, chooses to consider them questions of law.

Besides, the defendant in his 31st request, requested the Judge to charge “that whether the articles or any of them are libelous or not is a question for the jury.” This the Judge did do, and not only so, but delivered to the jury a copy of the libels on which the suit was founded, without any inuendoes, or extrinsic matter whatever.

I. The proper course for the Court, in actions of libel, “is not to state to the jury as matter of law, whether the publication is a libel or not, but to define to them what is a libel in point of law, and leave it to them to say whether the publication falls within that definition, and, incidental to that, whether it is calculated to injure the reputation of the plaintiff(2 Greenl. Ev., p. 406, § 411 (4th ed.); Parmenter v. Copeland, 6 Meeson & W., 105; Dolloway v. Turrill, 26 W., 383 ; Court of Errors.)

II. The rule as to privileged criticism was correctly held by the Court, because, according to General Hamilton’s definition

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of libel, (in People v. Croswell, 8 Johns. Cases, 354; approved in Steele v. Southwick, 9 Johns., 215 ; and said to be drawn with the utmost precision in Riggs v. Denniston., 3 Johns. Cases, 205; and again affirmed in Cooper v. Greeley, 1 Denio, 359 , and .authorities there cited) “The liberty of the press consists in the right to publish with impunity, truth, whether it respects government, magistrates, or individuals,” and in criminal prosecutions, the truth, with good motives and justifiable ends.

(People v. Croswell, 3 Johns. Cases, 394.) Kent, J.—“The founders of our government were too wise and too just, ever to have intended, by the freedom of the press, a right to circulate falsehood as ioell as truth, or that the press should be the lawful vehicle of. malicious defamation, or an engine for evil and designing men to cherish for mischievous purposes, sedition, irreligión and impurity. Such an abuse of the press would be incompatible with the existence and good order of civil society.”

The fact that the plaintiff is an author or a manager of an Opera Company, and the defendant an editor of a newspaper, makes no difference.

( Carr v. Hood, 1 Campb., 354, though not going the length contended for by the defendant’s counsel, was overruled in Cooper v. Stone, 24 W., 441 .)

In Dibben v. Swan, 1 Esp. R.,zz 28, Ld. Kenyon, J., said in a case like the present, “ The editor of a public newspaper may fairly and candidly comment on any place of public entertainment, but it must be dozne fairly, and without malice, or view to injure or prejudice the proprietor in the minds of the public. That if so done, however severe the censure, the justice of it secures the editor from legal animadversion; but if it can be proved that the comment is unjust, is malevolent or exceeding the bounds of fair opinion, that such is a libel, and, therefore, actionable.”

HI. The meaning of the libels, as alleged in the inueridoes, or what substantially they did mean, was a question of fact for the jury under the rules of law laid down by the Court; (Fry v. Bennett, 5 Sand. S. C. R., 55; Barrett v. Long, 16 Eng. Law and Eq. R., 1852, House of Lords, 12.)z

IF. The question of .malice was a material issue in this cause.

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The plaintiff averred that these publications were false and malicious. The defendant answered that they were true, were published without malice, and were privileged criticisms.

1. Malice, therefore, if proved affirmatively, makes out the plaintiff’s case, and negatively destroys the theory of the defense, as to belief, motives and privilege. In this point of view, Strakosch’s testimony was given in evidence, and was entirely competent.

2. Evidence of actual malice was clearly admissible on the question of damages. (King v. Root, 4 W., 114 ; Barrett v. Long, 16 Eng. L. and Eq. R., 12.)

3. Besides, this evidence of malice was part of the transaction, showing the origin and cause of these libels, and a link in the chain of circumstances in the case.

Y. Did the Court correctly charge the jury as to the rule of damages in actions of libel?

The charge of the Court upon this point was unexceptionable. The terms “exemplary damages,” “smart money,” “vindictive damages,” or the like which are sometimes used, and have been approved by the Courts in England, and I believe all the states in the Union, were not used in the charge.

(Greenleaf on Ev., 4th Ed., p. 280, § 267.) “Injuries to the person or to the reputation consist in the pain inflicted, whether bodily or mental, and in the expenses and loss of property which they occasion. The jury, therefore, in the estimation of damages, are to consider not only the direct expenses incurred by the plaintiff, but the loss of his time, his bodily sufferings, and if the injury was willful, his mental agony also, the injury to his reputation, the circumstances of indignity and contumely under which the wrong was done, and the consequent public disgrace to the plaintiff, together with any other circumstances belonging to the wrongful act, and tending to the plaintiff’s discomfort.”

( 9 Law Rep., 530 .) “ The plaintiff, it is true, would not be confined to the proof of actual pecuniary loss, for it has always been held that the jury might take into consideration every circumstance of the act which injuriously affected the plaintiff, not only in his property, but in his person, his peaoe of mind, his quiet and sense of security in the enjoyments of his rights, in short

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Ms happiness. These views are in accordance with the law as laid down in 2d Grreenl. on Ev.”

VI. The damages are not excessive.

There are a few additional exceptions that deserve some notice, not taken on the former trial, as to who had the right to begin, and that plaintiff had not alleged nor proved a license to open a theatre.

I. Counsel for defendant claimed the right to open the cause, as the affirmative of the issues was with the defendant.

The Judge decided that the plaintiff had the right to begin. Defendant excepted.

This decision was right on principle. (Archbold’s Nisi Prius, vol. 1, p. 4.)

“ In actions for personal injuries, as for libel or slander, the plaintiff shall in all cases begin, no matter what the pleadings may be. This has been laid down at a meeting of the judges, (15 in number,) as a rule to be observed in future.” (Garter v. Jones, 6 Car. & P., 64; Day v. Woodivorth, 13 How. U. S. R., 363.)

The plaintiff has the right to begin and state what the cause is in any case. This is all the Judge decided, and this is all the defendant excepted to. (Archbold’s N. P., vol. 1, p. 4.)

Defendant should admit the facts, or at least a prima facie case, to entitle him to begin; but defendant admitted neither. (Wigglesworth v. Atkins, 5 Cush., 212 .)

The right to begin and reply is mere matter of discretion restmg with the Judge at the circuit. (C. & H. Notes to Phil, on Ev., p. 647, part 1, note 342, old ed., p. 483.)

II. The defendant moved to dismiss the complaint, and separately each cause of action therein contained, on the ground that they did not state, or either of them state facts sufficient to constitute a cause of action; and also to dismiss the complaint, because the plaintiff had not alleged that he was licensed to open and continue open such theatre, and as the opening and continuing open such theatre was unlawful, the plaintiff cannot sustain an action for a libel upon him in such illegal capacity.

He also requested the Court to charge “ that plaintiff cannot sustain an action for libel upon him in such illegal capacity.”

His 32d, 33d and 34th requests to charge, relate to the effect of the license offered in evidence:

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As to the first exception, “ that the complaint does not state facts sufficient to constitute a cause of action.” This is res adjudicata in this Court. (Fry v. Bennett, 5 Sand. S. C. R., 75; same case, 4 Duer, 248 , 651.)

As to the other objection, “illegal capacity to sue.” This is expressly waived by statute, not being taken advantage of either by demurrer or answer. (Code, § 148, Zabriskie v. Smith, 3 Kern., 336; People v. Bancker, 8 How. Pr. R., 261.)

In any case under the Code where the defense is usury, a misdemeanor, an illegal business prohibited by statute, if not set up as a defense, it is waived.

That plaintiff was an unlicensed manager of a theatre, if true, is mere matter of defense. (Rodwell v. Redge, 1 Car. & P., 220, and note.)

Besides, the question of license or non-license is quite collateral, having nothing to do with the issues between these parties, the defendant himself insisting that the publications on the face of them, and the proofs and admissions showed that the plaintiff da facto acted in the capacity of opera manager, which is all that is required for the purposes of this action.

(Berryman v. Wise, 4 T. R., 366.)

By the Court.

—(Plaintiff’s Point IV.) An exception was taken to the decision of Ch. J. Oakley, declining to direct the cause to be tried before some other Judge of the Court. There had been a previous trial of it before the Chief Justice ; a new trial had been granted by this Court at General Term, and when this motion was made, the cause had been again reached, and called in its order on the calendar. The case states that this decision was made, after the Chief Justice had consulted with his brethren, in relation to the question raised by such motion.

We know of no recognized principle which will justify a Judge holding a Circuit Court, to direct a cause on the calendar, when reached and ready to be tried, to be postponed and wait its opportunity to be tried before another Judge, merely because it had been previously tried before himself. The considerations of inconvenience and delay, resulting from such a practice in the Circuit Courts as they are generally constituted, would not, it is

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true, exist to the same extent, with reference to a court organized as this court is. But that view cannot affect the legal rights of the parties, nor the legal duty of the presiding Judge. The objection by either party to retrying a cause before a Judge before whom it had been once tried, would apply with nearly, if not quite as much force to trying it before either of the Judges who sat at General Term, and heard the argument which resulted in granting a new trial. For it is to be presumed that they thoroughly examined the evidence, and formed opinions as to the merits according to such evidence, especially in a case where, as in this one, a new trial was sought as well on the ground of excessive damages as for erroneous decisions of questions of law. Even if such a presumption should not entirely and in all respects accord with the fact, yet it would be true that the Judge who examined and scrutinized the evidence most closely, and made himself most familiar with its details, would be most obnoxious to such an objection, because the inference would be just, that he had more decided views with respect to the whole merits as developed by the evidence given on the first trial, than one who had given less attention to the evidence in all its particulars.

It is no part of 'the province of a Judge to find the facts, and there is no reason to suppose that on a second trial he will not apply any rules of law determined by the court which granted a new trial, with as much firmness and accuracy as if he was a stranger to the cause. Any judge would willingly be relieved from trying a cause, which he knew either party was averse to trying before him. But although he might be disposed to gratify any such prejudice of either party, he is not at liberty to refuse to try a cause, when reached and ready to be tried, for any reason which the law does not recognize as sufficient. The ground of objection assigned will not warrant us in granting a new trial either because it was erroneous to overrule it, or because in the proper exercise of judicial discretion it should have been sustained.

(Y. a.) The decision that the defendant had not a right to open the cause to the jury was not erroneous. The action being one to recover damages for a tort, and one in which punitory damages might be given on proof of facts authorizing

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it; the orderly course of proceeding made it proper that the plaintiff, before resting, should not only establish an apparent right to recover some damages, but should give all the evidence on which he relied to affect the amount of the recovery.

As to the privileged matter forming a part of the alleged libels, it was essential to a right to recover to prove malice or bad faith in publishing it. As to snch matter, the burden of proof was on the plaintiff, and he was obliged to prove the affirmative of the issue.

(IV. a.) The Judge at the trial decided that the complaint and the amended answer to it, served on the 13th of May, 1852, constituted the only pleadings in the action, on which it was to be determined what were the issues to be tried, and that the reply served on the 13th of January, 1852, and the amended reply served the 23d of April, 1852, did not form any part of such pleadings : to this decision the defendant excepted.

After those two replies had been interposed, the defendant was allowed to amend his answer, and he served an amended answer on the 13th of May, 1852. At .that time chap. 392 of the Laws of 1852 was in force. That chapter abolished a reply, except to an answer setting up new matter constituting a counterclaim. (Laws of 1852, pp. 651, 654, 655, §§ 153, 168.)

The two replies ceased to be pleadings in the action on and after service of the amended answer, in the sense that they then formed no part of the pleadings by which the issues to be tried were formed. Those issues arose upon the complaint and the amended answer of the 13th of May, 1852, and upon them alone. Neither reply was offered by the defendant as evidence,' against the plaintiff, of any fact stated in it.

(V.) An exception was taken by the defendant, to a decision allowing the plaintiff to read from a number of the Herald issued on the 15th of December, 1851, so much of an article in it, as related to the circulation of that paper, at the time of the alleged libel. The grounds of exception were, that the matter was not shown to be relevant, and that such testimony could only be given to prove special damages, and no special damages were alleged; and that the “ circulation of the Herald was stated in the complaint to be so much, and that fact not being denied was admitted.”

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The extent of the circulation of the alleged libels was relevant and competent, even though no special damages had been alleged. The extent of the circulation was a constituent part of the wrong done to the plaintiff, if the publication itself was wrongful.

The complaint states that the Herald was a paper “ of large circulation, and boasting of a circulation of 20,000 copies daily.”

This does not state the extent of the circulation, and there is nothing in the terms of this averment, which made it erroneous to admit proof of its exact circulation.

(Point VII.) The testimony of Strakosch was offered to show express malice, and was objected to by the defendant “ on the ground that it was incompetent and irrelevant.” It was allowed to be read, and the defendant excepted to the decision.. This court has decided in this action, that evidence to prove that fact was admissible. The reasons in support of that decision are stated at length in Fry v. Bennett ( 4 Duer, 247 ), and need not be here repeated.

That decision also disposes of the defendant’s sixth point made on this appeal, viz.: That “ it was not competent to the plaintiff to prove express malice, unless he admitted that the alleged libels were, prima facie, privileged.”

Such portions of the libelous matter as are, pn-ima facie, privileged, called for such evidence, or evidence showing they were ' published in bad faith, to entitle the plaintiff to recover damages for the publication of them.

As to all such portions as are of themselves actionable, proof of actual malice in publishing them was admissible, if the points ruled in Fry v. Bennett (as reported in 4 Duer, 247 ), were correctly decided.

(Point VIII.) When the plaintiff rested, the defendant moved to dismiss the.complaint on the ground, among others, that each of the libels was of the plaintiff as the manager of a theatre in the city of New York; that opening such theatre without a license was unlawful, and that it was necessary to allege in the complaint the fact of the grant of such a license, and even had that fact been alleged it was unproved, and the plaintiff could not maintain an action for a libel of him, in such illegal capacity.

The motion was, denied, and the defendant excepted.

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In a subsequent stage of the cause, the plaintiff gave in evidence a license, dated the 20th of November, 1848,’ by the then mayor of New York, authorizing “D. P. Fry” to open and keep open the Astor Place Opera House, for theatrical performances, for “three months, commencing from the 1st day of November, 1848, and ending on the 1st day of February, 1849.” “This evidence was objected to, as incompetent and irrelevant,” and the decision admitting it was excepted to by the defendant.

The defendant requested the Judge to charge that the plaintiff could not recover for a libel of him as a manager of a theatre, without alleging and proving a license to open and continue it. Also that the license offered in evidence did not authorize the plaintiff to exhibit operas, and, therefore, he could not recover for any of the alleged'libels upon him.

Nor for any of those published prior to the 20th of November, 1848.

Nor for those published after the 1st of February, 1849.

If the “ operas ” of which the plaintiff was manager were not “theatrical performances” within the meaning of those words, as used in, “ An act to amend ‘ an act to create a fund in aid of the Society for the Reformation of Juvenile Delinquents in the city of New York, and for other purposes,’ passed February 1, 1839,” then that act does not reach them, and there is no law interfering with the right of any person to provide such amusements, although not licensed. (Session Laws of 1839, p. 11, chap. 13.)

The act thus amended declared that every person offending against the provision requiring a license should be guilty of a misdemeanor, and be subject to a fine of $100 for each day, or imprisonment not exceeding three months. (Laws of 1829, chap. 302, p. 436, § 4.) But that section was repealed by the act of the 1st of February, 1839. The latter act does not, in terms, declare that such exhibitions, without a license, are unlawful. The original act made the giving of them without a license indictable. By so amending the original act, in 1839, that a person giving such exhibitions without a license could not be indicted, the legislature seem to have regarded such acts as not, in themselves, immoral or opposed to public policy, but as a business or pursuit which might not improperly be taxed in aid

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of the reformation of juvenile delinquents in the city in which such business was prosecuted.

Though unlicensed, no indictment will lie under 2 R. S., 696, § 45. The provisions of the act of February 1, 1839, are peculiar. That act requires the proprietor or manager to “annually obtain” a license. For not taking “out such license,” “ or consenting to or allowing such performances without first taking out the same,” every manager or proprietor shall be subject to a penalty of $500, “for every such neglect or omission.” (§ 1.)

Section one does not declare how much must be paid or may be charged for an annual license. Section two authorizes a license to be granted for a term less than a year, and provides that, when it is for three months or less than one year, the mayor may “ commute for a sum less than said $500, but in no case less than $250, for a theatre.”

"Whether exhibiting from the first of May or any later period in any one year, to the first of May in the following year, would subject the manager or proprietor to any penalty beyond $500 in all, it is unnecessary to determine.

The whole object of the act seems to be, to raise a revenue for a particular purpose.. If the revenue is not paid and a license obtained before the business is commenced, it may be recovered by action, and the proprietor or manager may be restrained by injunction, until such license has been duly obtained, and the order of the court granting the injunction, as to the costs of the action, has been complied with. •(§ 4.)

We do not feel at liberty to hold that opening a building for the exhibition of the opera, and the exhibition of the same without a license, is illegal in any such sense, that an article published of the manager as such, cannot be made the basis of an action for a libel on the mere ground of illegality of such business. (Brown and others v. Duncan, 10 Barn. & Cres., 93.)

(Point IX.) The admission of the programme in evidence could not have prejudiced the defendant. It was made a subject of comment in one of the alleged libels, which charged that on the strength of a formal and pompous programme of arrangements, he succeeded in procuring a large and liberal subscription from our citizens to aid the Opera. That article then proceeds to

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state various matters, alleged to be libelous, most of which are attempted to be justified on the ground of their truth, or of their being privileged communications.

The contents of the programme were not irrelevant matter, and although it may be true, as this point asserts, that if the defendant did not prove his allegations, as to what the plaintiff had done on the strength of this programme, his defense would fail pro tanto, still the programme was not, for that cause, irrelevant matter, and its introduction cordd not possibly, so far as we can see, have prejudiced the defendant.

It was competent for the plaintiff to produce the programme, and thus show what he promised to do, and that his promise had been kept.

{Point X.) The defendant’s counsel put to a witness this question : UQ. What was the effect upon the house, or the filling of the house, of the articles that were published in the Herald, and which are now complained of?”

To this question the plaintiff objected, the Court excluded it, and the defendant excepted.

Their effect was to be determined by the jury as a question of fact, upon evidence other than the mere opinion of witnesses. We know of no principle which admits the mere opinion of a witness as competent evidence upon such a question. The witnesses are to state facts and circumstances, and it is the province of the jury to determine upon the facts which they find established by the evidence, the issues made by the pleadings.

{Point XI.) The defendant’s counsel also put this question to a witness:

“ Q. What was Fry’s manner to his artists ?

“To this question the counsel for the plaintiff objected.

“His Honor the Chief Justice sustained the said objection, and to his decision thereon the counsel for the defendant excepted.

“ Q. How did Fry treat his artists?

“ The Court. Ask whether he saw any ill treatment to any particular individual.

“ Q. I only ask the fact. State any fact to the jury, showing what Fry’s treatment of his artists was ?

“ A. I can say that he did not treat me badly.

“ Q. But as to others ?

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“ A. I know that he had some quarrels with Rosi and Pico.”

The question objected to, in connection with the succeeding questions and answers, shows that the Court intended, and must have been understood to have intended, to allow the witness to state any facts or circumstances which would aid a jury in determining what his actual manner and treatment were, and that the decision, excepted to, only excluded the opinions and conclusions of the witness in respect to the subject matter of the inquiry. We think the decision was not erroneous.

. {Point XII.) Dr. Robert Eorbes, who had visited Benedetti professionally, was interrogated by the plaintiff’s counsel thus:

“ Q. Did he complain of being sick, and how did he appear ?

“ The defendant’s counsel objected to the question, on the ground “ that Benedetti should have been first asked about it.” The Court overruled the objection and the defendant excepted.

“ A. He complained of having been sick a day or two, and there was evident proof in his appearance that he had been.

“ Q. What seemed to be his disease ?

“A. Inflammation of the throat, extending to the chest. A severe influenza was the trouble.”

The defendant did not except to the form of any of these questions, nor object that specified parts of any of them were improper. The Chief Justice decided that “ any fact such as that a man is sick, is proper to be proved,” without first having asked such man, who had been previously examined, whether he was sick or not. The defendant excepted to this ruling of the Court.

Whether Benedetti was in fact sick, was a pertinent inquiry. Being so, it was a fact proper to be proved, whether he had been examined to the point or not, and if he had, without regard to what he had testified, in answer to that question.

{Point XIII.) The expression by Dr. Trudeau (in his de bene esse deposition) that “ Madame Pico, as far as I recollect, is a straightforward, honest, honorable woman, who has never sent for me unless she really was sick, and, in my opinion, would not try to deceive any person,” was properly excluded. It was a pertinent and material question, whether she was actually sick. His opinion and estimate of her generally had no bearing on that question.

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{Point XIV) When Maretzek was asked whether, at the place named, Truffi aud Benedetti had been guilty of any unbecoming conduct to him, as leader of the orchestra, and what they did ? The counsel for the defendant objected “to the putting this question in these words and the answer thereto,” and excepted to the decision overruling the said objection. That question was not answered. At all events it does not appear to have been; but the testimony given was elicited by other questions, subsequently put, to the form of which no objection was made. The exception, therefore, is left without the support, the existence of ■which its terms imply. As the question, which was objected to on the ground of the words in which it was expressed, was not answered at all, the ground of the objection failed, and that exception need not be further considered.

It may be added, however, that the witness, at the time these questions were put, was under cross-examination. He had spoken of the fact that Benedetti had offered an insult to him, during the performances in question; and had given evidence tending to show a concert between Ery and his friends to put Benedetti down; and the question: “ I want to know if you advised Mr. Fry to send to Europe to get somebody else instead of Benedetti?” we do not feel at liberty to say was outside of the limits of an allowable cross-examination.

The nature and extent of the questions that may, properly, be put to a witness, by way of cross-examination, depend much upon the circumstances of each case, and rest largely in sound judicial discretion. (Lawrence v. Barker, 5 Wend., 301 to 305.)

{Point XV) The objections to La Fata’s testifying, as to what Benedetti said, on the stage in Philadelphia were, as first taken, that the testimony was “incompetent and irrelevant,” and as subsequently stated, “that Benedetti had not been inquired, of as to what he said.”

He had been asked whether he had not stated as La Fata testified he did. The latter ground of objection, therefore, does not in fact exist.

What Benedetti was proved by La Fata to have said, cannot be regarded as irrelevant, when the time and place of saying it are considered, in connection with the inquiry, whether Fry was guilty of harsh and tyrannical conduct towards him and Truffi;

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these remarks having been made to her, just after she had fainted and been taken from the stage. Whether she fainted and failed to perform her part from physical inability to go through with it, or feigned sickness, was a question litigated before the jury. What was said to her at the timé, and her reply thereto, or her omission to reply, are not irrelevant matters. We do not think these exceptions well taken.

{Point XVI.) There was no error in excluding the evidence offered to be proved by Ulrick. It does not appear that he was one of Pry’s employees during the period of giving the operatic representations in question. If it did, proof of the general fact that Fry would not pay all he owed to the band of which the witness was one, and managed to get several of them in prison, has no obvious connection with the issues in this action. On this point, the case reads thus:

“ Edward Ulrick sworn: Examined by defendant’s counsel:

Q. What is your business? A. A musician. Q. Had you charge of a band or company, in 1847? A. I had. Q. Were you employed in Fry’s company ? A. Yes. Q. Were you one of a band? A. Yes; the Lagonian Band. Q. How many persons did it consist of? A. Twenty-two. Q. You were all employed by Fry? A. Yes. Q. Did he treat you well ? A. Fo, sir. Q. What did he do to you? Objected to by Plaintiff’s counsel.

“Defendant’s, counsel.—I offer to prove that Fry had the services of these men—of this band—for a considerable period, and was in debt to them between $300 and $400, and would not pay them, and that he managed to get several in prison. Question excluded by the Court, and exception taken.” We have thus briefly noticed all the exceptions taken before the testimony was closed, to which our attention was called on the argument of this appeal, or which are covered by the points of the appellant furnished to the Court on the argument, except the' first three which have heretofore been decided adversely to the defendant by this Court at General Term.

It only remains to notice such of the exceptions taken to the charge as made and to requests to charge, as have been argued or called to our attention during the argument. A single exception was taken while the plaintiff’s counsel was summing up, which will be first noticed.

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(Point XVII) The case at folio 1449, reads thus: “The testimony was here closed, and the cause was summed up to the jury by the counsel for the defendant, and then by the counsel for the plaintiff, who, amongst other things, said: 1 The Herald by and by began to find that it could not live without doing something to attract public attention; and about the days of Ellen Jewett, it came out as one of the most infamous sheets that ever existed since man was allowed by the Almighty to handle a pen.’

“ The counsel for the defendant objected, as no evidence had been given in relation to this matter.

“ The Court. He is drawing upon his imagination.

“Plaintiff’s counsel. My learned Mend does not discriminate as to what we are at liberty to take notice of. I should like to know if we are bound to prove everything that we talk about ? Then I should be in danger of saying that it is daylight now. I am speaking of the public history of the time, as I would of the Mexican war, or the reign of Victoria; and if it became necessary to talk about it, it would be perfectly ridiculous to prove the reign of James the first. It is a thing received by all mankind, and that portion which comes within range of the fact, I have a right to talk about. I suppose the gentleman knows that I have a right to talk about Bennett still publishing the Herald, without having proved it, or evidence of other papers, such as the Courier and Enquirer or the Evening Post. Now, Bennett comes up; he has got along with his paper; I do not pretend, and I do not ask you to notice a single fact in relation to that paper, otherwise than as a part of the general history of the country; and so far as I know, the Court will agree with me so far as this, that that which constitutes a part of the public history of the country is what you are at liberty to take notice of.

“ The counsel for the defendant. The learned counsel claims as matter of law, that he has a right to refer to articles in the Herald as part of the history of the country. I desire the Court to say that it is not so.

“ The Court. I will say to the jury whatever is proper to be said at the end of the matter.

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“ The counsel for the defendant. Ánd I except to the refusal of the Court, now to stop the counsel.”

The concluding paragraph of the charge reads thus: “ Taking all these things into view, if you find for the plaintiff in this matter, you will assess these damages, taking constantly into view the application of this principle, and leaving out of view anything growing out of what has been said as to the character of his newspaper, about which there is no evidence before us any more than that the paper forms the libel, and divesting yourself of all feeling of that kind, then say in the exercise of a sound discretion what damages ought to be assessed.”

We have no doubt it was the right of the defendant to require .that the plaintiff’s counsel should be compelled to abstain from addressing to the jury such remarks as the case states he had made. And if the case had disclosed affirmatively that the Court refused to arrest that course of remark, and that the plaintiff’s counsel continued to pursue it after objection made, and exception taken to the refusal of the Court to interfere, we should feel it our duty to grant a new trial for that cause.

The merits of a cause can only be rightly determined by a fair and unprejudiced consideration'of the evidence, uninfluenced by any extraneous considerations calculated to excite the passions or warp the judgment.

As it is a rule of pleading, that the issue should be on a material, point, so it is an essential rule of evidence that the proof should be material and relevant to the issue.

‘ It is equally indispensable to the orderly course of judicial proceedings, and an impartial administration of the laws, that counsel on either side should not be allowed to lose sight of the evidence and the issues, and indulge in denunciations of a party, based on the assumption of facts not proved, and which therefore should not be permitted to disturb that calm deliberation which it is the duty of jurors to bestow, and which the parties have a right to expect and demand.

In Willis v. Forrest ( 2 Duer, 310 ), the judge at the trial refused to permit the defendant’s counsel, in opening his defense to the jury, to state the matters set up in the answer as a defense to the action, and compelled him to desist from stating them, and also refused to allow him to read the answer with a view to

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inform the jury what issues were formed by the pleadings, holding that such matters could not be proved, as they would neither constitute a defense, nor were admissible in mitigation of damages. An exception was taken to each refusal, although the case as reported does not distinctly show that all the proceedings here stated occurred. The judgment in that case has been affirmed by the Court of Appeals.

The counsel of the defendant in this action excepted to the refusal of the Court to then stop the counsel of the plaintiff. It does not appear that the plaintiff’s counsel subsequently made any remarks, in which he should not have been permitted to indulge. The Court instructed the jury that they should lay out of view anything that had “been said as to the character of defendant’s newspaper, about which there is no evidence, any more than that the paper forms the libel, and to divest themselves of all feelings of that kind, and then say in the exercise of a sound discretion what damages should be assessed.”

It appears affirmatively, therefore, that the jury were instructed that these obnoxious statements should be disregarded, and the defendant must show, when he reposes on an exception, enough to make it distinctly appear that improper allegations were made after he objected to the plaintiff’s counsel being permitted to indulge in remarks of the character to which such objection referred.

A bill of exceptions, in which the testimony is given by question and answer, often shows a question put, an objection to it, that the objection was overruled, and that the decision was excepted to.

Whether the question was or was not answered does not otherwise appear than that no answer to the question is contained in the case, and it does not affirm that the question was answered.

In such a case I do not think a new trial should be granted, although it was error to allow the question to be answered, unless the case shows that it was in fact answered.

{Points XVIII, XIX, XX.) The twenty-fourth request to charge was in substance that the plaintiff does not complain “of any attack upon his private character, or of any publication which relates to him in any other character or capacity than his

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situation as a manager of the Italian Opera Company, and his qualities and acts as such manager.”

The twenty-fifth was that as such conductor and manager, and while so engaged, “the personal qualities of the plaintiff for that station, his public appearances before his audiences assembled to witness them, and his treatment of, and his official relations to his artists, were all lawful subjects of comments and criticisms ; every individual has a right to form and express, by speech or writing, his opinions in relation to them.”

The twenty-sixth was “ that if the jury shall believe that the remarks made in the Herald, which are complained of, were published in an honest belief of their truth, and for the Iona fide purpose of commenting on the conduct and qualities of the plaintiff as such manager of the opera, their publication by the defendant is excused in the law, whether they be founded in truth, in point of fact, or be just in point of commentary or not; every individual has a right to form and express, by speech or writing, his opinions in relation to them.”

The Court charged, among other things, “that all the parts of these libels which reflect on Mr. Fry’s want of judgment and skill, either in the selection of operas, or the choice of incompetent performers, everything of that kind is open to criticism, and Mr. Bennett is not responsible, if these opinions be not correct; but all those parts of the libels which charge Mr. Fry with unjust, tyrannical and oppressive conduct in reference to his dealings with his artists, do not come within the rule.” For the latter “he is responsible, unless he has succeeded in satisfying you that they are substantially true.” “ The law does not require that every minute particular of the statement should be literally proved to be true; the truth of the libel must be substantially proved; no material part of any kind is to be left unproved. The justification must be as broad as the libel; you will apply that doctrine to this case too. A legal justification amounts to a complete defense, and if the jury find that made out here, it is their duty to find for the defendant.”

This part of the charge covers the matters of the three requests to charge, last referred to. It instructed the jury that such parts of the articles as charged the plaintiff “ with unjust, tyrannical and oppressive conduct in reference to his dealings with his

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artists,” the defendant must prove to be true, or, as to these, the plaintiff would be entitled to recover.

The Judge also charged that “in any statements of matters of fact,” a “party is responsible for the truth of what he states, but is not responsible for his opinion and judgment.” “ The critic may have an honest opinion of a book, which is unfavorable, and may not be accurate, but he is not responsible for that opinion. Not so with respect to matters of fact. If the critic of a book states a fact contrary to the truth, he is responsible, not for the criticisms which he makes, but for the false basis he has assumed.”

We think the jury must have understood that of any opinion or judgment expressed by the defendant upon any facts they should find established by the evidence, the defendant was not liable, however erroneous the opinion. And they were, in terms, instructed, that for all the parts of the libels which reflected on the plaintiff’s want of judgment and skill, either in the selection of operas or the choice of incompetent performers, and everything of that kind, Mr. Bennett was not responsible, even if his opinions were not correct. That these matters were all open to criticism: the only parts of the libels specified as not being of that character, were those which imputed to the plaintiff “ unjust, tyrannical, and oppressive conduct, in reference to his dealings with his artists.” And their attention, at the commencement of the charge was called to the fact that the libels might be reduced to two classes, those which contained matter which related to the plaintiff’s management of the opera generally, and those which charge him with harsh and unjustifiable conduct in relation to his employees.

The extent to which the defendant was protected, under the charge as given, in the expression of his judgment and opinions, was as great as the law in relation to that subject entitled him.

The parts of the libel, which imputed to the plaintiff the unjust, tyrannical, and oppressive conduct spoken of, could only be justified by proof of their truth. The defendant’s belief of their truth is not a defense to an action for their publication. This Court, when this action was before it, at General Term, on demurrers to the answers, speaking of those portions of the libels, remarked that “ the libels, which are the subjects of com*

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plaint, do not consist in deductions and inferences from acknowledged facts, but in the assertion of facts, and the imputations of designs and motives, which, unless the defendant, under corrected pleadings, shall prove to be true, he cannot be justified, or .excused for publishing.” (Fry v. Bennett, 5 Sand. S. C. R., 73, 74.)

The charge as given, was in this view correct, and covered the matter of these three requests. (Cooper v. Stone, 24 Wend., 434 .)

{Point XXI.) The Judge did charge, in conformity to the 27th request, that if the matters of fact contained in the several articles complained of, were substantially true, the defendant was entitled to a verdict. The twenty-first point, therefore, assumes that the Judge refused to charge what the case shows he did charge.

Points XXII, XXIII, XXXIII, XXXIV, XXXV, XXXVI, XXXVIII and XL^ relate to the rule of damages, and may be considered together.

The true rule is that, if the defendant fails to justify, the plaintiff is entitled to recover, at all events, his actual damages. He has a right to these, although the defendant, at the time of publishing the libels, believed the facts alleged, to be true. The actual damages are to be determined by the jury, in the exercise of a sound discretion, upon a careful consideration of the offense or misconduct imputed to the plaintiff, the circumstances of the publication, the extent of its circulation, and the natural and necessary consequences of such a publication, ’ according to the results of human observation and experience. There is no such rule as that a plaintiff can recover no more than the testimony of witnesses, speaking to the extent of actual damages, enables a jury to say by arithmetical computation, that" the plaintiff has lost. Evidence of that character is not attempted. The Judge said he had “ always held the rule in such cases to be that the jury could look at the whole character of the transactions, and that they could take into consideration all the proof before them of any malicious and actual intent to injure the plaintiff. General malice against the plaintiff may not be proved, but actual malice in making the publications complained of may be proved.”

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“If a man by mistake publish a libel, the law would fix malice upon it only so far as to make him responsible, but it would be a different thing if, instead of publishing it by mistake, he did so with a view to injure the plaintiff.”

If the “ defendant stands before us as a man who deliberately undertook to do an injury, and if'he fail to prove his allegations to be true, h,e cannot escape with nominal damages. The whole question of damages is entirely within your sound discretion. If you find for the plaintiff you will assess such damages as the occasion requires.”

We think the Judge did charge the jury in such a manner that they must have understood it to be stated as a rule to guide them, that if the defendant published the articles believing the statements made to be true, or under a mistake as to their truth, that such fact was to be considered in fixing the amount of damages. That is the substance of the proposition asked by the 28th request. We have already expressed the opinion that actual malice, in making the publications in question, was a matter proper to be proved. The defendant was not entitled to the instruction asked in his 29th request. (Point XXIII.)

The part of the charge forming the basis of the 74th exception (Point XXXIII) must have been understood to be an instruction to find a verdict in the aspect of the case as then presented, for what they should find to be the actual damages, ascertaining them by a fair consideration of the elements of damage furnished by the character of the libels and the business of the plaintiff.

The instruction reached by the 75th exception (Point XXXIV) presented an additional element to be considered, if they should find that the libels were published with an actual intent to injure the plaintiff.

The 76th, 77th and 79th exceptions, if the views we have stated are correct, are not well taken. See points XXXV, XXXVI and XXXVIII of the appellant.

The 24th and 25th points have been already considered.

The 26th, 27th, 28th, 29th, 80th, 81st and 32d points, covering the 67th, 68th, 69th, 70th, 71st, 72dand 73d exceptions, are substantially disposed of by the views stated in considering the 18th, 19th and 20th points.

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The defendant contended at the trial that all of the publications and the whole matter thereof were privileged. And he asked the court to charge the jury that Fry’s “ treatment of his artists ” was a lawful subject of comment, and if the jury believe the remarks were published in an honest belief of their truth, the publication is excused in law, whether the statements were true or not. The exceptions covered by the points now under consideration, were taken to portions of the charge relating to this branch of the case, and the position taken by the defendant in respect to it.

Ho point was made that the rules as stated by the Judge did not discriminate with sufficient precision and distinctness between what was privileged and what was not, to protect the defendant from misapprehension by the jury. The only part of the matter which the Judge suggested was not privileged, provided it was published in good faith, was that which imputed to the plaintiff “.oppressive and unjustifiable conduct in dealing with his employees,” or as stated in another part of the charge, “unjust, tyrannical and oppressive conduct in reference to his dealing with his artists,” or “harsh and unjustifiable conduct in relation to various individuals whom he had employed, especially the female portion of them.”

We think this part of the case was presented to the jury, as favorably as the defendant had a right to ask.

Points XXXVII, XXXIX and XLI cover exceptions, two of which are in these words, viz.:

“ The counsel for the defendant, also in due time excepted to so much of said charge as represented to the jury the testimony of Strakosch, as authorizing them to find that either of the publications alleged to be libelous was made by the defendant with an actual malicious intent to injure the plaintiff.” (78th exception.)

“ The counsel for the defendant also excepted to so much of the charge as related to Strakosch’s testimony, and the effect of it.” (82d exception.)

With reference to the first of these two exceptions, it is to be observed that no objection was taken to the submission of the question what Mr. Bennett did in fact say. We do not discover that the charge is open to the objection that the Judge expressed any opinion of his own to the jury, as to the effect of his evidence.

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He told the jury the testimony of this witness must be scrutinized with caution, and pointed out various objections to their reaching the conclusion that the defendant said, “ I will finish Fry,” or “this will finish Fry,” and left it to them to find as a matter of fact what he did say, and his intent, as the facts which they should find proved would establish it. We do not think there is anything in the comments made upon the testimony of that witness, which will support an exception, in the form of either of the two above stated, or which will justify us in holding that the part of the charge covered by the 89th point was erroneous.

The charge does not amount to an unqualified instruction that his testimony would justify them in finding actual malice. The terms of the charge imply that the counsel of the parties did not agree, as to his statements of what Bennett did say. In that state of things, the Chief Justice presented to the jury what each party claimed his testimony to have been, and the inferences claimed to result from each version of his testimony, and also stated what the testimony was, according to the notes of it which he had taken. He left it to the jury to act upon their recollection of what Strakosch had said, and as they should find the words spoken to be, “this will finish,” or “I will finish,” &c.; or it is “finished,” to determine the question of actual malice in making the publication in question.

As the Judge was not so clear and positive in his recollection of the words of the witness that he could state, unhesitatingly, that the witness finally concluded the word. “ finished ” was the one used, he could not properly do otherwise than leave the jury to act upon their recollection, affected as it might be by a statement of what his notes disclosed in respect to that matter.

The case being before us on an appeal from the judgment only, and not from the order denying a motion for a new trial, we can only look at the exceptions taken.

These not entitling the defendant to a new trial, the judgment must be affirmed with costs.^[1]

* After the argument of the foregoing appeal, and while the cause was under consideration, the defendant moved (in April, 1858) to amend his notice of appeal so as to make it an from the order his motion for a new *250 trial, as well as an appeal from the judgment. The motion was denied, and the order denying it was affirmed by the Court, on appeal to the General Term. (16 How. Pr. R., 385, 401; see 2 Bosw., 684 .) The defendant served, on the 25th of May, 1858, a notice of appeal from the order denying the motion for a new trial, on the ground that no such service of the order had been made as was required to bar his right to appeal from it. The plaintiff, in June, 1858, made a motion, before the General Term, for an order dismissing such appeal, which motion was denied. (16 How. Pr. R., 402, 406; see 2 Bosw., 684 .) The counsel not agreeing to submit such appeal, on the argument made on the appeal from the judgment, to the Judges who heard that appeal, the appeal from the judgment was decided on the 3d of July, 1858. The appeal from the order denying the motion for a new trial was argued at the October General Term, 1858, before Snossotr, Woodruff and Pierrepont, J. J. On the 11th of December, 1858, while the appeal was under consideration, an order was made allowing the case to be amended so as to show what remarks were made by plaintiff’s counsel "after the exception taken to the Court’s refusal to stop such counsel, and striking the sixth libel from the record. After the case had been thus amended, and on the 18th of June, 1859, the order denying the motion for a new trial was affirmed.