Page images

§ 140. In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute, by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.,

141. In an action for libel or slander, it shall not be necessary to state in the complaint, any extrinsic facts, for the purpose of showing the application to the plaintiff, of the defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally, that the same was published or spoken concerning the plaintiff, and if such allegation be controverted, the plaintiff shall be bound to establish, on the trial, that it was so published or spoken.

§ 142. In the actions mentioned in the last section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, sufficient in law to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances.

The last two sections are designed to simplify the rules of pleading in libel and slander, in particulars in which the present rules are full of inconvenience and injustice.

Where the defamatory matter does not refer directly to the plaintiff, but is connected with him by extrinsic facts, these facts must be set forth by way of preface or inducement; and so technical has this rule become, that it is frequently very difficult in pleading to show this connection to the satislaction of the court. The real question is, was the plaintiff intended by the defamatory charge? This, it seems to us, should be matter of evidence, and not of pleading. The rule, as laid down in a leading case,

in our courts on the subject, (Miller v. Maxwell, 16 Wend. 9,) requires that the extrinsic facis should be so stated as that when read in connection with the defamatory charge, and with the innuendous connecting it with the introductory matter, the conclusion will be inevitable, that the plaintiff is the person intended to be slandered. The difficulty of doing so is illustrated in the case just cited. There the plaintiff, in an action for libel, averred, by way of innuendo, that the defendant, in attributing the authorship of a printed article to a celebrated surgeon of whiskey memory, or to a noted steam doctor, meant the plaintiff; and it was held, notwithstanding the innuendo, that the declaration was bad, for the want of an averment in the introductory part thereof, that the plaintiff was generally known by these appellations, or that the defendant was in the habit of applying to him these opprobrious epithets. And in a more recent case,(Tyler v. Tillotson, 2 Hill, 507,) where a declaration for a libel alleged that the plaintiff was the editor of a newspaper called the Ogdensburgh Times, and that the defendant published of and concerning him, as editor of the said paper, the following words : “We shall, from time to time, &c., notwithstanding the denial of the rihald convict and recorded libeller who edits the Times, (meaning the plaintiff the editor of the aforesaid newspaper,) called the Ogdensburgh Times,” &c , it was held, that the declaration was bad, as it contained no sufficient avernient showing that the libel referred to, and was intended to designate the plaintiff.

The rule proposed in section 142, is intended to remedy what we suppose to be a most flagrant injustice to the defendant in actions of this nature. By the existing law, if the defendant plead or give notice of truth in justification, he is precluded, not only from giving any evidence in mitigation of damages, but from availing himself for that purpose of any facts shewn under his plea of justification, (though they establish the utmost probable cause for making the charge, and the entire good faith of the defendant in doing so,) if the proof fall short of a strict technical justification. And not only this, but it is the well settled rule, and juries are uniformly so instructed, that the fact of his pleading or giving notice of a

[ocr errors]

justification, is, of itself, evidence of malice, and must be taken into view in enhancing the damages. We can see no reason why in this, more than in any other case, an arbitrary rule should be interposed, by which the defendant should be deprived, not only of the benefit of, but should actually be prejudiced by, a partial defence. Besides, the rule as proposed, seems necessary under our system of pleading, by which the general issue, as now understood, is taken away, and which allows the defendant to plead as many grounds of defence as he may have.

§ 143. The plaintiff may unite several causes of action in the same complaint, where they all arise out of,

1. Contract, express or implied; or,
2. Injuries by force, to person or property; or,
3. Injuries without force to person or property; or,
4. Injuries to character; or,

5. Claims to recover real property; with or without damages, for the withholding thereof; or,

6. Claims to recover personal property, with or without damages, for the withholding thereof; or,

7. Claims against a trustee by virtue of a contract or by operation of law.

But the causes of action, so united, must all belong to one only of these classes, and must equally affect all the parties to the action, and not require different places of trial.

$ 144. Every material allegation of the complaint, not specifically controverted by the answer, as prescribed in section 128; and every material allegation of new matter in the answer, not specifically controverted by the reply, as prescribed in section 131, shall for the

purposes of the action, be taken as true. But the allegation of new matter in a reply, shall not in any respect conclude the defendant, who may on the trial avail himself of any valid objection to its sufficiency, or may countervail it by proofs, either in direct denial or by way of avoidance.



SECTION 145. Material variances, how provided for.

146. Immaterial variances, how provided for.
147. What to be deemed variances.
148. Amendments by the party.
149. Amendments by the court.
150. When real name unknown, fictitious name may be used, and amended

151. No error or defect to be regarded, unless it affect substantial rights.
152. Supplemental complaint, answer and reply.

No person,

To that class of objectors, who assert, that the pleadings, we propose, will sometimes prevent a party, from proving the real state of his case, when it was imperfectly known to him at the commencement of the action, or imperfectly explained to his counsel, we present these sections as an answer. under our system, need be turned out of court, or lose his remedy for variance of any kind. The first three sections provide for variances discovered at the trial; and the rest provide a means of amendment of the most liberal character; as liberal, indeed, as we could devise.

$ 145. No variance between the allegation in a pleading and the proof, shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits. Whenever it shall be alleged, that a party has been so misled, that fact shall be proved to the satisfaction of the court, by affidavit, shewing in what respect he has been misled; and thereupon, the court may order the pleading to be amended, upon such terms as shall be just.

§. 146. Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.

§ 147. Where, however, the allegation of the cause of action or defence to which the proof is directed is untrue, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two sections, but a failure of proof.

§ 148. Any pleading may be amended by the party of course, without costs, and without prejudice to the proceedings already had, at any time before the period for answering it shall expire. In such case a copy of the amended pleading shall be served on the adverse party.

$ 149. The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding, by adding or striking out the name of any party, or a mistake in any other respect, or by inserting other allegations, material to the case, or by conforming the pleading or proceeding to the facts proved, whenever the amendment shall not change substantially the cause of action or defence.

« PreviousContinue »