The New York Herald Newspaper, December 13, 1853, Page 7

THE GREAT OPERATIC CASE. "Presecution of the New York Herald by Signor Fry, late Manager ef the Italian Opera at Astor Pince, “_ SUPREIUK COURT, Before Hou. Judge Oakley, Dro. 12,—At the opening of the Court this morning by Mr. ©. M. Potter, om the part of Mr. Richard Grant White, the musical critic of the Courier and Enquirer, he stated te the Court that, in the course of this cause, testimeny had been given, particularly by @. @. Foster, one of the ‘witnesses for the defexdant, which Mr. White considered as casting an imputation on bia character, and whic he wished to be examined, with a view to contradict it. His Honer the Judge denied tho motion, Mr, Bandford—On the testimony as it now stands, your boner, I beg toremew the motion to dismias the coi plaint, Mr. Jerdan—Wait one moment Mr. Sandferd, the evi: ence is not all in yet. I propose now to read rticle trom the Hurarp, dated Muy 30, 1845, (producing file of ‘Bway in court,) written two or three years before these sc Court—' Mr. Jord what ir. Jordan. aa ett ecg a aa Iwish to we on (bat on, malios oC ccams suctet vindletive yaslion tat we and these publicaiious y . Banford—The articie has no relation to Mr. Fry, Aor to an! that Mr. Fry was ever connected with, that we knew of. Mr. Jordan—I will submit it to the Court. The Court refused to admit the artiv'e to be read. Mr. Jordan.—As the Court rules it out, it is unneces- wary for us to say much about it, but we ask our excep- tion te be taken as a portion of our case. Mr. Sanferé—I mow revew my tion to dismiss the ,pomplaint, on the following groands:— 1, That the fects ahown ia evidence, which are uncon: tradict establish substantially the truth of the arti- eles hed against Mr. Fry. 2. That these publications were of the plaintiff, im his capacity of opera manager, and that his character in that capacity invited criticism, aud was the proper ob- ject of criticiem, and thatany me: ber of the community had a right to state and write his opiaion; and that, if he really believed what he wrote to be true, whether it was true, in point of fact, or not, his remaks and writing are vileged in the law. I, thereiore, reasw the motion to 0 lasalaei be. complaint, in order to take your Henor’s suling w Me. JorianT pose, your Honor, that whether the ‘words aré proved to be true, is a matter exclusively for the jury te decide, I aim aware that the evidence on the Bubject lies scattered aud mixed, as Benedetti described the orchestra and chorus of the opera to have been, bat Tem to show, beyond a pessibility of doubt that there is not » word of truth in those articles, that Bennett knew it when he published them—and also conspiracy and malice. 2 to say that it is the provinoe of the jury to find whether these libelsare true. As to the second point —that he invited criticism, and that, therefore, any one #0 disposed might say any- about him; they might cali him a jackass--they they might call him a vaio, fan- tastical map, and t Saich tee euMRE tee well in Bennett’s vocabulary, which was pro! pretty well ex- hhausted. Agberiiug’to this viswot the care, they might sim with murder as well, and then go into d say that ic was a criticism on th hat is @ criticism ? a is ao ere nor ‘passing our opinion upon s public performanse, ie ahacea Torte eeetner Was purtoraiuncs ry ittem book, or an article, or an Italian opera. Now, if Mr. Bensett had spoken of the opera as a critic; if he had criticized the be — Lent cs any p ticular performance, or the selection \¢ performance: and done it in e fair and ceadid spidt, thatahould maaatt fest to the world that he did it for the purpose of criti- ism. and not of an attack upon the manager, that would have been criticism. Hes he eriticized Foye jor performance? Net s word of that. He has charged that blacklegs and prestitutes were admitted iato the opera house—and that is no part of the thea :rical repre- wentations. If he came within the rale of criticism, then, Ladmit, he would be justified. He hasja right to makea fair and candid criticism upon the proceedings of a court of justke even; he has a right, when your Honor s.d the bench decide the cave. to make and candid criticism ut Ihave mo right to ji 4 ridicule them to ita. i @ right to attack a court of justice as anything Everything may be done that is done preperly. the proceedings of a relizious meeting, ht spirit, and so long as they pre- jut, is there no separatin tothis? No man, even under this b! i i re the boundary overnment, has the right to do whatever he pleases. government in the greatest blessing on earth, press is, perhaps, the next—freedom of person, at i events, is. Now, ui ‘® free goveroment, has a man right to do whatever ke pleases? No, although when they first land om these bores of lom, seem to think fo; but I am appy to see that they ere the most ignorant and el classes of mankind. Bennett is a foreigner, but knows better. Freedom consists in enjoying one’s igbtein a moral, or st least in a legal manner, and the freedom of the press consists in publishing truth, news, nd information upon ull subjects+-—meroantile, mechani- , manufscturing, literary—everything. To publish the ruth and give all useful icformation is the province of a newspeper, but it nut becontined to what ia tru; nd @ man has no moie right to lie about bis neighbor, because he is an editor, and is just as amenableas a private citizen. y that Mr. Bennett has writ he isthe public manage ie most extraoidiuary. Because he |i manager of a thi » has he, therefore, ths tht to accute him of incapacity, to compare him to an pe, to makes brute of hum, acd ridisule him, and #0 te and write of him as to render him a stench in the ostrils of the community. The same dostrine would ply equally to the Leg slature and the judicial bodies the evu ‘Where is there lonor’s refle on the subject will rnish you with better arguments thanIcaa, It is eaid bat if he believed what ho wrvie to be truo, he is not sponsible, That is not so, If I express an opinion of in individual that he has been guilty of sponsible for it as though I had made the charze, I jave no right to @ press an opivion as to the gailt of an pdividual, except as Ihave evilence of its truth. This ctrine is imperishable as the stars, so far au regards juman transactions. Again, sir, if a man publishes what believes to be true, before he publishes what is injuri- ns to the character of another, he must take pains to recente. He is_not to set down idly, and assert just hat pleases. Now, I conceive that if Bennett was the o1 I a@thor and instigator of these publica: lons—as I shall show that ne was-—if he had received here publications, and could show to this jury that, ip fair and candid investigation, there was such evi- in their truth—i¢, upon s fale iavestigation, such ‘an honest wan would enter into, it would be a mitigation of damages, and nothing beyond that. Is responsibie for the truth of what he publisher? Now, the first place, Tdeny that the allegations introduced there libels are proved. Secondly, that although the cles published refer to Mc. Fry in his capacity of nager, the writer is responsible for the truth of them, ird, that it does not come within the head of eriticiam Pronounce # judgment in such a case, without gtviv sons for the jndgment, and that, although hy belie hat be published, it will only serve im mitigation of the mages. ir. Sanford—I do not undertake ® discussion of this tion, because #0 far ax I have an iaterest in this ouse, Tepresenting the defendant, it is that it should be sub- tted to a jury; but there are legal questiona of great My learned nd bas ead that truth would bes perfect justification, t that there was ro tcuth. I contend, however, that testimony given by unimpeached witnesses establishes truth of ail the matters of fect comtained in the alle: ns complained of as libels. We do not, therefore, ler a8 to the sufficiency of proof as to the first proposl D net differ upon nis question of abstract law, to its applicability to the circumstances of this My learned friend nays that candid criticism is the means of » picture, as was » frontispiece presenting « kaizht, meanirg Sir John Carr, leaving Ireland, wita tears falling aa if in regret. He was reprevented ia a most ludicrous manner, holding » handberchief tied up, aad apparently containing all bis wardrobe, aud upon hia bask a huge load of his beoks under which be was bending, ‘The Court—The wt taken by the defeadant’s coun- selis a sound one, but I shall not decide the question here. I shall deny the deten‘ant’s motion, ARGUMENT OF MR. SANDFORD ON THE PART OF THE DEFENCE. Mr, Sandford then rcse and spoke as follows ;— If the Court please, gentlemen of the jury, it is with reat regret I feel myseIfealled upon after the length of Pen this ose bas already occupied, to comsame any more of the time of the court or jury’ in'an exam ot the questions it presents for your would have been gratifying to me tu have left this ease, efter the partial attention which you haye givemit, to r Cetermination; and, without attempting, so fac as arguments of the counsel could go,to leave it fer your unbiassed action and your celiberate epiuion, te decide whether there is rtbing im the cireumstaaces befor you that would entitle the plaintiff, Mr. Fry, to any pacu: piary damages. to present the case at its eoncl $ the inten- y tered upon the trial, to sum’up: and I regre: that the th of ume employed should have deprived the defeaiant of the benefit of his services, sud you of the pleasure and the instruction which you would have received in Masten ing to bim. While be bas large professional experience in all the ordisary branches of law it has been his tasve and inclination te cultivate somewhat more extensively an acquaintance with that class of persons whose ch: acter ig presente’ in this case, and knows more of them than falls to the lot of most of his professional brethren And [have no coubt that you would have listened with leasure to the observations he would hare made upon circumstances this case presents. About two o’clook on Friday, having made his arrangements for leaving on Saturday, it became obvious that he could not perform the duti¢s he had elected to dischasge, end both myself and the defendant are, accordingly, placed in the posi- tion we now occupy. I shall, however, endeavor with calmners, and with an entire accuracy of statement, to present to your consideration the questions which the case gives rise to, and the facte contained in the evidence, and to show you what, in my judgment, should be your wi conclusion. The case, as we before had occasion to remark, so far as the plaintiff is concerned, appears to me to be one of exireme levity. ‘alleges mo damages, complains of ne private injury to bis perscoal character, but comes before the court and jury claiming, afer, in the years 1848 and ’4! e had engaged in difficult and arduous undertakin, that of conducting representations of Italian opera, through the means of artists who are natives of Italy— and after he failed in bis enterprise he comes before the court and jury and asks that Mr. Bennett shail compen- sate him, tm some. degree, for that failure; that a fellow citizen shall, from his own earning®, give to him a portion of his substance; be ought. cer! , to be able to trace a direct and immediate ah ry to the influence of that citizen, before ch » demand upon you; bat, in his complaint, be is silent upon that; he does not pretend totrace it; he does not pretend by his testimony to enable ou to trace one iota of the ipjury that has ever arisen to im from the publications of the defendant; I feel, therefore, warranied in saying, so long as his private character has not been traduced, as the remarks only relate to bis public character and operatians as manager of the opera, and that as he does not pretend to trace ‘0 the con- duct pursued on the par: of thi Revahagee towards him the slightest injury, the case is one of extreme frivo- lousners. But, on the part of tha defendant, the case is laced upon a higher basis The poople of this State ene mater it @ part of their fundamental law that every citizen might unite and speak his sentiments on every subject, being responsible ovly for the trath of whet he wrote; and no new law shall be parsed to abridge the liberty of 9 ‘and the freedom of the press; and the question which this case presents on the part of de- fendant is, whetber he has transgressed thia privilege whioh is guarantee! to every cltizen by the fundamental Jaw. In order to show you that he has mot it will be neces- sary to call \ cur attention to questions to which the case gives rise, ihe first questioa which will be submitted to you is, whether ‘the publications complained of are ibellous—becanse assume that the court will not undertake to assert, from the meaniog and sense conveyed in the langua; o used by the writer, there is Sites or clearly calculated to change the con- dition of the plaintiff for the worse, or to make the jury declare that the mere utterance of it was libellous. The juestion in what sense they were used, be tion of it for the jury. I shall not go over the publications to examine separately whether the articles are libellous or otherwise—that will oome in connection with the examt nation of the question, bow far far they are privileged?’ The Court will charge you that, if the publications be libellous in the sense in which you ar regard them as having bees made, the next question will be whether the matter complained of as libellous was trae, and ifthe matter amounting to a libel is true, has the paintif any right to claim damages? If the facts publitbhed be not true, ani if the inference and opinions which are drawn in the articles from the facta as pudlished, are not just and accurate; vet if you find they were bona fide remarks made by tha writer upon the public cheracter an‘ conduct of the plaictiff in his posl- tion manager of the Italian opera, in his trostment of jatd, in kis connection with that enterprise, and didn’t go beyond—didn’t travel out of his relations with his public business fur the purposes of defamation— whether the remarks were true in point of fa:tor just in point of conclus.on; whether they were in ridicule and ire or in resron anc a guuent, their publication is like privileged. I have already remarked that if you should find them to be libellou:, un‘rue, aad not limited to the publis chara and conduct of the plaintiff as manager of an opera company, then the question would srise—so accu'ately stated by the learned counsel—whether the party makivg the publi cations believed, at the time of their pubdtication, that these matters were true. Our law now permits a defend ant, who believes the trath of the matier publi-hed by him, and who attempta to prove that trata, if he fais to prove it to be true, yet relies upon the apparent truth, to offer that fact in mitigation of damages. Let me illustrate this by a single circumstance in this case. It was reid there was a conspiracy, aud it was reiterated this morning by the sounss) for the plaintilf, who said he would show that there was a con-piracy between the artists of the company, alla‘ing particularly to Bans- detti, Mr, Rossi, and Madame Troffi Benedetti. Now, sup- —what I consider inconctivable a4 a matter of fact— suppore it to be true that that conaplrasy did exist, and in pursuance of it Madame Truffi had feigned illaess, and yet Mr. Bennett, as the publisher of a newspaper in New York, } nowing nothing of it, should publish that the con- duct cf Mc. Fry was not what it should have been un the circumstances, then the law would permit Mr. B nett to rely upon tke apparent truth which was evident to bis mind, and the falsity of which #93 concealed from him. The law permits him to rely upon the apparent truth as @ viadication so far ae to exsuse him from Fayive ay Gamajes beyond which they complain of. "he next question would be—suppos you found that any part of this matter complained of, to be libellous, was not true, was not lunited to the conduct of the plaictiff in his official relation to the public, and suppose it was not be- lieved to be true, uot publishoa in good faith, what dama- gen weuld the plaintif be entitled to regover? Tae plain- fff has not attemp'ed to prove any especial damages, or any direct injury which rt can appreciate or measare by money. 1: istrue, asa loge! proposition, and ao the court will charge you, that where the words ‘ste actionable in themselves, neisher damage or malice are required te be afirmatively proved. The lew affirms both, but the law does not assume any amount of either; it does not asaume that the plaintiff bes been damaged more than one cen nor does it sesume that the defendant has been actus by any degree or amount of malice, anit leaves to the jury “still to ascume the actual extent of inju- ries surtained by plaintiff, and the malice exhibited on the part of the cefeudant. Iu this case the plaintiff cues for injury done to him; the damages which You will give will bo limited to the ibjary you will And he has sustained in his chars cter, as manager of the opers.- The business which he entered upon was either a business that required experience, and previous practical aad per- sonal acquaintance with it, or it did nct. If it did not require say, then, assuredly, the injury which wonld re- sult to the peracn who bad never expended any time or money in preparations for it, would be very slight, If it did require previous knowledge, study, api intercourse with the persons who were to assist in rendering the business guccessful, then it is pe:festly evident that the plaintiff 1s not qvalided, for he never apent any tine prior to engaging in this business, Andif there be any- vilege of every member of the com munity, and it is aa ich the privilege of » man who speaks as of who writes. Now, you make any remerk in mee to the character of the wares of # chant or the evidence of # jury, or even take the msive epi het, whish my learned friend so much de- hts in—' jackaen;”’ it ia the privilege of any gentle. jn who enteriains that opinion, even of a judge, to ex- it, and yet not be amenab’e to the law; I will refer, upport of this, to the ceve of Tobias vs. Harland, 4 ., 640, before Judge Marcy ; Judge Maroy, in de- bring the opinion of the Court, said:—‘‘No instance oan found, I believe, where an action has teen sustained words for misrepresenting the quality of any single Hicle which & person hat for sale, waless special are alleged and proved. To impute ignorance to tt rney or counsellor in a partionlar course, or want ill to a physician in relation to the decease of a par- r patient, ie not actionable, (8 John, R. 64; Cro, . 620,) on the same principle an allegation thats ufacturer had made a particular article bad, cannot ndir. Acontrarys dcctrino would, in my apprehen- . be exovediegly pernicious. It would render a man ble to be ‘called into court to justify an unfavoradl pion he might express of any manafactared arti sh avcther had for tale. It would involve « strange 1d @ man answerable for words im- n article cf merchandise, rate him from responsibility when he chai thbor with a defect, or want of moral virtue, or the st of & moral duty or obligations. A charge of moral deficiencies abi ve referred to is declared to be actionable. (3 Wils. 1 do not find jt even an attempt han teen mace to sustain an ation orda of comparison. To say that the watches manu- fared by the plaintiff are inferior to thore made by other particular manufacturer, can never be held jonable where no special da nages result therefrom, Phout ex bara sing the freedom of judgeent in mattors private concern, and making errors of opinion in re- on to the common and necessary transactions of life uit/ul source of litigation. My learned frend ition is that you may criticise, if you eriticl h msy make an attack, always provided you speak the , and that you can never make a mis itatement of ‘without exposing yourself to an action for libel. who is to judge of the orror of my jaigment? lo can assume to be infallible? .The law does not hme that ita court porsesios infallibility, or that 8 are apy more infallible the court.’ The law Lunderrtand the ruls, that those who think, or pal what they think, may form incorrect concluslor, |, if #0, it ie the theory of the Inw that the conflict of duce the truth. It is not correct to say the writer must be limited to the statement o! truth; law requires ia, that he shall not depart from In the language of Lord Fllenvorough, case from which I ba he shall not pursu quoted, party whom be obverves upon, into his private cha: ard conduct,”’ If he confines hia observation to public conduct, no matter whether the facts which apposes to be correct in point of truth, or if ths in- 4 are unseund, he is alike protested if ho ex- his honest convictions of the moment, In the thing libellous in this case, it will be a grouping of all the obeervations in this one general idea—that when Mr. Fry eugaged in this business, in 1849, he bad not the requisite knowledge, skill, and experience, he was not poseessed of ‘thore personal qualities necersary to ensure success, I beg your attention, in this conection, to the fact tha! he en- gaged these artists in August and September, and com- mened bis mauagerial career in Ootober, 1848, and thet there {a no article found in thy Hearn cf whish 46 ma! any complaint whatever cown to the 8d of Novembe 1848. This fact, sa ® starting point in tho case, is of at importance to illustrate the part taken by the de- Fondant and hie newspaper rda the enterprire. And now you perceive from the evidence—and I pause here for a moment to call your attention to it—that before oe single line had been published ia the Hxratp, whish Mr. Fry considers as injarious to his managewent, he had had most serious difficulties with three of bis priacipal artiste, and had actually cancelled the contract of one of them. I refer to his treatment of Madame Benedetti Troffii, Mr. Rosi, and Madame Pico. He ha: creatw! some sensation by sending M. Maretzok to Madame Bonedetti with an absolute order. He hada so Mr. Rosai, according to that gentleman’s ant; been guilty of » ge breach of faith. pledged that be (Mr. Rrasi) should sing « solo at the concert in the Tabernacle but he violated his pledge; and, when Mr. Rosai charged him with having done so, he, according to the testimony of that gentleman, «came at him,” and threatened to strike. This dificulty occurred at his own room, and was not only an abuse of bis mana- gerial character, but was a violation of the hoapitelities of bis own house, Now, at thia time, you will ree he had varielled with one of bis artists, and dismissed her. He had sroduced anything but feelings of respect towards him on the part of his company, and he bad charged Madame Truffi with feigning sickness, Thus far, you will observe his position, having already quarrelie’ with his principal artists before one single word was published in the Henstp, He had done more than this, for, socord- ing to the opinion of Mr. Benedetti, he engaged more ar tists thar—he duplicated ihe characters in different lines—than cowld be supported by the largest im- come that has been attained by ary opera oF pany that ever performed in this country. Mr. Bene. dettt has had a large exporience im these matters, and ia perfectly compete ito judge of, and give ag opinion upon the subject. Mr. Fry had engaged, ail at one time, three prima doonas—Pico, Trafi, and Lsborte—and he had also two principal tenors, Arnoldi and Laborde. Be. nedetti knew that it was impossible for each of there fone to 8) r in the same oj and th 0 When Pene nd Truffi, ani .aborde anti Arno'di wore not engaged in the opera, their salaries, which wore monthly, were atili going on He had, then, not only by his courte of conduc: towards his artists, bat by employ- ing a larger chorusand orchestra than he could support — head, before any publication was made in the Henan, toon the reeds o} du solation, and wertata deatis of she opera, by his man: ent. It appears, from an af cram ation of the courve ‘of events, that the deadly character of these original mistakes on the part of Mr. Fry, was oevsr aggravated, aor were ‘are true and how | dant more damages by way of punishment, Naintif? hes sustained. In other words, if you hie. Fry has not rustained avy damsge yat zm pat your hands into the defen dent's et and take therefrom any number of dollars you think proper, and te give it to Mr. Fry : Gictive punishment npon the defeutant tend, and ask His Honer the Judge to charge you that t! compensation which the plaintiff is eat led to recover is such as will ramunerate bim jor the actual dameges he has sustained. If, however, & person has engaged mall- ciously in defar ing the character of @ citizen, which has ‘wrought no injury to thatciiiaem, the pablic are the proper party to avenge that injury. Tals is the proper way—it is open to all citizens, and if any fice is to be levied it should xe into the public treasury, and not into the pocket of Mr. Fry. The const will give you neh iustructioax upon that question as the true nature of the case warrants. I shall Bow pioseed to the consideration of the libuls themselves, and shall ask you to cetermine, first, whether any of the articles complaired of are libetious. 1 will cali your at- tention to the fact that there ia no atiack upon the pri- vate character of the plaintiff, and that if there be any- ‘thing cevsorious, its publication was made with the in- tention to elovate, and not to deprave, the moral sense of the commur It was made with the intention to pro- duce beneficial, not injurious, results to society; and if it operated to alter his position’ for the worse, or’ to render find that would have « right to the mansgemest ucder his conduct less in its duration ia point of ime—to terminate it earlier thaa it otherwise might—the circumstances show that tis reault would not be disastrous to the community, but might be looked upon as ® public blewmag. I have said tbat there is nothing im the ariicles complained of which teadat to afiect his private craracter, his individual respectability, or standing in society. It is no dograda- tion to his character to say that he ‘is aot competeat to manage an opera compary anc it does not cetract from the respectability of apy aan totay, when he comes be- fore an audience om ablic stage, that he appears io character of an ape. @ points of resemblance, whether they do or do not -xist, are aatters of private judgment ‘that don’t affect the private character of # maa, neither do they detract from the estimation in which he may be held by the pubic. It ia, therefora, no disp sragement to him to make these criticisms, to form these judgments, or to assert that hia appearance bore a greater or lesa re- sewblance to any natural object. These articles were not written to disiarb the publia peace, they did ndt tend to create any pubblic dirorcer, they ace not libel: lous, therefore, in that sense and! shall submit, when yeu hear them all read without regard to the moaniog given to them by the plaintiff, that there is nothing in them that could have produced loss of character, lois of respec ability, or loss of property, by ther publication. Remarks, therefore, of the character complained of in this libel, may have been fatrly and legally made by any person, and the right to publish is as broad as the right wapeak. If unintentional errors are contained in these criticisms, for such errors the law makes provision. They are privileged against actions. In this cass, I hope to show that the remarks in the article reflecting ou the character of the plaintiff, a) pager, were brought on by himself. If there is anything coutained in them not borne out in point of fact, it was not intended for the urpore of oondemration, but emanated from a belief of be truth of such statements, and the conclusions drawn from them were well grounded, as appeared to the writer at the time. With an assertion of these general priaci- ples, as to which I suppono the Court will instruct you, I would now ask your atiention to the articles published,and call on you to determine from he evidence whether the facts contained in ther, and, proved by the testimony,do not lay the foundation .. the criticisms that accompa- nied or followedthem It is difficult to state, in detail, what portions of these articles Mr. Fry considers unjust andjibellovs. 1 have made an abstract of them which I eo now Iay before you. They may be classified as fol. Ov B:— Firat, the articles that relate to the trouble with Truffl, which led to the writing and publica‘ion of her letter in the Hxxarp cf Friday, Nov: 8, 1848, The editorial eom- ments on the disclosures made by this letter also referred to the previous treatment received by Pico. Tris part of the case appears to be cispoxed of by the evidence prov- ing the truth of the allegation. That is the ficst article that sppeared in the Hxkatp containing any remarks on the capacity of Fry, or h.s course as a manager ; and at that time he had exhibited opera at tho fab:rnacle and at Philadelphia, for a month or more, and caused publica. tions to ke nade in reference to Truffl. That forms the trat libel and to that article I aak your atteniion. The second genera) head is the row with Henedetti, and under this I can classify some six or seven articles. ‘The row with Benedetti was got up by the plaintiff himself, at the Opera House, on the evening of the 29th of November, sccounty ef which, taken from the Courier and the Tri- bune, a6 well as the Hrnatp, tegether with Benedetti’s oard, were published in thé HenAup of Friday, December lst. On Sundey, dd Dec,, were published editorial comments on the appearance of the house, conduct of the audience, and appearance of Fry. The next day, Monday, 4th De- cember, wasgiven a history of the management of the opers during the season, end this was the ficat time such & Listory appeared inthe Herat), Yox, gentlemen, will find that the conclusi-ns arrived at are baded on undis- pets facts, Om the 6th of December, there were some ‘urther remarks on the opera and its prospects. Oa the Sth of January mppea: asa piece of news, the follow- ing notice:—" The opera in Philadelphia is burst up. When will the opera bere follcw suit?’ On the 18th of Jancary appeared a notice of the opera seson, in con. nection with the benefit for the rel: of Simpson, Tho next publication under this head, is portion of a letter that appeared in the Sunday Herato of Februery 11, 1349, which is complaiced of au a lirel on the capacity of Fry This concluies the second branch, and now it is necessary to oa'l your attontion to The third gevera\ head—the fancy bs'l. Under thia branch apposred an article om January 34, 1849, contain ing some remarks abont recruiting an opera company. On the 27th of January, en article appeared relatiag to the description of persona that attended the ball and opera. On the 8th of Februsry, 1849, an article on the subject of Jack Harrison’s pardon led to some remarks cn the charaoter cf the persons attending tha opera. On the lth of the same month eppeared a letter of the vawe tendency. This conciudes the third branch of com int. P Uscer these three general heads we have all -het Mr. Fry complains of ; and you will observa, firct, that the plainsiff says he was slandered in the first branch of these pudlications,in these particulars—that it was a part of his system of msnagement to have oritical attacks made upon the ‘emales of hide mpary, that he began it upon Pico ——that he il'egal'y and dianouestly oancellod her contract with him—that he purchased and bribed newspapers to Il- bel Pico sndTrofi—taat he wa: dered ia being with insulting Rorsi--thst he treated Trufi in a di graceful manner—tbat Mr. Fry was unequal to bis posi- tion asa manager, having great vanity and yet exhibit ing great incapasity, (‘vacity, pretensior, and igno- rance,” are the words complained of in the libel,) that he gct money for promised performances, and then cbeated the subscribers—an allegation for which there is 0 foundation in the articles complsined of—that he up fead with the best artists in the company, for which he had been rebuked, and that he packed the house to sustain him and break them down by hissing—that Bene cetti was hissed in consequence—-that he (iy) appeared on the stage in a ludicrous manner and the audionce sent him off about his busines:—that his measures were derigned to offend Truffl, Benedetti and Rossi, and either drive them from the opera or provoke them to commit acts which would authorise him to cancel their contracts; that he was charged with inability to full his contracts; that he was charjed with a fraudulent appro- pristion Of other people’s money, in giving sock and champagne suppers; that be was charged with violating hin promise, to ceposit ecourity; that It was charged thathe would retire from business, owing to his mismanagement and fraus; that he was charged with the misappropria- ticn of $3,060 to purchase a panorams of Venice; that the ‘sporling gentlemen” were a: the fancy bali, and pa- tropized the opera in the parquette and some of the private boxes; that he had not employed good chorus singers; that he tock the Uz in Phiade'phia, and turced editor and tmathed the concern. Now ths first question to examine, is whether the matters contained in there allegations are true. If bra ‘are substantially true in the senve in which they axe published, then there is an end of the claim. In What sause these remarks were #pok the true meanivg of the words is such is alleged in the inuendo, is a question of fact which belongs to the jury, So itis settied by the law in this State. Was Mr. and whethor Fry then qualifed to marage and successfully con: duct an Italian opera company in the fall of 1848, acd up to the month of February, 1819? Did he knew the natural characteristics, the professional constitutions, the personal susceptibilities of his artista, the rulen of deccrum, the exactness, nicety, and cere mory which they usually exhivit in their oraiaary beba- viour, and in their mutual invercourse with their mana- gerand witb each other? If he did aot, his gao7ance of ‘those with whcm he thus undertooa to dea! was « total Gigqualitiestion of him as @ manager, If he did not un- cerstand these people, thea his manner of dealing with them shows awant of good temper, tact and judgaont on his part, which equally disqualited him. These mu- sical a:tiste, lke fpoets, belong to the irritabile genus of the human family. From the examples before un, we are warranted in saying that they ate very intelligent, oriti- callyaccurate in forma of speech as well ax in forms of bebaviour, roused and excited quickly by the absence of customary attentions, or by intentional slighta. They are rerupulously puvetilious in the observance, and they de- mand the observance towards themselves, of the etiquette of their profession. Where did Mr. Fiy iearn the oharac- ters of these itaiiam ar.iste? Was it in the dry goods comm ission house«f Messrs. Bunn, of Philadelphia, and vher esrniog bin salary ase clerk? Was it ia his few months absence in Furoje in 1849? Was it while editor of the Phiir delphia National Gazette for three months fel- lowing October, 1840, and before it failed? Was it in acting an & real estate broker in Philadelphia, from the failure of the Gazette to 1845f Was it as olerk in Thomp- son's offies, a money broker in Wall street, from 1845 to 1846? Was it in taking part the church musis in St. Mary’s College, or in his amateur exercises upo: ophecleide? Ug, was it the common couvei tion with the Philadeiphia gentlemen about pre. curing the erection of an opers house at Piila- delphia in 1640, that was never built at all? ‘This is the history of Fry, as far as the evidence goes, nd can you, Task, have ang dificulty in determining from this what Maretzek says of him, that he was utterly incompetent in 1649. He was an American. He is not the worse for that, But he was to deal with foreign peo ple—not Americans, They were not of our babits, man- ners, or language. He knew he had to deal with them, anc yet, without spending a day in their society, or ming: lingla their company or Being in any manner conversant with their peowiarities, he undertakes to manage this dificult human machinery. As well might » man who cid not study a complicated machine, and knew nothiog abont its operations, become ita engineer, As weil might @ wan undertake to pilot a ship among rhoals and qnick- anda, in waters with: which he was entirely (imaoquaint- Tt in in evicence that, prior to 1848, he was never connected with any species of opera, or any description of concert. What are his musical pretensior Ifa wan could by inspiration or intuition know the science of music, how or where was it that he caused- the inspiration to flash? Was it in his practice {n, St. Mary's choir? Why, some of us that don’t sing at all cou!d join in,Old Hundred, or the old Grego cian chante? Did he learn it by p'aying on the ophaclside? His brother | tells un it was s0 long since = oy on that that he for- got what instrument it was, ‘hen he engaged as mana- ger, be was not known as an amateur. retzek, his anb maniger, told you that he did not kaow that he play- ed on any instrument, If he ever did blow on the opha- cleide, Le must have blown out all his breath. I have shown you thet he was not competent to act as 8 mana & from Previous knowledge or practical experience, now yee. his incapacity by actu sl exhibition. Bow did he exhibit his qualifications, or rather hie want of all qualifecations, at the outset of managerit career? In the first place, ha engaged Madame Pico contralto: he engaged her on the 4th of sugnst 1848, and she was t> begin to sing on the let of October, and to continue till Ist of June, 1849, at $200 per a oth aad certain benefits vhich it isnot neces‘ary to mention. He had engaged all his arti-ts for a period of eight months. Be war to pay Truffi $600 per month; Benedetti $500; and Rosai $160. It is im your recollection that whea Benedetti was asked if Fry was a competent manger, and was called woon to state the facts, h: said hit capa- city was poorin theatrical business, amd the proof of it was that he eogasd fifty performers in the orche: tra, forty chorus ringers, more principal artista than were wanted, wade mors expenses in cortume than ware ne- ccstary; and Mr. Fry himeelf stated to him, that puttieg forma”? om the itage cost him » thousand dollara, What was the cours» pursued in regard to Madame Pivo, before the concert was given a! the Tabernacle? With- out ever calling on hee personally, ia any manner— without making her acquaintance, except so far as the relimimary negotiations ax to the contract Jed them to Tnow esch other by sight, he senes her a vort of military order by the conductor of the orchestra, directing her to prepare to perform in @ particular part. There was xomething in the order opposed to the conventionalities which always characterize the eommunications between the mansger and his artists. She says, “1 am not bound by my contract to sing the part which Mr Kry arks me to sing. Instead o1 coming to seo me, and asking if I would so far depart from my contract and sing for him, he sends we @ military order.” Mr. Maretze brought her the order, says that he bai nothing the mere order. fhe says that Fry’s treatment of his artists ia not proper—in not decorous, respect or couciliatory to their personal feelings aud idear; an though not bound to ing aa directed by this military order, yet she consents to sing out of compliment to Maretzek. Now, ¢id ar. Fry, depending as he was on thia class of per-ona visit, consult with them and make up for Bin own want of experience, b7 obtainiog the assi of their better judgment? No, he didnot. Tue, he was not bouné to do ro, but was not that have been pursued by a man eng: kind—in an opera enterprise? Would it not have been but respectful to the artlats, and in conformity with the customs of cpera management? Weil, thea, after enga- ging those artiste, more numerous than the requirements of operatic represen’ ations, or the condition of his treasa- ry demanded or justified, the first step Mr, Fry entered upon was the org nizing of “a staading army,” as it was yery properly termed oy Mr. Foster, to support the opera and its management, and break down ail independent and adyerse criticiam, and drive down all remon strance witain the circle of artists engaged by bim. At the head of this army +tood “the Napoleos of the opera.’” Mr. Fry {a pleased with that epithet and will excuse my using it on this occasion; he finds it in one of the articles commenting on these opera affairs, and ¢oes not call it a satire, and, aa le does not take oot toit, I suppose the term is allowable. On his right then, as on his right now, was Mr. Sherman, the legal member of his staff; and on bis left was @ gentleman unfortunately missing now, the medical member of the staff, Dr. Forbes, In front were R, G. White. Mr. Otis, the other Mr Sherman, and Mr. F Maretuek headed the instrumental forces, and then came ‘the army,’’ made up of the subscribers for five years, and those for one year; and t! came the admiring friends who did not subscribe for any season at all. th eae nee ee his — fee the carrying on of the grand Italian opers, inten iapo: Ison like, to bear down all opposition. The res stood in separate divisions—the literary, the medi:al, and the legal departments—each stood by itself. The literary part of the staff was assigned its functions, as also were the other branches. Occasionally all the forces would be mustered as it were. The literary branch of the staff consisted of Mesara R. G. White, J. Otis and Foster. The first step to be performed by any membor of the atall wa the medical examination, which was done by Dr. Forbes; the second was that taken by the employmont of tha literary portion to write up the opera. Mr. Foster tells ou that he was te supply] the ‘‘independent and un. Ziascod oriticiem’” forthe newspapers. He wrote, L imagine, somethirg like » steam engine, preparing auy quantity of critiques, which were offered toany editor who would take them. He says, also, that Mr. R. G. White's occupation was the same as his ‘own Tho legal number of the staff was there to assist, if necessary, in apap reais when such an opération vogue expedient. We haye shor: 5, ay dirédt testimony, that $150 were paid to Fosterfor literary servises; White and Otis prepared articles also, but we do not know what compensation they received, Whether their remune)a- tion consisted of occasional visiis to the oyster cellars, or refreshments at Mr. Fry’s rooms, whi: hh the) very ranch fre. quented, isa matter of no concern here. It isenoug that werhow you that there were those persons employed by the plaintiff, and that such was the character of their labore, and that they performed them, Ido not at all complain about their furnished with refreshmenis—I think them reasonable under the circumstances, and only won der that Mr. Fry should consider himrelf to be libelled merely beesute it was said that he gave his devoted aup porters what was but necersary aliment. Here, then, was an organized bedy of mea, bound from the very outset to proésce a favors ble public opinion in repard ta the tal and, from the eridexdd before you, you will be pérfrotly able to judge whether that favorable public opinion was to be procuced, with or without reference to Mr. Fry’s managerial qualifications. You, gentlemen, will see how far there was to be anything like unbiassed ard inde pendent public opinion expressed through the writings Y the literary staff. Mr. Fry engaged, so far as we know, all his artists fer eight months. Indeed wa have before us the contracts of Madame Pico, Madame Truff, and Signors Rossi and Benedetti; all these writings bind the artists to perform for a period encing June ist, 1849, The prices to be paid to them, would beimportant in reference to one view of the care anc¥one article complained of. Madama Trafi wes the nuost expensive artist—she was to be paid $100 a month, for five months; Bencedetti, $500; Madame Pico, $260 8 month, and Rossi $160. They wore, as Maretzek telle you, “his best artists? Ihave allded to his manner of treating Madame Pico, previous to the concert, as indi esting the first semblance of difference betweon Fry and his company, as evidencing a want of knowledge of those conventional and professional courtesies to whish operatic artisis always suppote themselves entitled; yet it led to no aotual break up. Fico says she went on and frepared fer the concert, in ocmpiiauce with the plaints derire tor her to Lig in it. That concert was given upor a Monday evening, a: the Tabernacle. On Monday she was ill, and sent a medical oeriificate from her own physician, Dr, Trudean, stating that she was proper in & basiness of this unsble to attenc. Now, thst concert affair may porribly be referred to by the coancil on the other side, ag gving to show that these artists refured tor it were Strakorch’s concert. They cer- ing taiply did aot wish Strakosch to bs given out to thy pub- lo as the giver of the concert But what motive was there for Fry, who had secured their exclusive serv'ces, to undertabe to get behind another maa’s name, or give an undue promioence to that name? Those artists re- quested a change to be made in the announcement, but when satisfied that it was nt fe concert no complaint further was made. Here isthe programme of the con cert, (Holding it up.) It says that * the Napoleon of the Grand Opera in the Urited States, having made arrangements with M. Maurice Strakoscn, pianist to his Maje:ty the Emperor of Russia, has the honor to an- nounce”’ that he will give a concert, &c., on which occa- sion Siguorina Truff, Signora Pico, Signors Benedetti, Rossi, &c,, will appear. Now I call your attention. to this, for the purpose of vindicating Madame Pico sgains! what I anticipate the ingenioas counsel on the other side may throw out, what would bo ® most un- founded calumny, because we have heard it said, and it will be anid, that abe feigned » sickness; that her illness was not real; that eho way @ party to acon splracy toembarrass Mi. Fry in bia management, and I show you what che was to perform, for the purpose of showing you, in connection with other evidence, that what I have just referred to would be most unwarraat- able imputation on her character. The programme for the evening enncunces a duo from ‘“Semiramide,” by Troffi and Pico that was in the first part of the concert; in the second part, sixth piece was a grand finale from “ Giaramento,” by Truffi, Bennedetti Bio, Valen- tini, andothers, For the performince of those services, she folemnly swears ghe prepared herself, expecting to perform in union with others; all the others did perform without remonatrance, except so far as making an un- availing remonstrance as to the manner in which the ven out. Now the charge made here ix, that an illness that was rot real; and the further charge is, if you can rely upon the evidende of Dr. Forbes, that before he made any examination as to ber sickness, that she (Madame Pico) admitted to him that she was not sick at all, 1 will prove to you that Dr Forbes has fallen into an error 4a to that mat: ter. There is, without doubt a mistake about this affair, It woud have been madners on her part—nothiag less than clrect and unequivecal inasnity—to have made = Ceclaration of that kind. It is utverly improbable in it- welf, ond the assertion is shown to be inaccurate by cit- comstarces that canuot be mistaken. I have al-oady shown you that Fry eugag d Pico fora number of mouths —he engaged her in August, 18:8 Well, upon the day of the concert sbe was sick; but whether'sick or not, no publication was made in the Hxnatp and complained of Stor about that time. She bad rehearsed for the con- gert; and I call your at'ention to that fact, to show that Dr. Fortes was mistaken in Lis ststemont about Pico admit ing that rhe wea net sck If Pico dil not mean to ting, 1 suppose she would have absented herself from the Tehearsal—the penalty wouli rot have been any the greater. Now, what, gentlemen of the jury, is the evidence of her inability to sing at that time. because that will bring me to the cons! ion of all the evidence bearing on that que-tien, She swears, in the , that she was unacie to sing by restonot in- I call your attention to the state of the , FO far ax Pico is concerved in the case, not becaus itso important to either the plaintitt or the de- nt, in the determination of the issues in thia case, to settle the quest on whether M+dame Pico was correct and Dr. Forbes incorrect, and vice versa; but ass matter involving her personal reputation, it ‘* necessary for me to advert to the position in which she is placed in the course of this trial, Or the 4th of August, 1848, sha signed a contract which bound her to ring trom the lst of October, 1848, until the Ist of June, 1849, and during that period rhe bound herrelf not to sing in any place but under Mr. Fry's direction. The evidence shows very clearly that she relied upon that contract for her occupation, and consequently for her means of support. That ecntract contained there provisions:— First tha’ the direotor should have power, in case of feigned {1lness, to annul the contract, or claim a forfeit- ure of ealary, and dsmwages in proportion to the injuries sustained by him. The second provision says that, in case of non-attendance at performance, at the theatre, or elsewhere, there was to be aforfeiture of one month's sslary. Then you bave this iady, when this question a108¢, obligated to continue in the plaintif's employ: ment ur til June, 1849, remaining here for the purpose of performing the conditions of her contract, and en- geging in October, 1848, with other artists in the per- Jormance of her professional duti Thus you have her io a position in which, bad she made the observation to Dr. Forbes, which he stated he did mi subjected her to pay the plaintif! damag z relied upon rervices during the period of eight months, and she refusing to fulfil the terms of the oon- tract. She stood not only in » position by which she could be de; of all the advantages taat would ac- crue to her uncer ontract, but would be liable to pay all the dameges Fry might sustain by reason of his inability “to procure an ar- fist ef equal merit’ te perform in t place. It therefore prerente itself at the outst ane question, most extremely improbable, that Madame Pico would condaot herself in such @ manner aa would ontitle the manager to break the contract, and subject herself ¢ ‘to these juences, Bat let as hear ber oive testi- mony upon the subject. She ssys:—' I was notified to be present to xing at the concert im the Tabernacle, on October 2, 1848; I was sick upon the day of the concert; 1 bad received the notice, and rehearsed three or four before I wae taken sick; I could not aiog that nizl sent & certificate from my phyrician, Dr. Trad ting that I could not.” She then goes on to say rhe went om to Philadelphia in a day or two aft ber crogs-examination, che seye:—"*I did not kn Forbes; he called uprm me in the mame of Mr. never made the piatr tifl’s sequaintanes ‘and never apo to him but at one ixterview; he only spoke to me once or twice.”’ On her further ¢xem'nation, she wi kei what Dr. Forbes did and said at thatiaterview, aud she re; ds. “(He said I was not rick, witha very insoleat air; Doo- tor get angry; he objacted to what I stated, and offered medicines whlok I refused to take. Irsid I bod my own physician, and I believed be was sufficient Dr. Forbes taid he could make me well by the eveniog; the medicine wos pills, but I would not taxe them, That is the version which Madame Pico gives cf this securrence, au event she Aweers to positively, and om that point she cannot be ig noract, As to the existence or non existences of « mals Oy, the doctor might have beem mistazen, There is no ee tain meana that {am aware of, by waich medical gen. tlemen can intuitively bnow what really ails a man whev incikpored., Now Dr. Forbes undertakes to giv: tile version, contradicting that of Ma‘ame Pi Baye: recollect the concert that was iven about the 2d of Octo- Ler; 1 called o» Madawe iico on the day of the concert, be- tween cleven and one o'clock; L examined bet te soot thers bh the throat, and before making an examination the: me she was not ick st all. Iask you now, gentlemen, whether there is not in the fact that Forbes states, that before making any examina- tion, she told him rhe wan not sick at all—it there in pot in that mere orcumstence. in connection wi her position, and what had previously done, together with what she must have assumed the plaintif’ would do when her answer was reported to him, a suffi cienoy cf evidence toxearonably believe that the state- ment was mistake on the part of Dr. Forbes? I think you will s0 conclude, It is utterly incredible that ehe Stated npon that eccasion that ¢ ale was not sick at all.”” She denies it in terme rot to be mistaken; she swears to facta that chow it is most improbable—to faota that show iy is impossible she could have mace such an observation; and this gentlemen undertakes to tell you, as against her oath, and her acts, that she at that tine admitted to him “the was not sick at all.” I submit that from the mere inet in itself, having reference to the position of the par- tien, it is emtirely inoredible that she made any such ad mission; and the allegetion is proved to be erroneous by what occurred afterwards. Now do you for a moment suppose that she would have told this geutleman—the agent of the manager, Fry, that she was not sick, and she knowing the existence of the clause im her contract as to failing at performance, The plaintiff's right to an- nul the contract was instanteneous upon his receiving ruch information; but I assume, in the absence of any evidence rhowing the contrary that he did not receiveany such information from Dr. Forbes on his return from visiting Macame Pico, But, however, the fact of thls lacy’s going on to Philadelphia in a day or two after, shows, to my mind, that whe did not place herself in any position whereby the plaintiff would have the right to cancel the contract. She proved it by her going and of- fering her services at Philadelphia, Bat the plaintiff shows most conclusively that he was very glad for any shadow of an excuse ta dismiss her. He found out at Fhiladeiphia that he had eng ged too many artistes, and so he thought that if he could get rid of this lady and his contract te pay her $200 a month, it would be all the better for him, He did not want the services of the artist, because, if he had, he would have en- for the forfeiture provided for in the coa- tract. I suppose $260—one month’s salary, the forfeiture —would bave been a full compensation to Mr. Fry for her rot performing upoa that night, for mot singing ia one duet and one general finale with every one wherein one voice cannot be distinguished from another amid the din of the bass drums, bassoons, ani all those other instruments used upon such ovcasior Mr. Fry had the ancelling the contract, or taking the $200 forfeit—ke chooce the former course, But, though tho plaintiff may have Suppored that he had a good legal gtund Yor cancelling the contract, in what he thought the simulated Ulness of Madame Pica, I take it that his supporition upom the subject does’ mot provs tat her fllneas was not real. As to the reason which Dr. Forbes saya she assigned for not appearing at the concert—that she wirhec to spend the evening with Vietti, to whom she was lately married, and who was to sail {for Havana tke next day—I deem it utterly absurd: I cannot conceive, myself, how tenacious those attachments may be, or how unytelding they are in their demands, but (suppose all reasonable leave taking could take place 4°metime within twenty-four hours previous tos man’s depsrture from those towhom he may be attached. I ave not any experience in the matter myself, but I think the reason igned is frivolous in the extreme, Itap- ee to me that Dr. Forbes has got the wrong scene is mind when he came into oourt to testify: there ts the errer. Madame Pico’s ows conduct demonstrates it, and 2 shows that she believed herself to be in the right. When she returns to New Yori, she at once e: the services of a lavyer--ahe places the case in ds of air. R Emmet, (now on the bench) to enforce her contract with Mr. Fry. Do you Ly Lap that an intelligent lady like this, and she is a Indy of talent without doudt, would place her contiact in the naads of counsel for the purpose of enforcing it against the other contracting party, eae having the knowledge that her sickness had been feigned, in order 10 enjoy the compacy of a gentleman, and, therefore, had £o ground of action? No, genile. men; I submit thet her oath iat she was sick at the time, is consiatoot with her cox: cut the reaction, and is inconsim22t with Dr. Forbes’ testimony. I submit that sne stands braly upon that poin!, and stands by all the collateral ciroult stances of theaffair, anc that there are so many circum hiat ces that go to contradict Dr. Forbes, a4 will prave to avy unprejudiced man that the Dr. was'mistaken. Piso seys that when ehe could not obtain an amicable arraage- mentee to her difference with Mr. Fry—she had waite: here two mouths—eha then bad to go to another country to fulfil an epgagement, in order to obtain her moans of support, and directed her counzel not to pursue the mat- ter further, The counsel on the opposite ride, possibly wil say, that her abanconing the suit ia « proof of her having vo just ground of action. The matter at issue in a controversy of that kind would be one to which a lady would not ¢esire to publiely tesdfy. The fact that her ilineze was to be the subject for the determinatioa of a jury was in fteelf soficient, without other reasons, to ter her from prosecuting the suit to trial. In regard to the fact of being very much indisposed, yet the illness not perceptible to @ casual observer, I think I can state facts from my own personal experience that should be convinciag on that subject. Itis within my expe rience to address men in this and the adjoining chamber when I suffered the most poignant and patoful iliness, yet 1 think if the testimony of the bystanders had been taken they would have said I was not ill at all, I would be un- willing to be judged by bystanders, as to an illness which, of its own nature, was incapable of exterzal obser- vation, There may be @ power of countenance that can repress the pains that the person feels, and not indicate to the external observation the sufferings which, at the instant perbape, is accute and almost beyond endurance. Tray, that on 2 qnestion of this kind, a lady might weil hesitate to bring it intoa publfc court at all. She might be content with indemnify ing herself by getting another con- tract eleew rere, fearing that she woul: lose her costs upon prosecuting the suit toexecution. If'wecanjudge from the expenses of the plaintif—tuat before he became opera mansger, bad been a cierk in the dry goods business, an unsuccessful editor, a real estate agent, and it is reason- able to suppose that he had not accumalated a large for- tune, and moreover, his theatrics! wardrobe was covered by a mortgage—I think Mr. Fry’s limited means wonld have been aruflicient ground not to bring anacticnagainst him, in fear of losing on the execution. [only throw out these observations by the way, not knowing what the other side will advance, so that you may take them into consideration with whatever aspersions the ingenuity of my learned opponent way cast upon the witness, } say, then, in regard to the actual accuracy you will ba war: ranted in taking Madame P ico’s statement of the care, and very unwarranted in affixing any discredit to it, But, gentlemen, the Haaun did not make it the subject of comment. However. we intend to show you what another newspaper said on that occasion, so I wil! not further commert nponitnow, Enough to say, it was not the eubjeot of remaik by Mr. Benuett or the Hmwasp. Here, then, was the beginning of the cificulty, without any newspeper interference at all: it began from Fry’a dillering with Lis artist s, There was trouble between them at allevents, and it was unimportant toa person com- wenting upon such a matter which patty was the most in fault. Ifthe trouble was of such a character as en- dangered the suscess of the enterprise, it was a guill- cient and legitimate ground for newspaper comment Another circumstance to woish I will alinde is that Me. Rossi desired @ certain sosition, aud M:, Fry promised it w bim. Mr. Ky afterwards ‘dovied tht be made the promise, sud in plain Eogdeh told Sr. Rossi, when re minding him ef the promine, that he lied.’ Mr. Rossi says that thinking this strange conduct on the part of Mr. Fry, and thinking it improper to strike him in his own rcom, be arose and left the house, as any gantle- man would do under the same circumstances, ‘So we find Mr. Fry brought to this pass in his alfsirs unimpeded and unarsisted by the Nuw Yorx Hakaup, Now, ia re gard to the visit to Philadelphia aad attendiny rehsarsals there, Signors Truffii and Benedetti both say that the no- tice that they were to leave for Philadelpnia was handed to them in the evenicg, after the evening performance: aul they were fied to be ready to depa ton the fol jowing mornirg. ‘ibis was not notice giving reasonable time. They had net time ugh to m+ke theic prraonal arrargements so ax to leave at that early Lou; on the following morning, But, although this notice way insuf- ficient, yet. these ladies and gentlemen ‘era in Phia. deiphin, and attended the rehesreal on the following day; and they were these in ample.time, aod no ques- tions were asked them as to why they cid not come sooner, cr no fantt found with their arriving in Philacciphia in the afteroooa iusteal of in the morning. So much for that. This only bears upon what I apprehend will be alluded to by the ‘esrued gen- tlemen on the other side, an erranged conspiracy to iajure Mr. Fry. This, I bave been told, is what they will try to wake out; but I think to co it they wih have @ hard task to perform, unless you are more credulous oan I bave heretofore takem you to be, New, gertlemen, talk of defamation, Where is the defamation whieh will com- pere with the defamation thrown uyen the talented arte ist, Madame Truff, that she bad feigned an iliness in order to defraud and injure this mavagor, Now, I ask you what took place in Philadelphia at the rehearaal There. At the time of the first rehearsal Trufli was pre- sent, and performed her duty under many « the did this in coli weather; there was no fire iu the theetre, and she went to Philadelphia, to be present at this rehearral, throush a creuching rain, She told afr. was ill, and woable to sing. M:. Fry en- , And told her the was well enous; that her iipeds weuld Foon pass off, aud that ehe would succeed She wont to the opera that evening, anc ma 'e the attempt toring, and while sivging the cnvatina the becatne ill ard, according to the custom of her country, he placed her hard to her throat, to indicate to the audiense such an illness, retired from the stage, went to her dressing rocm, ¢rersed herself, called @ carriage, wout home, and went to bed where ebe lay ill for somo weeks. Now how perfectly absurd to call this feigned illness: that she shouid peril her reputation as an artist, and place herself in bed, a+ on unreasonable hour, and remain there for rome weeds, in order to carry out such a scheme. We might suppose in such & case, #hé would have gone home taken : upper, atd had some hilarity over the success not matural; it was red and flusbed, srance ef not only sickness waa feigned, for the pow of embarassing Mr. Fry, when auch embarassmen® ein) could operate that the testimony of Trai ‘a time of her leaving, and she had every ap> Very ill. Now it will be said to you ivolous pum» only to thi y of the Mines has sustained by perjured witnesses upon this a! Now, bow could they tall if ‘she hed her voloe or on that testimony came from no friendly soures. complainéd of being sick, aud she went to her her power LeHEOH, lacy says that she observed no slrns of fainting. how could rhe see, if it did not manifest itself by any ternal defame aw resgectable citizen conld be desigs no term but that of monstrous; yet it is made a man who claims Camsges for defamation, usband, where she remained until she left, was she im # pesition to know whether she fainted or It is @ sensation in which the total deprivation of The ly evideros they have fa thet of Strakosch, endl i room wit not? the f of motions is not slways observable. La Fate and the two otoers, prove nothing. i sigos? It seems to me that this attempt ate’ Crud | aa pore that the sickness had bees feigned, and suppesp: yer course for the mapager of an Italian Opera of kine? Fry knew it to have been feigned, what, was the = Tam Waa it for him to blazon it to the worid? you whether it was the part of a man of discretion, of good judgment aud of round sense, when he had ‘vbere artists and when they were hit only means of ing hi such. b ngagements, to tell the world that he wat em terms with them—that they were inimical te Baa stite, Lr that fora pean frivolous [eae they tried to break up the operatic manees, Degeneres pore that Madame Truffi wor Cerignedly break up the performances and deprives jd in this pi aucience of theiramusment? Do you suppose it was the: of an enterprising manage! the public?” What did Fry do? He telegraphed to Sherman, his legal agent from Philadelp! York. snd requested him to show the despa literary portion of his sry, to have t dic that Troffi had broken the he nied during the performanse of Norm timony shows attempted to perform at any time befo her first essay in this character. of feelings to contend with. The weather x to make the fac own—that + this was a which she had ae8 at » and this She had « complication yorable, and prevented her phys cally. fro ing in such s part, and domestic alli death of = much loved sister—cowbined, This gem tleman finally undertook vilely to calumniate hee, telegraphed that che had broken down. The ter this was te destroy her standing as a person of ioral lepresentations, and not ‘competency. He was only bound to give ‘Truffl and Plo; anybody who could stand ing of an audience w have answered the y Mr. Fry telegra caused widely Circulated the report that Truffl was incspable: to give them t! through the: isl phed to his agents, performing her duties, it was with no other design to give him an exeuse to cancel thes the contract of sack a= condust, tist, If you can nee apy other cause for such in charity extend i to him; ea bi he was, dependent upom those Me success, dependent upon her for the —a which he ex; to from the enterprise, cam famixg them? tion. Mr. Foster has proved the fact. pera that whieh $4, were 1! but none have done lication of which Mr. Fry complains, showing his tions with his eomeerr. fore the HxraLp publis was not # competent man for the place hi He was not ties which surround an attempt to conduct an Italie of the operatic season to the ees contract, if this ln iy failed to management, she could receise only the $1.200, wheseam for theseason of eight months she would have reeeived) 1 Were tho ettats to petore tn" company? Whee go ere a peform comp! Me, Fey had lence of ‘There is pone ae Fg a cng ae apy conepiracy, Benedetti was the Why ‘piracy, party moot extract Je that this enterprise was to succeed by ae and yet thst he did is beyond all quas- Sherman has not dared to gainsay it. There was a crowd of who might have been ex; to gainsay It was the foundation of oF hi ‘and his treatment of them, od one line, it was known tits competent man to combat the company in this country. esperiong o y impliedly cast upon Troffi that her illners was feigned— ‘eases teatimony is perjury—an imputation includes both Benedetti and Rossi—is entirely ashadow of foundation, and destitute of any which can be legitimate in thii sick or not it was no right 0 " ner fou: aspersion that 4! fecsicpal @apacity, broken down in ap toh had bees. allot Baws dafamad hav Mave Gore ee he had was a mere disincli benefit. I interest to feign an not feel, and thus failin her first puolic essay ti ‘Whether 3& u é HT manager 0 publish to the Som ited to her; Mr. ee ability ad an axtist, nad’ the only prow Quce fo sricre § Fr ain whether Truffi had ness which she i . E & ss ad been al ask you tT had been allotted to her if she had had aical ability to go on with it. I am aware, gentle! that Mr. Benedetti proves that there was to be a made of two months salary. Trufll’s salary was ili month, which would two months salary ard that of Benedetti $500, which would make $2.2CO were deposited. Now, from the very firat ‘ by the pefform, and injured the hey to @ place to perform in? Reyne Hoege, and the scenery aad proj It there waa i did he go through the series of rows in month when he could not do better tham leave this eam cern? Why did not he leave the concert? He had caaag enough to do ao, if he sd Sesired. I submit that there is no foundation for any imputation upon #6 Dastion, the artistes in the country were bound to Mr. Fry. were no means by which thee artistes could have tpou Wr. Fry, aad upon ihe sustaining ef Mie . Fry, and uy, C is tha the testimony oy at Boston, and Mr. Fry told them to go to office at a certain hour of the day, w ceive their money, they waited from 11 A. without finding any were informed that Mr. Fi, iat is get of Mr. Rosi shows. When 7; and whee had broken, ‘thet oe It waa was bo money. own, also, that they went from day to day, in the hope of Gilling their exhaaseedl treneury, and used their utmost endeavors Pc he. there was no money to be bad, Mr. Rosi, he bad not got any old clothes. The others did getany old ments were cancelled by eommon consent. And what wai the result? Why, asked Mr. Under these ciroumstances the ? Trail wrote her eard to New York, upon which the article was published which led to the first livel, facett called, and the article is Lad ‘This was b prone ‘on the 1st of November, lated 2d of November, 1848, This was translated at her request, and sent by a domes: tie to the Herat office, it is alleged that there wi conspiracy to break up the Italian opera, and that Mm Bennett wana party to it, and that Revoil was the writer of the card in question. How my learned friend connects Mr. Revol! with this I am at a loss to discover, since IS. been testified te that the writer of the note was me@ a writer for ary newspaper w! ver, They ask thes rh witoesses, in cross-examination—'‘Did Mr. Bennett know anything about that card ?”” and they all said he did net And row for the remarks of my learned 0) shown ful and in the j in the by my D a ad h from w about stayin pants Be (Trufi) was sich and unable to fulfil her duties. “The: Jeged libellous article ix entitled, O; of the Season—The Here the OPENING OF THE OPRRA SEASON —OP: lis zinning of the opera season is the berinning of trot fi cracy, and the tho velgar—and already w and exeiicment among | the following remarkal the ensuing day I rehearsed twice, mornin, fever on me. tally unfit to sing: ‘but rather than displease tho mauager, fort. 1) ared my nervousness au first act nature g: to my bed. For some sinister ‘The cruel ofte “ Gratetul for pi erve new favor. “New York Noy. 2 1843," This is a most singular and extraordinary card, trates the preternatural tact and mai it Nepolecn amoug manacers of Malian Oper made by’ ruffi of the mean treatment she has recetved iepem> fectly correct, every ronson to the manager kimself—the veritab be & part of his « his tactios—his enorgy—his govias menager—-in getting his oritios to comp avail jgnorant and blac! misble woman Thus cpens the grand reason for the fla tho Italian O) ponent. Thave that there was no reasonable doubt that = jing of the Trouble.” relerred to was read, as follows :=~0 hts ha ascod aw: Pi night, ednesday for it is a tuperb Teresa A OARD. “The ungenerous attempts that have boon mado of late lowor ro in the esteem of the publia comp ¢ircet appeal to their consideration me to make: I have beon and Philadelpt is fe journals of midst of an equinoctial tempat, having cau; appearance at the Tabernt the “T left Now York on the 34 of Ootober. for ore ¥ jo the previous nls arduous part of Ni ‘and afternoon, in a damp theatro. was the Maer firss time I over api ape ors of th» American mond, that I porceived at enew ister infiuence had beon at work to mislead the press of these attacks was to lower me in the tee Philadelphia public; and ag tho same * been renewed in Now York, where I have beam treated with so moch partinlity, I feel it due te my friends to make thisstatoment. I rely with eae the protection cf the public against my uakmewm provoked avsaiients, n “In justice to myself 1 should ad, that the recent news of the sudden deata of an idolized sister im Maly, I reuched me just before the opening of the Operas phia, no doubt contributed to aggravate the omentarily prostrated me sindness, L will labor cheerful “TERESA Taree” Mes. mt of Tho disclosare r cen there tesny mistake as to the ene he * sinister influence. Veve that the source of all these attacks: hieh ha at of indepen ttaok the females of Me began ths aystem upon Madame Piso. paDy. ed himaclt in her caserets happy indisposition—e Aness—then carcolied her engagement, an had hor handsomely abused by his critics in some ail newspapers, M is ‘ous the same 0. tablishment @@ thus begins the ree: nstruction of faghtom~ w York— lar nights and fir: nights” and second ve iby 1 la bagatelle. This is the whole of the article. Mr, Fry, as you wil find® by A cinary cor etruction upon it. oper® season was tho beginalng of trouble, has beem proved by reveral competent witnesses—th ferring to the complainant, puts an extraer- tracte “y at the “openlag of the es no déube that. In reference to the nights for the arist and those extra nights for the vulgar, a —that isa'sotree. If this arrangement was un: it must be ascribed to American imstinet. Americans il f this kine, any tions—even a privilege of \ Ginlike of this privilege of exclusive nights, Heaply 0 not in the habit of recognizing We manifest t home, and that is our pri ofthe privileged seats had aeen eealteaty their pecoliar nights, and when they were absent them up to the world at Jarge. The | was made was little im accordanne with American Ceal- Whatever those principles may have been, ta~ of the Bruin OS ou {TO Bx OONOLUDED 10 MORROW.)