Orvis v. Dana.

clearly refers to a demand for affirmative relief, and is used in the same sense as the word "demand." It means "claim or demand," and could never be applied to a mere defense.

Section 158 of the Code having provided in what cases a bill of particulars can be ordered, it follows, as a matter of course, that the court has no power to make such an order in a case not embraced within the provisions of that section. In the case of Tilton v. Beecher, a claim for a heavy amount of damages was made by the plaintiff against the defendant, upon the ground that the defendant had had criminal intercourse with plaintiff's wife, and this claim brought the case clearly within the provisions of the Code.

The answer in this case sets up merely a defense, and makes no claim whatever as against the plaintiff, and therefore by the Code no power is conferred upon the court to order a bill of particulars to be furnished by the defendant.

The plaintiffs upon this motion have cited various authorities to show that the justification of a libel must always be as broad as the charge, and of the very charge attempted to be justified, and also to show with what particularity a justification must be plead, but all these authorities refer simply to what it is necessary that an answer should contain in order to make a good plea of justification, or to what it is necessary for the defendant to prove to sustain such plea, and have no application to the question now under consideration.

Having thus seen that the case of Tilton v. Beecher does not decide that the defendant in every case can be compelled to furnish a bill of particulars, and that such was not the practice before the Code, and that section 158 of the Code does not authorize the court to order the defendant to furnish a bill of particulars in an action for libel, it would appear that this motion should be denied.

Orvis v. Dana.

But the Hon. J. F. DALY of this court, in a case brought by this plaintiff against the editors of The New York Times for damages for an alleged libel, having held that the court had power to grant a bill of particulars in a case like the present, although of a different opinion, I am constrained to follow his decision until reversed by the general term.

I shall, therefore, order that the defendants furnish a bill of particulars, showing who the persons were who suspected plaintiff's honesty, and instituted inquiries and learned that his record was not good; in what newspapers at Toronto the plaintiff advertised for clerks, the names of the clerks he engaged, and of whom he got rid; the nature of the different kinds of business transacted by the plaintiff in Chicago partaking of the nature of swindles; from whom he received consignments while in Center street, and to whom he failed to account. Also the names of the persons swindled by the plaintiff by the means of notes indorsed by Read.

Motion therefore granted, order to be settled on notice.

From the order in each case defendants respectively appealed. From so much of the orders as denied parts of the applications, plaintiff also appealed. The two appeals were argued together.

Willard Bartlett, counsel and attorney, for defendant in the case against the Sun.-I. All existing powers of the court as to bills of particulars in personal actions are derived from the Code. Before the Code, our only statute as to bills of particulars was 2 R. S. 352, which (continued in force by Code, § 455) relates only to real property actions. Before the Code, the common law rules were adopted with all the force of statutory enactment (See Const. Art. I. § 17). The Code was intended to supersede these (Code of 1848, §

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Orvis v. Dana.

135; Code of 1849, § 158). The revision of statute and common law in the last cited section, abrogates the previous rules superseded by it (Bartlet v. King, 12 Mass. 545; U. S. v. Tynen, 11 Wall. 92, and cases cited; Smith's Stat. Constr. 904; Pomeroy's Sedgw. on Stat. Constr. 365, n.; Commonwealth v. Cooley, 10 Pick. 37; Commonwealth v. Marshall, 11 Id. 350; Nichols v. Squire, 5 Id. 168). The express restoration of a certain power by the Code of 1849 and 1851, was necessary, because the common law power (Grah. Pr. 2d ed. 518) had been taken away by the Code of 1848. Before the amendment of 1851, it was not the practice to order particulars (Mason v. Ring, 10 Bosw. 598).

II. The Code limits the power to particulars of the "claim" of the party.

III. A justification of an alleged libel is not a claim (1 Bouvier L. Dic. 233; Plowd. Com. 359; Jacob's L. Dic. tit. "Claim"; Coke Lit. § 420; Burrill's L. Dic.; Jackson v. Losee, 4 Sandf. Ch. 381; Bell's Dic.; Lawrence v. Miller, 2 N. Y. 254; Pomeroy on Rem. 757).

IV. At common law, our courts never had or attempted to use this power in libel, but only (against defendants) in cases of set-off (Grah. Pr. 2d ed. 519; Burrill's Pr. 180, 433; People v. Munroe C. P., 4 Wend. 200; Brewster v. Sackett, 1 Cow. 572). The cases cited in Tilton v. Beecher do not conflict, because they were all other classes of actions or suits, and sought particulars of plaintiff's charge, not of the defense. The only apparent exception (Commonwealth v. Snelling, 15 Pick. 321) amounted only to an order for a special plea.

V. The justification is sufficient, but if not, cannot be questioned here.

VI. The application is unprecedented, and, even if within the power of the court, should be denied.

Orvis v. Dana.

H. C. Gardiner (John Cummins, attorney), for plaintiff in both cases :-As to the question of power, -relied on Tilton v. Beecher, and cases there cited.

As to the right of plaintiff to require details of the justification, cited: Stephen on Pleading, 311; Boyce v. Brown, 7 Barb. 80; Winter v. Baker, 50 Id. 432; Bunge v. Koop, 48 N. Y. 225; 1 Chitty's Pleading, 531; Id. 5th Ed. 532; Id. 5th Ed. 533, 534; Wachter v. Quenzer, 29 N. Y. 552; Bissell v. Cornell, 24 Wend. 354; Stilwell v. Barter, 19 Id. 487; Fidler v. Delavan, 20 Id. 57; Cooper v. Barber, 24 Id. 105; Fero v. Ruscoe, 4 N. Y. 165; Stiles v. Comstock, 9 How. Pr. 448; Fry v. Bennett, 5 Sandf. 54; Sayles v. Wooden, 6 How. Pr. 84; Anibal v. Hunter, 6 Id. 255; Billings v. Waller, 28 Id. 97; 1 Hilliard on Torts, 4th Ed. 401, § 37; Gage v. Robinson, 12 Ohio, 250; Broom's Maxims, 7th Ed. 191 and 192; Skinner v. Powers, 1 Wend. 451; McKinley v. Rob, 20 Johns. 351; Townshend on Libel, 2 Ed. 554, § 357; Kerr v. Force, 3 Cranch C. Ct. 8; Ames v. Hazard, 8 R. I. 143; 1871, De Armond v. Armstrong, 37 Ind. 35; Tilson v. Clark, 45 Barb. 181; Stephen on Pleading, 388, Rule IV.; J'Anson v. Stuart, 2 Smith's Leading Cases, Hare and Wallace's Notes, 71 and 73, and 74 and 75; Henson v. Veatch, 1 Blackf. 370; Douge v. Pearce, 13 Ala. 128; Taylor v. Robinson, 29 Me. 323; Nelson v. Musgrave, 10 Mo. 648; Samuel v. Bond, Littell's Sel. Cas. 158; Nall v. Hill, Peck, 325; Andrews v. Vanduzer, 11 Johns. 38; Sterling . Sherwood, 20 Id. 204; Swann v. Rary, 3 Blackf. 298; Kent v. David, Id. 301; Eastland v. Caldwell, 2 Bibb, 21; Matthews v. Davis, 4 Id. 173; Stow . Converse, 4 Conn. 17; Starr v. Harrington, 1 Smith, 360; Shepard v. Merrill, 13 Johns. 475; Sharpe v. Stephenson, 12 Ired. 348; Torrey v. Field, 10 Vt. 353; 1 American Lead. Cas. 3 Ed. 178; Hopkins v. Smith, 3 Barb. 599; Steinman v. McWilliams, 6 Barr, 170-177; Parke v. Blackiston, 3 Harring. 373-378;

Orvis v. Dana.

McGlemery v. Keller, 3 Blackf. 488; Offut v. Earlywine, 4 Id. 460; Byrket v. Monohon, 7 Id. 84; Lanter v. McEwen, 8 Id. 495, 496; Wonderly v. Nokes, Id. 589; Landis v. Shanklin, 1 Carter, 92; Newbit v. Statuck, 35 Me. 315; Steele v. Phillips, 10 Humph. 461; Gants v. Vinard, 1 Smith, 287, and 1 Carter, 476; Crandall v. Dawson, 1 Gilm. 556; Coulter v. Stuart, 2 Yerger, 225; Kirtley v. Deck, 3 Hen. & M. 388; Orme v. Lodge, 3 Harr. & J. 83; Gilman v. Lowell, 8 Wend. 573. As to the merits of the application,-discussed the facts claimed to constitute the cause of action, and insisted that they were such as to entitle the plaintiff to full particulars of the facts and circumstances by which defendants expected to prove justification.

Austin Abbott (Howard Payson Wilds, attorney), for the defendants in the action against The Times.I. The Code gives no power to order particulars in such a case. The opinion expressed in Tilton v. Beecher, that the defendants' remedy where plaintiff's claim is not pleaded with particularity, is by asking for particulars, not by motion to make more definite and certain, can not be extended to a plaintiff's objection to supposed indefiniteness in a justification, without overruling the repeated decisions of the same court, that in case of answers setting up matter in avoidance, the remedy is by motion under section 160 of the Code (Wall v. Buffalo Water Works Co., 18 N. Y. 119; Farmers', &c. Bank v. Sherman, 33 Id. 69; Kerr v. Hays, 35 Id. 331. S. P., Martin v. Kanouse, 2 Abb. Pr. 327; S. C., 11 How. Pr. 567; Wiggins v. Gans, 3 Sandf. 738; Watt v. Watt, 2 Robt. 685). And the doctrine that a justification objected to as deficient in lacking some details of time, place and circumstance, is to be cured by such motion, is adopted by all the cases (Maretzek v. Cauldwell, 19 Abb. Pr. 35; Shoe and Leather Bank v. Thompson, 18 Id. 413; Billings v. Waller, 28 How. Pr. 97).