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Hunt agt. Meacham.

SUPREME COURT.

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Hunt agt. MEACHAM, IMPLEADED, &c. Where the defence is not founded upon a written instrument for the payment

of money only, in the possession of the attorney, he must have personal knowledge of all the material allegations of the answer to enable him to verify.

Clinton Special Term, February 1852. This was a motion to set aside or strike out an answer for a defective verification, which was as follows:

“ Clinton County, ss: A, B, attorney for Joel E. Meacham, being duly sworn says, that the said defendants, Joel E. Meacham and Henry F. Royce, are both absent from the state of New York, and this defendant is unable to procure the verification of either of the said defendants to this plea or answer. This deponent further says that the facts set forth in the foregoing answer he believes to be true; that the deponent has no personal knowledge of the same other than that derived from the statements made by the said Joel E. Meacham, part of which was made upon oath in the presence of this deponent, and part in an interview with the said Meacham and while deponent was acting as counsel for said Meacham, and which statement deponent believes to be true. (Signed)

AB
Sworn, &c.”
No written instrument was the foundation of the defence.

G. M. BECKWITH, for the Motion.

P. G. ELLSWORTH, Contra. HAND, Justice. If the defence be not founded upon a written instrument for the payment of money only, in the possession of the attorney, he must have personal knowledge of all the material allegations of the answer, to enable him to verify (Code, g 157). In this case, no such instrument was the foundation of the defence, nor did the attorney possess the requisite knowledge. It is not necessary now to decide what knowledge the attorney must have when he is possessed of such an instrument.

The motion must be granted, but with leave to amend.
Ordered accordingly.

Buddington agt. Davis and others,

SUPREME COURT.

BUDDINGTON agt. DAVIS AND OTHERS. The plaintif charges the defendants with maliciously publishing a libel. The

defendants ist, deny the charge. 22. If the same was published by them, it

was true. 3d. If the same was published by them it was privileged. To the 2d and 3d grounds of defence, the plaintiff demurs. Held, that the 2d

defence can not be sustained, because it is not a statement of any new matter constituting a defence, nor does it confess and avoid the charge (see Code,

$ 149, sub. 2). It is nothing more nor less than a conditional defence. Also keld, that the 3d ground of defence is defective, because its allegations are

not only conditional, but if properly averred would not per se constitute a defeace. For a privileged communication may be libelous as well as any other. It depends upon the proof of malice. Where it is not privileged

malice is presumed. (This agrees with Graham agt. Stone, ante 15; Lewis agt. Kendall, ante 59;

Sayles agt. Wooden, ante 84; Anibal agt. Hunter, ante 255; Purdy agt. Carpenter, ante 361; Brown agt. Orvis, ante 376.)

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Ulster Special Term, May 1851. Demurrer to defendants' answer. The action was brought for a libel. The publication containing the alleged libel, consisted of a communication signed by the defendants, and addressed to the Postmaster General, asking for the removal of William Grant from the office of postmaster at Rosendale, and alleging, as the ground of such application, that the business of the office had been entrusted to the plaintiff, as deputy and that he was a man of intemperate habits, &c. The defendants, in their answer, first deny all the material allegations in the complaint. They then say that if they ever signed or published the alleged libel, “ the same was in each and every allegation, and in each and every part thereof correct and true. They then say, as a third ground of defence, that if the same was ever subscribed and published by them, it was a petition addressed to the Postmaster General for the removal of Grant on account of the acts, conduct and character of the plaintiff, and it was therefore a privileged communication. To the second and third defences the plaintiff demurred, stating grounds of demurrer, which are sufficiently noticed in the opinion below.

E. Cooke, for Plaintiff.
T. R. WESTBROOK, for Defendants.

Buddington agt. Davis and others.

Harris, Justice.—The principles of pleading, whatever the system, are always the same. Its office is, to present the cause of action on one side, and a defence on the other. This is not less true under our present system, than it was under the former. Names are changed-useless forms and technical rules are abolished, but the principles remain unchanged. What now is a good answer, would before have constituted a good plea in bar. Each, the answer as well as the plea in bar, must present matter which furnishes a conclusive answer to the cause of action alleged in the complaint or declaration. A plea in bar must either deny the facts stated in the declaration, or it must confess and avoid them. So, under the present practice, the answer must either controvert some allegation material to the cause of action, or state some new matter, which, admitting the allegations of the complaint to be true, will constitute a defence. In other words, it must traverse or deny the matter of the complaint, or it must confess and avoid it. In the latter class of pleadings, whether under the Code, or at common law, confession is an element as essential as avoidance. There must be an express or implied admission that the allegations constituting the cause of action are true, with a statement of matter which destroys their effect. “The plea,” says Chitty (1 Chitty's Pl. 527), “must give color to the plaintiff, that is, it must give him credit for having an apparent or prima facie right of action, independently of the matter disclosed in the plea to destroy it. So must the answer. The defendant may now, as before, set forth as many defences as he may have.

have. But each defence must be separately stated. He may, in a case like this, deny any or all the allegations of the complaint. He may then by a separate statement in the same answer, allege the truth of the statements contained in the libelous publication. And then again, if such an allegation will constitute a defence, he may state as a third defence, that the publication was privileged; but he can not in the same defence deny the allegations of the complaint, and set up new matter to avoid their effect. When the defence consists in the statement of new matter it must, at least, admit the apparent truth of the allegations it would answer.

Let us apply these principles to the case in hand. The de

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Buddington agt. Davis and others. fendants say, in the first place, that they are not guilty as is charged in the complaint. This, of course, is a good defence; it puts the plaintiff upon the proof of his cause of action. Then they say, as a second defence, “if we have made the alleged publication, we have published no more than the truth.” This is not a defence; it is not “a statement of any new matter constituting a defence.” The defendants merely say, “if it shall be proved that we have published the alleged libel, then we say that we have published nothing more than the truth, but if that shall not be proved, then we say no such thing.” Such a de bene esse defence can not be sustained. The defendants must in this branch of their defence admit, at least impliedly, "the apparent truth” of the complaint, and then state, in the manner prescribed in the second subdivision of the 149th section of the Code, such facts as, if true, will constitute a defence. This they have not done, and this part of the answer must, therefore, be held to be insufficient.

The third defence is still more defective. Its allegations are not only made conditionally, but the facts thus alleged, if they had been properly averred would not per se have constituted a defence. These facts show, perhaps, that the communication was privileged. But a privileged cornmunication may be libelous as well as any other. The only difference between a privileged communication containing libelous matter, and one not privileged, consists in the proof necessary to sustain the action. When the communication is not privileged, malice need not be proved. It will be inferred from the slanderous character of the imputations. But when the communication is privileged, good faith will be presumed, and the plaintiff, before he can recover, must show not only the publication, but that the defendant in making it was governed by bad motives; that he embraced the occasion when he might make a privileged communication, to injure the plaintiff. In this case, the plaintiff charges the defendants with having made the publication “maliciously, and with intent to injure and defame the plaintiff.” If this allegation should be established, then it is no defence to show that the communication was privileged. All that the defendants could do to avail themselves of this ground of defence was to put in issue the

Perry agt. Livingston and others.

allegation of malice in the complaint, and then, if upon the trial it should appear that the communication was privileged, the plaintiff before he would be entitled to a verdict, would be obliged to satisfy the jury that the defendants in making the communi. cation, acted in bad faith and with malicious motives. The plaintiff is entitled to judgment upon the demurrer, but the defendants are to be at liberty to amend in twenty days upon payment of costs.

SUPREME COURT.

PERRY agt. LIVINGSTON AND OTHERS.

COSTS.

In an action brought upon an alleged partnership contract to recover against

three defendants, where the referee found that there was no partnership be

tween the defendants, the following questions of cost were decided : 1. Where two of the defendants appeared by an attorney, and the other de.

fendant by a separate attorney who was a clerk in the office of the first attor

ney, but one bill of costs is taxable; 2. Where a cause is referred at the circuit on the ground of its being a refer

able cause, and before it is reached in its order, the charge of ten dollars as

a circuit fee is not allowable ; 3. The charge "after notice of trial,” $7, is taxable but once, although the

cause is more than once noticed at the circuit or upon a reference. It is a

charge for all proceedings before actual trial; 4. Where the plaintiff is an assignee of the demand sued upon, and gives no

tice that he will examine the assignor as a witness under $ 399 of the Code, and where the demand sued upon is a joint one against the defendants, held, that the defendant could not charge for the travel and attendance of his codefendants as witnesses, although they were subpænaed to attend as witnesses, did attend, and were sworn and testified, under the authority of g 399.

At Chambers, January 1852. This was an action upon contract, alleged to have been made jointly by the defendants as partners. The partnership was denied, and the referee to whom the action was referred, found that there was no partnership and made a general report for the defendants. Upon the adjustment of the costs, several questions arose which were decided by the clerk adversely to the plaintiff, who moves for a readjustment.

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