The New York Herald Newspaper, September 17, 1855, Page 2

L an issue offered, which invites us to the examination filesof the Hzsa.pfor the last twenty years. If this ‘pike be retained, then the defendant can occupy the Court and for months in the columns of the Hmnaw. ‘Mate io the manner in which the defendant seeks to evade he exigencies of the suit which we bring against him. It would seem that these passages form parts of one @etence; whether that defence is justification or not, we = apprised, but we are led to suppose that it a. eight ii ference to the HERALD havit = fest on fH ia fssolyent houses in New York, included therein thirteen solvent firms.} fend incladed therein thirioer1o this eighth subdivision of Mhe answer. that weare to try over again the ty and Bennett case #71837. There is nothing in the libel hic inte to any such period or transaction. We are Bah No have this matter brought up again, having paid the fine then imposed by the Court. Mr.’Fry has no @laim to set it up as an offset in mitigation of the damages te be awarded to us for the libel which he has perpetrat- edon us. It 4o happened that in a: list of failures, pro- Debly embracing ‘hundreds of people, published in faith, ata time of great financial embarrassment, there wae one error discovered, and for that error the plaintiff was sued and fined, And yet this is gravely Brought forward as 3 justification of the defen- @ent in the publicatién which he has put forward. Your Honor may look through these ninety odd to- of anwer in vain to find anything Tesponsive to the libels contained in the letter of Mr. Fry. Now, as ‘te No. 9 of the answer. is point refers to an extract from the Boston Atlas, eon the same subject.) re we have a 4j ‘Mey attempt to jus mg black mail. The imen” of the mode in which their charges against us of levy find in the Heraup a reprint- ef an article from the Boston Atlas, and they bring it fo ward as evidence against us. This, as well as all the ex- tracta which I have read as yet,fare confined to the period ef 1896-7, a most fruitful year for the defendant in this ease; a yearin which he must have read the Heratp wery at vely and kept it in his mind or his portfolio ever 5 tever may have been the tone and the paper at that time, there is no attempt te it it has not been since everything which it be. In copying these hostile attacks the answer ailgges that “the plainut ves a true account of him. eM,” when they were republiched morely as specimens of Me assaults made upon the plaintif®s character and um In no case are the comments given; but with most unblushing effrontery they are put forward as Iaring had their truth acknowledged by the plaintif Defendant’s counsel made some remark,to the effect that ‘Ahese extracts were not accompanied by denials of their Mr. Sickles—Do I understand that rgd mean to say ‘that these extracts were unaccompanied by comments? Befendant’s Counsel—Unaccompanied by comments which change the spirit of them. Mr. Sickles—Oh! that is for the Court to decide. No one could say that the comments accompanying these ex- ‘wacts do not repel the charges they contain, except the Dewyer who professes to see that they are relevant de- ‘Pences to the libels set forth in the complaint. Now let aa see what No. 10 is. This is another extract from the Illinois Register re- Serring to the same publication of merchants who failed.) Now this is open to all the objections which apply v0 the portions of the answer I have already commented on, eats founded on the ey roe Se terrae Oa enen| e consequences of one rinting @ mul- Sirade of fresh libels. me Be Serer next read the 11th portion of the answer to h objection was made. It was an article publish- e@ by plantiffin reference to the decision in the Haggerty @are. ‘We have not’prosecuted Mr. Fry for anything to which is at all relevant. If he had alleged in his letter we had written this article, and if we had sued Aim for libel in making such statement, then he might Properly have set this article up. But what has it to do the allegation of our levying black mull on, the managers of theatres in New York?” Evidently nothing r. 5 [The twelfth portion of the answer objected to refers to ‘an article published in the Hxratp on 9th October, 1837, ing to be a solvent list of merchants in New York. Be (counsel) asked the Court to look at that branch o} ‘Mhe answer. Here is a charge, said he, that we published @ Uist of solvent merchants, for the purpose of coercing hove who were solvent to come forwatd and pay for the Ausertion of their names on such list; and yet no solitary instance is given in which any man paid for being put in ‘he list—or in which a cent was either asked, given, or weceived for sucha peepee. Tundertake to say that the re- ‘eords of this court could not furnish a more feeble attempt sta plea of justification for libel, and yet it proceeds from learned counsel who know full well that it cannot ‘be set up as a plea in this case. It is merely resorted to asa of scandal, of which the records should be purged, and which ought to expose, and does expose, the _ who swore to it to criminal prosecution and pun- nt for malicious libel, and exposes the counsel who wigned it tothe animadversion of the court, for the law Goes not allow counsel to use the records of courts for so ‘dase a purpose. (The thirteenth point referred to the Fanny Elssler and Chevalier Wikoff affair. ‘The defendant comes here and tells us that twelve years ‘ago a man of the name of Wikoff printed such and ‘such ; and now, in 1855, “I, Edward P. Fry, repeat them.” Under the advice of his counsel he spreads be- ore us this false publication, which defendant and his @ounsel very well know had been withdrawn and dis- svowed by the writer as untrue, and for which the writer made all the apologies and disavowals that an honorable anind could make. And yet this is rakei up and spread forth here as matter justifying the allegations in the de- Sendant’s letter. The defendant says it is pleaded be- eonse if represented fairly public oplaton on the subject. A more slender and fanciiul excuse for a plea of justifica- in a case of libel, was never inve: ie e fourteenth point of the answer objected to, is in mbaemen ts tos cial of Robinson ter ss manrder o€ Holea re din agbeaed iates 0b ing to represent Robinson ‘es innocent. Well. if we did so, what then’ The court and jury found him not guilty, proving that the He- BaD was right. fifteenth point was based upon a statement of Hoalitin relerenoe to the foregoing. fe charge here (said counsel) is specific that we ex- from a particular individual sums to the amount ef $13,000, and by insisting on payment of further hush ‘money, drove him to suicide. » is this man? When @id we get the money’ How did we get it? What was ur further demand against him’ Not one averment of fact is giver Under what circumstances did this man commit suicide? The publication in the Heratp (re- ferred to in the point) can be explained and justified on amoral grounds; on grounds consistent with good order and the well being of society; and yet itis set up here ‘to show that we are the enemy of all these interests, ‘This extract which | have read is the basis on which Mr. be Teng 3 to supgdrt this gross libel. What have we here fm this defence? “First, we have an allegation by the de- Sendant that a man now dead, (Major Noah,) told him a tory which he (Mr. Fry) believed to be true. There is mo averment of the truth of these tacts related by him. Then, secondly, we have a long extract from a news- paper abounding in denunciations of the personal ro editorial character of the plaintiff; but there is no attempt to aver the truth of these , or their relevancy to this case, ‘The @efendant would never be allowed to prove, in anac- tion of this kind, that this story was told him by Major Nosh. He would never be allowed to give in evidence ‘thearticle from the Time and Evening Star, to which he zefers, and what excuse can be given for spreading on ‘the records of the Court these gratuitous and scandalous @enaults upon private character’ {Counsel then passed on to the sixt erence to a pamphlet entitled “ The f James Gordon Bennett."’) Bere (said he) we have aa ex!ract from an anonymous ‘ook published in 1844 spread out in this answer. For what purpose? To show that the defeadant bad only re- peated what had been published before in a more vague and general manner. ‘This is exactly a case of one li- Deller justifying his libels on the libel of another, Some it “to-morrow, on the sume principle, publish this letter of Mr. Fry's in the Times or Journal of Com- ‘merce, and defend that act on the ground that Mr. Fry dad published it before, This theory utterly ignores every principle of law. The answer goes on to give va- wious other extracts from this pamphlet. This hired g@eribbler, this anonymous penny a-liner, only differs from Mr. Fry in the fuct that the former was afraid to write over his own signature, while Mr. Fry had the @udacity or the courage to a 4 his name to his letter. 19th clause of the antwer objected to isin refe: ence to the London Times making extracts from columns of the Hmutp. IN be stricken out, mot because it is scan- nth point in re: fe and Writings It is palpably. irrele is in reference to the ct in Purope of the publication of the list of insolvent ‘Trme in 1837.) A wore complete answer could not be suggested than ‘Mat furnished by the defendant in this clause to show ‘Why thir list of solyent and insolvent houses had beea prbtiahed, But this, however !t may explain and justi- Fy the publication of that list, has nothing to do with Shia action, because our merit or demerit in that ma‘ter an in nowise come within thi case, [The zirt point referw to the character of B. H. Revoil Will hardly be necessary dor me to observe to abe Cuurt that the character of Mr. Revoil is not issue in thie action, We do not sue Mr. Fry for Bin ike on Mr. Revoil, but for hia inst = therefore all that clause is whoily im, nt, can Mave no place here. But I desire to call your Boner's avention to the inet four lines of this clanse. [They rtatein substanee that Mr. Revoil wae the agent of plaintiff in byying black mail.) Now, under the respon- wibility of a arty called upon to answer a charge in good Mhith, and unter the responsibility of the learned coun- wel, an lawyers, knowing that tt was an averment of the atrath of the matters cl to de libellous, and not an ou of the orginal \itel, that’ they were we find partice and counsel com- th libel upon your records, pt to specify an instance in which Re- any much capacity as that charged: but only @ grors repetition of the mere There is no att ever acted ead of that curation, (The 22d point waa in reference to Mr. Galbraith, the ‘eeunsel of plaintiff, Now your Honor, (said counsel in reference to this polst,) can there be my doubt that it was perfectly well to the and his counsel that the cl bere attempted to be brought against Mr. Galbraith, A raerctes and honorable practioner of the Court, was not Did they not know perfectly well that this matt Tot kama ting whatever todo with the sult? Did oa _ Mr. Bennett does not sue Mr. Fry for bel ay,’ And yet this is forced in, in ell ape omh a which governs the wise 'y spite, to t hatred, By placing these gral charges sgainet Me. Galbrath Of this Oourt! What meen, @ase to defend Mr. Galbraith trom these charges ¢ “Wont Honor would not allow us to disprove them beca are not relevant to the issue. law will pen haf such an attempt to injure the reputation of a third per- gon, who is not a party to the suit, and who has, there- fore, no opportunity to prove the falsity of auch state. ments as to himself. It would be # disgrace to the admi- pivtration of justice, if any court should permit its re. ss tebe used for such purposee. AD atjorney whe & i NEW YORK HERALD, MONBAY, SEPTEMBER 17, 1855. files a scandalous pleading like this, is guilty of a con- tempt of court, and the who should affix his name {9 would’ be personally lable for the cmt of ceed | unge the scan: Prothe 234 point ia in reference to the Hunan editor'al onthe quashing of the Fry verdict, } When we come to the folio of the answer, we for the first time arrive at something relevant to the matter. From the first to the eighty-third folio there is nothing relevant. Even this clause ia an uanecessary and re- dundant averment, and is therefore irrelevant in a legal sense, being’ neither in justidcation nor in miti- tion, We come then to the twenty-fourth part of e answer, averting that the defendant’s “card” was true and fully warranted by the occasion. This twenty-fourth extract might very well perhaps have been offere as a portion of the learned counsel’s summing up to the jury in the case; but to find it offered as a de- fence is one of the extraordinary circumstances in the case, “+ You libalied me in your paper,” says Mr. Fry, “and I will rely upon that as my justification for libelling you in any newspaper I can gain access to.” That is the principle gravely relied upon and put forward by the other side, If such an answer as this had been brought for- ward on the idea that there was no law governing plead- ing, and that a man might in a plea heap up any amount of libels, I could understand why such a plea as thix could be framed, But can understandit on no other hypothesis. The counsel on the other side knows full well that the law was never in such a prostrate condition as to allow sucha plea as this to be put forward in a respectable court, The short extract of four or five lines in this clause is all that we have to enable us to conjecture what portion of the answer is offered in justifieation and what in mitigation of damages, It is uniformly held that where you plead matter in justification and matter in mitigation the two must be clearly distinguished from each raters must furthermore plead facts, not epi- thets: you may aver the truth of a libel, but you cannot stop there; you must go on and set forth the acts and doings of the party showing him to be guilty of what is imputed to him; nor is a party allowed to crowd a plead- ing to repletion’ with evidence in support of its aver- ments. ‘hese are elementary principles of pleading that no lawyer can be ignorant of, much less dispute them, and yet this answer of the defendant Fry is drawn in as utter disregard of them as if they had no existence, It is nothing less than a fraud upon these well settled rules, for a pleader to accumulate fifty or sixty pages of epithets, ru- mors, abusive extracts from rival journals and anonymous pamphlets, in one foulmase, and theneay, ‘Here, we ofer thatinjustification,and ifwe cannot offeritinjustification, then we offer it in mitigation of damages.”” ‘The decision in the case of Fry vs. Bennett lays down the rules govern- ing this case, and must, of course, be familiar to the other side. {also refer {o the cases of Graham vs. Stone, 6 Howard, 15); Newman vs. Otto, (4 Sandford, 669); rown vs. Orro, (6 Practice Reports, 376); Newman vs. Harrison, (6 Code Reports, new series, 184); to. the opinion of Judge Hand in the case of Carpenter vs, West, (G Howard's Practice, 63); Summers ws. Torrey ( |); Bush & Prosser, ‘plaintiffs, (Kernan, 360); and bee'vs. Shaw, (2 Kernan, 67. Counsel for defehdant ‘next took the floor, and argued generally that the answer was quite relevant. Mr. Field arked whether defendant’s senior counsel proposed to argue it? The senior counsel for the defendant thouglt that as he did not propose to address the Court, the argu- ment should be considered closed. Judge Bosworth did not desire to lay down restrictive rules, If Mr. Field wished to make an argument on be- half of the plaintiff he would be at liberty to do so. Defendant’s counsel did not expect to inake an argu- ment, and therefore did not prepare himself. “ Judge Bosworth inquired as to the understanding of counsel whether the letter of Mr. Fry—on which the action was founded—was to be considered as a libel in totality, or as a series of libels? Defendant’s counsel intimated that that was a point on which he wished to be distinctly informed. Mr. Sickles—We suppose that taking. the whole letter ina lump, it is one libel: then, if you analyse it, it may be subdivided into a series of libels. So faras it’ relates to distinct and independent matters, there are several jis s Judge Boswell—There are just as many libels as_ there are distinct matters involved, and on the proving or dis- proving of which the plaintift will or will not be entitled to recover. Ido not know what suggestion may be made about it, but Mr. Jordan should hear it before com- mencing. Befendunt’s Counsel—They have declared this letter at large as a libel without pointing out any particular por- tions of it. They complain of tne whole as a libel in the bulk, If ‘they rely on any particular portion of it as libellous—the black mailing for instance—then our de- fence will be foe on that. Mr. Sickles—We regard it as one libel. Defendant’s Counsel—Then, if any portion of the an- swer applies to any portion of the mass of libel, it may be given in evidence, and cannot be taken out of the case. ir. Sickles—We do not mean to say that every line of the letter is libellous; but that the letter as a whole is libellous; it abounds’ in imputations upon the plaintiff, affecting his character and 81 ee | in the community, and tending to bring him into disrepute. Therefore, considering it synthetically, we regard the whole letter as a libel; and when looking on it analytically, we regard it as a multitude of libels. ; Defendant's counsel then proceeded to argue in general terms that the portions of the answer which plaintiff asked to have stricken out, were not irrelevant, and ‘ should be retained. Adjourned to Thursday, at 11 o'clock A. M. SECOND DAY. Monpay, Sept. 13.—Mr. Frew continued the argument on behalf of the plaintiff, He said:—It is not often that I should advise a client to moye to strike out irrelevant mat- ter from a pleading. Ifan attorney so far forgets himself as to insert in a pleading matter which the law does not allow, I think it better generally to leave the Court to deal with it, and to reject the irrelevant matter on the trial. But where that which is irrelevant is also offensive —where it is put upon the record of the Court as a vehicle of abuse and to gratify malice—I think it then the duty cf the other party to apply to the Court to strike out the objectionable matter. In this case my client has, I think, acted wisely in making the application, thongh I regret the hardship which it will impose upon the Court in com- pelling it to wade through this mass of heterogeneous matter, piled up in the answer for no other purpose whatever, as we think, than to gratify {ll will against the plaintiff. The libel put forth by Mr. Fry, for which this action is brought, was published while he was himself claiming redress against the plaintiff before this Court, for an al- leged libel. Coming here to prosecute the plaintiff for libel, he turns from the legal redress he is seeking, and takes the law into his own hands, gratifying himself by a libel on his part, as gross as was ever written. He publishes a letter, in which he attacks not only Mr. Ben- nett, but all who had any share in the failure of his own suit, not sparing even the Judges of the Court. 1 have said that Mr. Fry's libel upon Mr. Bennett was a very gross one. You have only to glance at it to see that it almost exhausts the vocabulary of abuse, Among other things, it charges the plaintiff with exacting mo- ney by threats—levying black mail, as it is called, The plaintiff determined to put the libeller to the proof; he brought this action, challenging him to make good his charges if he could, What reply does the defendant make to the challenge? He puts in an answer, under oath, in which there is mot a single instance given except one, and that is given without name or date, ufon the pre- tended authority ofa person now deceased. Not another instance is pretended. This is a circumstance worth re- membering. The defendant charges that the plaintiff has made it a practice to levy black mail on managers of theatres and others, Being prosecuted, he does not even venture to say that he believes i a single instance of the kind but one, and in that he dare not give the name of the party, or the date, or particulars, so as to give the plainuist ‘an opportunity of refuting tle imputation. Bat he puts into his answer extracts from the Hera, not one of which is of Inter date than 1808, with an article from Mr, Noah's pares, of 1841, and a letter of Mr. Wi- koff's, published in the Repulic in 1844. Whether these ee to the defence is the question now to be de cided. In order to determine the motion before the Court, four things are mecessary:—First, we are to see what is the libel complained of; secondly, we are to see what is the attempt answer ¢o it; thirdly, what are the rules of law applicable to such a pleading; and, fonrthly, we are to try the answer by these rules. The libal contain- ed in Mr. Fry's letter charges the plaintiif with having driven one weak-minded man to suicide, and nine other able-bodied men to horsewhip him; with having formed a plan to injure and blacken his character and ruin his business, because he refused black mall, advertlsements, and putting defendant's (the Henaun't) attarhés ou the free list; with receiving black mail profits on theatrical advertisements amounting to from $12,000 to $20,000 « year; with publishing for months columns of abuse and defamation ; stating that the Opera Honse waa the resort of gamblers and prosti utes, and was supported by them; with falsely accusing bi swindling; with pab lishing a lying statement thot the Philadelphia Opers. fens had beret pe tee and abusing the {requentere of the Opera; fi to slander the performers; with calling him, fieiteadeat, and half-starved musica adventurer; with bis (the tiffs) being a Scotch vagabond end » Scotch with being ied by his avaricious and hellish i continue always the system of extorting mor alanders and threats; that when sued he res perate efforts at delay, as his only resouree, and succoed- ed by aid of lawyers and the connivance of Judges; that Mr. Noah was ready to swear that he extorted $13,000 from one man, and drove him to euicide: that he obtained perj testimony from Revoil; that Strakosh’s testimony was, that plaintif threatened to finish him, (defendant) because he would not pay him black mail; that no editor was bare enough to class him- self, or to be classed, with him; that with his {ll-gotten wealth, and an army of lawyers, he was obstructing the course of justice, inthe hope that defendant's witnesses might be out off by death; that managers of theatres pay him large sume of black mail; and, lastly, that witnesses, like vile cowards, dare not give the tertimony that would & effectually blast him, That, sir, is the libel. Now, let us see the answer. It sets forth that the plaintiff, by his coarse and conduct as editor, was wellknown to bea common, notorious libeller and liar, and had established and built up bis wee libels and by articles to extort black ke. t is given without any specification of times, of names, of 0c- casions, and is bat a repetition of the libel, without any particulars. Second, that he published tn ‘his paper, of If, his character and principles, communications prrport to come from correepontents attacking him. iat he published his opinion in June, 1837, that foar- fifths ae clerey yes crantey were no gs than they o1 2 rv contained a libidinous effusion published in April Tove: that it abounds. in arti. cles too disgraceful to soil the records of the court; that he published the names of solvent and insolvent m: chants, and was indicted for libel on Mr. ty; that Wikott pabliahed ia 1844, the article tu the Mepublsc oon: cerning him god Fanny Eleler, vbich cefeudagt iu ia- formed apd believes to be true; that he called Robinson at one time innocent and at another time of the murder of Helen Jewett; that Noah him in 1641, thearticlein the Times and ‘Star; that some person pul an pam; him; that he had been by six his course as editor; that the London mes copied the artis cles of the Hemaip; that t had documents from defendant Paris showing that Revoil committed a crime; that Mr. Galbraith, his attorney and counsellor, had sworn falsely in an affidavit in another matter; that the plain. tiff had published certain comments after the decision of the court ‘8 new trial in Fry’s case nett, and that ‘ndant’s reason for publ ‘was that he could not get satisfaction from and, in conclusion, the answer states that, ‘in case answer, and the facts and circumstances therein set forth, do not amount tos full justification, the detead- ant will give them in evidence as mitigating circum- stances.”” That is the defence set up, with a great deal of ampli- fication and repetition. Now, let us see what are the roles of pleading a plicable to’ such @ case. They are— 1. That thougl eesontion and mitigation are both of them defences—one total and the other pai 4 may both be set up in the same answer, as has been held by the Court of Appeals in the two cases in Kernan (ist, p. 453, and 2d, p. 67), yetthey must be separately stated, and must refer to causes which they are intended to answer (rule 87); and if not so stated, all of the an- +wer not relevant to the first defence must be stricken out as irrelevaitt, This follows from {wo reasons: First, that a party sball not be allowed to have an advantage from violating the rule of the Court, and shall not therefore be heard to say that he has set forth more than one defence, where he has not separated them into two; and recondly, that if two defences were to be blended, both should be complete and everything stated should be relevant to both. And so the Courts have ruled, (See 6 Howard Practice Reports 290, 208 ; 9 How. 48, 645.) 2. Whatever be the defence, nothing is relevant to that defence which you cannot be allowed to prove on the trial in support of it. ‘This rule is applicable, whether the answer sets up a justification or mitigation, or both. If, for instance, you consider it as a justification, and anything in this an- swer cannot be proved in justification, it must be stricken out, So if you consider it as a mitigation, and anything be there which, presiding at the trial, you could not allow to be proved in mitigation, it must be stricken out. It is an invariable rule of law that whatever be the defence, nothing can be put into the answer which cannot be proved in support of it. 8. Then comes another rule, by no means the conve:se of the last : that though you cannot put into an answer anything which youraust not prove, you Neca not at lib- erty to put into which you prove; you must nat put in tice a but you must putin the facts themselves, Whenever, therefore, a defendant inserts in an answer the evidence of a fact which fact should constitute a defence, instead of stating the fact itself,the statement of the evidenee must be stricken out, the law only. allowing the facts to be stated, and not the evidence of facts. 4. No fact should be stated which is not material—that is essential to the defence ; or, in other words, which could be stricken from the answer without leaving it de- fective in substance and insufficient as a defence. A pleading is like a chain, every link of which is essential; and any one link being taken out or broken, the chain fulls. Whatever fact, therefore, is inserted in a pleading of any kind, must be a fact so materia} to the cause of action or to the defence, as if that fact drops, some part of thecause of action or defence drops with jit. The fact must be essential to the cause. For example: In this case, one of the charges against Mr. Bennett is, that he drove a weak minded man to commit suicide. When the defendant, instead of averring that the statement is true, that the man referred to was such an one, that at such a time and by such a course of conduct—mentioning it—the plaintiff dioye him to commit suicide, when instead of doing that, the defendant puts into his answer a letter from a corres- pondent, which, as the learned counsel argued yesterday, was tantamount toa statement of that fact, what may be the result? The case goes toa jury, and no such letter is proved. Does it follow that the defence fails? This shows that it is not an essential issuable fact whether a correspondent wrote such a letter; but the Issuable fact is, whether or not the plaintiff drove the man to suicide. That fact is to be determined by the jury, and isthe one to be put in issue by the pleading. 5. Repetition is redundancy. A fact once stated in a pleading, must not be repeated. 6. This brings me to the last rule which I shall men- tion, and that is this: If the partial defence of mitiga- tion were to be made in this case, no facts could be stated in the pleading,’or introduced in evidence, except such as should go to prove either that the general character of the plaintiff is bad, or that at the time of publishing the libel the defendant had knowledge of facts tending to make him believe the charge to be true, and that he did believe it. (4 Sandford, 670; 9 How. Prac. Repts. 48; 10 Howard, 88, 128; 1 Kernan, '361; 2 Kernan. 73.) Com- mon report of the truth of the fact cannot be given in evidence, nor can the fact that he—the libeller—was so informed by another, or by any number of others, be given inevidence. (8 Wend. 609; 19 Wend. 296.) Judge Bosworth—Not in (oer ba of damages? Mr, Field—No sir; not even in mitigation of damages. Nothing can be given in evidence but the two things I have stated, Judge Bosworth—If the defendant pleaded that Mr. So and §o—a man of good standing and credit—told him that, to his own knowledge, this man had done so and so, that’he believed the statement to be true, and that, there- fore, he made this charge in good faith, although it was mee Fete not that be good in evidence iitiga- tion! Mr, Field—No, sir. A man who circulates a report to the detriment of another, must prove its truth. He can- not give the report in evidence in mitigation. For exam- ple, one man walking down Broadway in the morning, says to another:—“I understand that my neighbor, A. B., failed yesterday—” ji Sudge Bosworth—But suppose he says that A. B, did faily Mr. Field—Very well; that is a case still stronger. But even if he says, “I understand ‘so and so,” and if the person informed repeat the information and is sued for Tinel, he cannot give in evidence in mitigation of damages that he was told by such an one that his neighbor had fail- ed. The authorities are very carefully considered; what is admissible in evidence as mitigation, and what is not, is well settled. Reports cannot iven in evidence. Judge Bosworth—I supposed that was 0; but I also supposed, till now, that information repested as such could be given in evidence—I must confess that I cannot see the reason why, as a matter of common sense, if I tell you in confidence that a third person was caught last niglit in company with burglars, breaking into my house, and if you repeat my statement and are sued for it, I say Ido not see why, as a matter of common sense, you should not be allowed to show im mitigation that ypu been told so by me. It seems to me that when we come to the question of malice, such proof ought to be allow- ed to show that there was no malice, Mir. Field—It might at first sight appear so; but the proof has been rejected on much consideration, for the rea- son, I suppose, that it would introduce a greater mischief to allow a man to screen himself by the information of another, than to hold him fully re-ponsible for the truth of the information if he repeats it. Judge Bosworth—I also supposed that it was not enough of itself to prove that a particular person said s0 and s0, but that you must prove that a man of candor and character has made the statement, as preliminary to giving it to the jury. Mr. Field—It is very true that the fact of having the information qualifies the mottve of a person in making the statement, But the courts have rejected it for the reason I haye stated, To admit the evidence would prac- tically deprive the party beled of a remedy, becuse, if you sue one he may say he got the statement from another; and when you sue that other, he would refer you to « third, and go on till the party lbelled could get no satisfaction at all. But whatever may be the reason of the rule, the rule itself 15 stated with great distinctness in a late casein the Court of Appeals, ‘Assuming, then,” says Judge Sel- den, in Bus] ageinst Proper, (1 Kernan, 260,) “what cannot well be denied, that aMimative proof of malice may be received to aggravate the dat ee and enhance the verdict, in cases where no such proof is necessary to maintain the action, it inevitably follows that if the de- fendant can show that he was not actuated by any mali- cious motive, he will thereby mitigate the damages; and that he must be perm’ tted fo give evidence for that’ pur- pose. Itis clear, therefore, that the defendant has a right to prove the absence of malice in mitigation of the verdict, and to do this, it is of course indispensable to prove that he believed, and had some reason to believe, the charge to be true when it was made. But how is he to make this proof? There are but two conceivable modes of doing it, One, by proving that he had received such information from other persons as induced him to believe the charges to be true: the other, by showing the existence of facts and circum- stances within his know! calculated to preduce such a belief, Repeated efforts have been made by defendants to avail themselves of the former of these modes. The ree Mena being iF that a defendant had a 1 'o repel malice for the purpose of mit the damages, there seems Tlauatbitity ‘atleast in te pont tion that he should be permitted to show that he had been led into an honest bellef of the truth of the charge by the information he had received. There has been much fluctuation upon this question in the English courte, But. in this country the evidence bas bea te- ected, for, ax it a to me, the soundest reasot It Wen long settled in this State and in Massachusotta, as well as most of the other Stotes, that although evi. dence is admiasibie to prove the general character of the plaintiff to. te bad, yet that no such reports or rumors, not amounting to proof of general character, nor infor- mation obteined by the defendant from othere os to the truth of the charge, unless accompenied by proof that such information is true, can be received for of rebutting the presumption of malice, Thi reduces the defendant to proof of fac ¢ ces known to him at the time of making the shecge, hay ing a tendency to indnce a belief of it trath, as the only means of showing # want of malice,’ Trying the answer by these rules, it wi!) be found that eve ry one of them is violated. The first pa: in the answer objected to is, that the plaintiff was well known libeller and linr, and has built up his paper by libels and black mail. The objection to this passage is two-fold: Most of it faa new libel, having no connection with the old; the rest is but « repetition of the bel for which the dee fendant ¢ second passage objected to is, that plaintiff’ ed in his paper correspondence reflecting on his own character and principles. It Is very easy to see why it was published and that it has no bearing on this controversy. What we have to do with it is to show that it does not come within any of the rules, either as a justification or in mitigation of damages. If intro. duced as evidence, it is not evidence tending to make out 4 fact or circumstance known to the defendant, which led him to make the charge. The next passage is that in which the article is published reflecting on four-fifths of the clergy of the city, Does that tend to justification or to mitigation of this libel ? Another part objected to is that plaintiff published tho namesof failing merchanta in New York. What if be did? It does not prove that he extorted mousy from Them. Also, that he was indicted for one libel and fined, and paid the fine. That has not the remotes! connection with the libel for which this ac- tion is brovht. Then, it tu stated that ee published a list ofeolvent houses, te are establishments in this city whose bu- siness it {s to furnish information to merchants in regard to the cireumstances of their customers. Butis thata rea- son why one shoul’ Lbel the persons conducting such establishments? Wikoff's publication is epread on the records as & defenge/what bas it to gp with this case/ would be re- If it were offered in evidence on the jected as soon as offered, Next it is that plaints pronounced Bomasen ge iy at one time, and innocent at another. What does that prove, except the fluctuation " robe, eed to the eee eee ar wobeter os opinion or jebster a8 to the murder of Parkman. ‘The next is the article of M. M. Noah. The sameremark with which I have disposed of Wikof’s letter applies to is. Next comes the anonymous pamphlet. Surély not even the defendant’s cow will venture to say that could be received in evidence. Icome now to which I draped inte thle eee, I “he al ir 10 this cont 2 Te seniart ie Galbeuien oatniees la ie otter aan to your Honor as a high magistrate administering Justice in his cause, whether it ls proper—whether ie jute whether it {8 professional—for counsel to put upon the records of the Court such a charge as this, in # such a controversy, upon the miserable pretence that it is, or maybe, relevant to some question in the trial. Why, sir, in the first place, it does not go at all to make out the allegation in the libel, that Mr. Bennett was as- sisted not only by some of the most respectable members of the profession, but by a “(Tombs pettifogger.” There is no pretence that Mr. Galbraith ever had anything to do with practice at the Tombs. The pretence is, that he made an affidavit in another matter, which aflidavit ia al- leged to be falve. Mr. Galbraith is justly indignant at this charge, because he has no pentane and can have none in this suit, to prove the charge malignant and fale, AndI submit to you, that not only abould this portion of the answer be stricken out, but it should be stricken out with evidence of such disapprobation as the Court must feel in respect to this attempt to prostitute its records, Mr. Galbraith is nota party here, He is a stranger to this case, except he happens to be profession ally concerned in it. But are we all to be attacked be- cause we dre professionally engaged’ Is not only the cli- ent, but thecounsel also, to be at the mercy of these libel- lers? Isa party in a libel suit to be deprived of the as- sistance of counsel, or i be to obtain it only at the risk of being ingulted and calumniated ¥ Again: The comments ofthe plaintiff on the decision of of the Court in the case of Fry ye. Bennett, are inserted in this answer at th from the HeRaLp. These com- menti Il respectful; and whatever objection the de- fendant may have to ‘them, they have no relevancy to the defence of this libel. Lastly, sir, we wish you to strike out that part wherein the defendant reiterates lus motives for publishing this libel. It isa pure re- iteration of the libel itself, One such statement is enough. The defendant could not get justice from the courts, and therefore took the law into his own hands, to try ifhe could not outmatch his adversary in libels. It is an attempt to set off one alleged libel by another, while the party is endeavoring to get reparation from the Court for the first. Tested by the rules I have given, these parts of their answer, which Ihave pointed out, are plainly irrelevant, and should be striken from the records of the Court. And in closing, allow me to say in reference to the mo- tion by defendant’s counsel yesterday—that if these be stricken out, they hall be allowed toamend the answer— that the defendant ought not to be allowed to amend. He has chosen deliberately, after long, preparation, to put this answer on your files, He should be made to abide by it. I insist that it is offensive, is in violation of the rules ef pleading, and that he must abide by what remains ¢ offensive parts are expunged. you will re- collect that the Court has full power as to the terms on which @¥elevant matter is to be stricken out, What these terms shall be, how they shall affect the party, and his suit, ia matter on which Ibave nothing more to ray. It is for you to vindicate the respect due to your Court and the administration of justice, and to preserve your records from prostitution to unworthy purposes. The Retired Naval List. {From the Warhington Intelligencer, Sept. 14.] A friend who, although in private life and in no wa: connected either with the government or the navy, {s conversant with the subject and well qualified to present correct views respecting it, has favor us with the sub- joined remarks on the recent action of the Naval Board convened under the provisions of the late law of Con- grees, and whose report, as was stated in our paper of Sebi has been approved by the President. We cheerfully lace his remarks before our readers:— jessrs. mons—In your issue of yesterday you pub- lished the summary of the action of the Naval Board, which had been convened in pursuance of the late law of Congress to form a retired list for the navy, which report has been approved by the President, after a very fall and caretul investigation on hls part,’ without making any change whatever. The following is a condensed statement of the action of the Board:— ‘There have been dropped from the rolls of the navyy— ‘Three captains, Six commanders, Nineteen lieutenonts, ‘Twelve passed midshipmen, and Nine masters. There have been placed on the retired list, on ‘‘ fur- lough pay”— Fifteen captains, at $1,250 per annum. ‘Twelve commanders, at $900 do. Forty-nine lieutenants, at $600 do. ‘Two passed midshipmen, at $300 do. ‘Three masters, at $300 do. : ‘There have been placed on the retired list, or ‘‘leave ot absence’? pay— Seventeen captains, at $2,500 per annum. ‘Twenty-one commanders, at $1,800 do. Eighteen lieutenants, at $1,200 do. Fifteen masters, at $600 de. ‘the Board of Officers who were selectel by the Presi- dent to perform their duty was composed of five officers of each of the highest grades, and who were gentlemen of the highest standing and character in their respective rades, and there appears to have been but one opinion, th in and out of the navy—that a more competent and judicious selection could not have been made, all being igh-minded, honorable and intelligent officers, and who justly create the conviction that they have discharged the duty assigned to them to the very best of their un- biassed “judgment, without fear, favor, or affection. From thé personal knowledge which some or all of them must haye possessed of every officer in the navy, and from a full and free access which was afforded them to all the files and archives of the Navy Department, they had the very best opportumty and ability to forma sound and correct judgment upon which to base their action. ‘These remarks are made without a particle of personal feeling in connection with the subject, as the writer is in perfect ignorance, and without even 4 suspicion as toa Single name that may be found upon either of the above sts. Under the above circumstances, the President, after having himself fully examined and studied the report and obtained all possible information, and being con- vinced, as he no doubt was, that there was nothing obvi- ously wrong in its conclusions, has pursued the proper, and indeed the only judicious course, by confirming the report of the Board in full, without making any change. It is very possible he might in some instances have thought differently from the Board either as to extending, curtailing, or changing the respective lists; but, if pan were the fact, he has surrendered his own views in such casce, probably very few in number, to the better oppor- tunities which the Board possessed of forming a correct judgment, and to their more extended knowledge of the personnel of the navy. That there may Le complaints by some of the parties, or their friends, who have been affected by the action of the Board, is to be expected. In such an extended ope- ration of the kind, it would be strange if it were other- wie; but the measure of a retired list, which has al- way: existed in every otherservice, had become one of ne. cevsity for the future well being of the navy. Congress had rigidy limited the number of officers of each grade, and promotion had therefore ceased, except to fill death vacancies and occasional but vary rare re- movais, This was a slow and disheartening process to the Younger, active and enterprising oficers. ‘The mid- shipman had many more tedious years in the steerage than was necessary to quality him asa lieutenant; the latter hada still longer term, and a = rtion of it in idleness and inactivity, before he could hope for the separate command of a ship; and 4 captain's commission was only attainable by a commander when the head wa whitened, and the glow and energy of manhood was ra pidly on the decline or had already departed. Ambition enterprive, love of the serviee, and esprit du corps, were all checked or destroyed, and many of the most active, able, and enterprising junior officers were driven to re- sign their commissions in the hopelessness of tuture dis- tinction of rank ty continuing in the setvice, except after a period of time that would destroy the zost of the acqui- sition and leave them but « few years for the enjoymoat of it. On the list were numerous gallant and veteran officers who had faithfully and honorably served their country, but whom declining years and physical inability rendered unable any lon ger to perform active duty, and who, by being retained on the active list, ptevented the advance- ment of those in the junior ranks who were fully qualified to take es and to render the same gallant and ac ceptable service which their seniors had so ably performed in their unger gerne. For officers thi situated, all will agree with the senti- ment expressed in the excellent letter of the Secretary to the Naval Board, that to be ed on the retired list and to be thus honorabl, from duties which increas- ing years and ini jen rendered them unable any longer to discharge with satisfaction even to themselves, so far from being considered as a alight or a reproach, would Le Justly viewed ax an honorable mark of the rd of their country, which thus makes for them a liberal and generons provi:lon, (fer more so than the retired list of any other country, not even excepting Great Britain, co coliernted for ber Mberality in snch matters.) on which they can pase the remainder of their li comfort and tranqnill’ty. Tam to learn that such is the view taken of it ‘by some of the most distinguished senior officers in the rervice, and I hope generally by all of them, and that in various cases have themselves intimated their wish 10 be placed upon the retired list, ‘All honor and respect to this corps of gallant and hon- orable men, and may the memory of their former services always serve to stimulate to like honorable actions those who now step forward to supply their places! It i+ to be obverved that those of them who ‘argon the third named above list will still receive the samé pay that they ever have done —_ when they were in active service, end by the tenor of the law, they can still be retained for bureau duty and commanders of full pay of active duty. It will be seen by the preceding lists that, in order to fill up the vacancies in the active lists to the number authorized by law, thirty-five commanders will be pro- moted to be captains, seventy-four lieutenants will be henge ore yer ge oe ons buntred and sixty masters in the line of promotion and passed midshi; men will be made lieutenants. é This ie the first time a measure of the kind has been applied to the navy; but the army has been twice sub- jected to a more severe test under the plea of reduction— ‘the first time after the peace of 1815, and again after the Mexican war, when, on the judgment of the President alone, hundreds were dropped from the rolls, wituout the benefit to any of them of a liberal retired list, as in the present case with the navy. ‘The liberality of the provision made by Congress for the officers on the reti list, when com with that of other nations, is shown by the fact that a captain in our naval stations on the service by this law on “furlough pay,” receives nearly as much, ($1,260,) and on ‘leave pay’? grently more ($2,500) retired Ping officer of the Hritie navy where the retired pay of # rear admiral is only sterling ($1,500) per annum, THE PESTILENCE AT NORFOLK AND PORTSMOUTH. Religious Exercises in New York—The Relicf Fund—Accounts of our Correspondents— Fluctuation of the Epidemic, dic., dic. SERMON OF BEV. DR. HAIGHT AT TRINITY CHURCH. A collection was taken up yesterday morning at Trinity church for the aid of the sufferers in Norfolk, and an ap- propriate sermon delivered by Rev. Dr. Haight. The re- verend gentleman took his text from the 13th chapter of the Gospel of St. Luke, the first five verses. The warn- ing, said he, contained in these verses was not for the Jews only, but for us, and for all mankind. Those who suffered from the calamities of this life, were not, accord- to our Divine Redeemer, to be considered the greatest offenders against God’s laws. The sufferings of the pre- sent, he continued, are the consequences of sin, which entered the world with death and its long train of atten- dant ills, Had man not sinned he never would have known suffering, but because of his transgression he suf- fered and will suffer so long as this world shall last. The whole scriptures are full of proofs that suffering is the consequence of sin. The voice of the race attests that man is in trouble because of the violation of God’s laws; for the connection be- tween sin and suffering is one of the most forcible con- victions of the haman heart. It is a truth which men may deny in their prosperity, but which they are com- elled to admit in their adversity. While he would not isparage human science or skill, which did much to alle- iate physical suffering, nor discountenance researches baving that end in view, yet when man, enlightened, educated, thoughtful, prudent man has done all that is possible for him to dé, is the battle-cry to be ‘science, and science forever?’ Are there, then, no garments bathed in blood? has the guant spectre of famine disap- peared? have the locust and the grasshopper taken their final fight? bas the pestilence that walketh in darkness taken its leave? No!” After all the lessons of science— after all the improvements that have been made, there stand the sword and famine, and noisome beast and resilience, and there they will stand while the World en- ures, ready to go forth unresisted on their dreadful mission, whenever the rightful governor of the universe shall see fit to issue his mandate. Now, on every breeze { om the South is borne the plaintive wails of the sick, the groans of the dying, and the sobs, of the widows ‘and the fatherless—‘‘The Lora reigneth—let the people trem- ble.” Yet we are by no means justified, sald the Rev. gentleman in conclusion, in saying that the greatest suf ferers are the greatest sinners, Sufferiog, indeed, springs from sin, but we eannot trace the connection ‘between them, When, therefore, we see an individual or a com- munity smitten by the hand of Providence, let not the thought rise in our mindsx—'‘ How great must be the sin committed!” The reason for the continuance and the greatness of the calamity arehidden in the Divine mind. Think you that those whohave perishes by the sword or the plague of late aro greater sinners than we ? Ob, no, for we shall, according to the words of Christ, unless we repent, ‘all perish alike.” Even now we are warrfed by the suffering of our brethren in Norfolk. The sad history of their woes has touched your hearts, moved your sym- pathies, and awakened the desire to minister to their relief, Let it also lead you to stand more in awe of God’s judgments; and as a proof of our gratitude for having been spared go fur, let a liberal offering of our means be made for their assistance, for so gatherest thou thy- self a good reward in the day of adversity. OUR NORFOLK CORRESPONDENCE. Nor¥ouk, September 14—12 o’elock. The disease appears to be fluctuating. Yesterday, up to the closing of our correspondence, there were but few new cases of fever. Since that time, however, a great many cases have occurred. We are pained to learn that Dr. Upshur, after nobly battling with the disease during its prevalence among us, has himself been stricken down, and is now lying very low, and but little hopes are en- tertained of his recovery. We have lost nearly two thirds of our resident physicians—showing plainly there is no preventive by which we, as individuals, may ward off the approach of the insidious foe. I am pleased to in- form you that Augustus Cook, the able and efficient assistant of our late Mayor, Hunter Woodis, is once more well, and doing service for his afliicted fellow citizens, “Ethan Ailen, master blacksmith in the Gosport Navy Yard, is once more at his post, after a severe attack of fever. The Rev. Mr. Wills, of the Cumberland street Methodist Episcopal Church, is convalescent, There is some talk of a monument to be raised in memory of Hun- ter Woodis, which is an evidence that the feelings of our citizens are of a more cheering nature. Their wants, however, are not diminished. A gentioman, this morn- ing, whose family, (which is quite large,) is down with the'fever, told me he had to beg a meal of victuals, though he had one or two hundred dollars in his pocket. ‘Those who are dying among us die mostly from the want of nurses; the doctorsare almost valuless without them. If there are any philanthropic ones among you, prepared to brave the terrible scourge that is cutting us down in such numbers, let them come; they will meet from us, at least, a grateful reception. ‘The following is a list of those admitted in the Howard Infirmary during the twenty-tour hours ending to-day at 12 o’clock:—Joseph Fiegs, —Kelby, A. D. Victor. Those who have died in the Howard Infirmary durin, the last twenty-four hours:—Augustus Beale, C. Appell, Mrs. Ferguson, Wm. Anderson, John, (slave. ) ‘Those who have been discharged from Howard Infirm- ary during S last! twenty-four hours:—Paul Nitcharde, Sally, (slave. The follow tng is a list of those who have died through- out the city during the twenty-four hours ending to-day at 12 o’cleck:—Child of Mr. Boobee, Master John Bugley, slave of &. Hartshorn, (was dead in’ five minutes frots the time he was taken,) infant of Mrs, William Balla: Riddick, (clerk in’ Harris’ bakery,) William Hall, ‘Mc. Young, (of the firm of Sherwood & Young, commission merehants,) K. Woodward, David Cooke, slave of Wm. §. Mallory, Mrs. Goodrich, Mrs. Willlam Doyle, Eliza Reed, (slave,) child, (name unknown,) daughter of the Rey. Aristides Smith, Julius Pascal, infant, (name un- known,) Sarah Nundin, Mrs, Sylvia, child of Mrs, Lind- say, Jumes Fatherley, slave of Mr. Fletcher, slave of Cap- taln John Manning, slave of T. B. Dixon, child of William Glenn, Mrs. Savage, Lucien Schisanno, dying. ‘The weather continues warm, notwithstanding we had a thunder storm last night. The sky is overcast anda light drizzling rain is falling. Wind’ blowing from N.E. Appearances unfavorable. NoRFOLK. Norrotx, Sept. 11, 1855. last night our city was visited by a severe storm of wind and rain, accompanied with thunder and lightning. ‘The vivid flashes, followed by deafening peals, were ab- solutely terrific, and seemed to shake the entire town; but no perceptible purification of the atmosphere has resulted from the tempest; on the contrary, this morn- ing the air is heavy, damp and oppressive, and most ex- tremely prejudicial to the cases of fever under treat- ment. The number of interments yesterday was twenty- seven, still showing a slight decrease in the mortality, owing more, however, to lack of material than diminu- tion in the intensity of the disease, which continnes pro- portionably fatal and violent as ever. In fact there has never been any general abatement in its violence, as is conclusively shown by the number of deaths among that class of our citizens who were comfortably situated in every respect, and carefully attended while in the com- mencement of the epidemic, The poorer and lower or- ders were its usual victims, who, amid filth, foul air and neglect, could not fuil to fall an easy prey to the yellow monster. In the beginning, as well as throughout the progress of the fever, the proportionate number of mild cases has been about the same. During last night and this morning, up to nalf-past 11 o'clock, the number of deaths was nineteen, I am only able to obtain this result by ascertaining the list of orders for coffins left at the undertaker’s—of whom there are but two at present in the city—and learning the deaths at the hespital. This method I have found, gives a pretty accurate resul a is really the only means of obtaining i it would be impossible to see all the physicians and learn the inten § in the practice of each. The only instances not obtained in this way, are those who are buried io boxes made by their friends; but these now are very rare, not averaging one daily. Amnog the deaths that have occurred since my last letter, are the following:—Julins Sebieano, son of the French Vice Consul; Mr. R. M. C. Young, of the firm of Sherwood & Young, Fletcher Shuster: this is the fourth ath in a most interesting family—bis father, mother and n brother have died, anda sister, Miss Avn E. Sbus- ter, cannot survive many hours; a daughter of the Rev, Aristides Smith ; Richard Woodword, member of the How- ard Association; Sarah Munden; Mre. Sylvia’s child; Mra. Tindeay?s child: Benjamin F. Riddick; Mrs. Smith, at Lam- bert’s Point, about five miles from Norfolk; Mr. Grismal, of Washington Point; James Fatherly; Mrs. Wim, Doyle; Mrs. Savage; a child of David Jones; child of Wm. Green, and nine slaves. There have been four deaths at the city hospital within the last twenty hours, The number of patients there at present is about seventy. I have heard the names of but few new cases, Ami them are H. H. Newsum, C. F. Harwood and three chil- dren of Jas. C. Addington. I learn also that Mra. Currier, wife of our street inspec- tor, whore recovery wna reported some time since, has been taken with a relapse and is exceedingly low. Dr. Upshur continues very sick. I waa pleased to see Father O'Keefe, Catholic priest of this city, out this morningand coking’ com} ively well. This will be gratifying in- telligence to his numerous friends, Mr. Jas. G. White, Thos. Finney, W. W. Wing. ano J. Holmes are convalescent. 1 ‘also the pleasure of taking by the hand, yesterday afternoon, Dr. Spratley, ot Portemouth, whose death was reported in the newspapers a month since, and never contradict@™. It is matter for regret that reporters and_ cot dents should be so careless in this respect, as it must cause much causeless ief among friends at a distance. Errors often occur, I Sout not, from defective manuscript, for which the edi- tore are often blamed, especially in the substitution of Mr. for Mrs., and vice versa. Instances of thik careless- ness have occurred within a day or two, which, for the sake of friends and acquaintances, 1 hereby correct. In the Richmond and Baltimore papers the following per- sone have been Rin reported aa dead, viz: G. W. Camp, Dr. N. C. |, Dalton Wheeler, Mr Richard Hall, Mrs. Leonidas Smith, Rev. Aristides Smith, and So- lomon tt. These are all doing well. ‘The Howard Association have declined sending the children made orphans by the pestilence away from Nor- forlk, In this determination they have acted nobly and wirely, for nearly all have friends or relatives at present absent from the city, and it is both advisable and d fut to keep them here until these sball have returned. The little bereaved ones, thanks to the Association, are comfortably provided for in the lecture room of Christ Chureb, and several ladies have the care of them. The removal project has been abandoned, CARO, THE RELIEF FUND. New Haven........ $1,025 628 Brooklyn Navy Yard 1,500 Philadelphia. ...,.. 24,100 Philadelphia “ «« 2,200 Boston. - 1000 Ghaslestown 4 33590 Washingto . & ug. 350 Norfolkes : 6,000 Cineinnati.; 1,000 Richmond, + 4,500 1,000 New Orleans, + 8,780 1,000 Petersburg, Wa..... 3,600 1,000 Savannah... 2 2,000 1,000 Chicago. + 8,000 1,000 Wilmington, Del..... 1,276 7,000 Newark, N. J : 1}500 Georgetown, 1,400 The Tarf. UNION COURSE, L. I—TROTTING. A trotting match for $1,000, mile heats, best three in five to harness, came off on Thursday last, between two. stallions—one named Montreal, from Delaware; and the otlier John Henry, from New Jersey. The race was wor by Montreal, after five closely contested heats, Montrea! reemed to have the best bottom of the two. The friends of John thought that Montreal had no chance to win be- fore the race, but they wore mistaken, The betting was 100 to 40 on John Henry. After the first heat the odde were on the other, There were not many out to witness the raee, and those who were, were immediately in- crested in the horses. The two stallions are not known © the sporting world, and the time they made was con- sidered good, Hiram Woodruff drove Montreal, and War, en Peabody took ae od John Henry. First Heat.—John Ffenry won the pole; they were head and head eround the upper turn, when Montreal made a skip and broke nearing the quarter pole, losing a length. Time, 41 seconds. Going down the back stretch Montreal was lapped on John’s wheel; but passing the half mile, John got away from him again. Time, 1:24, On the lower turn, Montreal closed on Henry, and they were head and head coming up the homestretch; but Henry broke at the drawgate, and Montreal won the heat by two or three lengths. ‘Time, 2:45. Seca Heat.—John Henry went off with Montreal's head on his collar, but soon afterwards broke, and they were head and head to the quarter pole, in 41 seconds. On the backstretch, John broke, but did not lose much. He broke better this heat than in the other. Montreal sed “he half mile pole a neck ahead. On the lower ‘urn Mentreal got away from Henry, but sw: homestretch they were head and head again. at the draw gate, and no sooner than he caught, Montreal broke and John Henry won the heat by a neck. Time—2:44. Third Heat.—They were now even, both havinga heat. ‘The sorrel led half a dozen le: s around the turn, and to the quarter in 43 seconds. Going down the backstretch Jobn broke, yet passed the half mile pole three or four lengths ahead. bn the lower turn Montreal closed on Henry, and was lapped on his wheel coming on the home- stretch, but broke at the drawgate and again at the dia- tance, and John Henry won the heat by a length. Time— 2:4844. The friends of Henry now became wild with ex- citement, and gave vent to their feelit by long huzzas. They, however, became more wedate afer the fourth and h heats. Hurth Heat.—The sorrel broke twice on the turn, and the brown took the lead, but Henry closed on him. After be caught they both broke at the quarter. The sorrel broke again on the backstretch, and Montreal passed the half mile pole three or four lengths ahead. The sorrel now tired, and was a half a dozen lengths behind on the lower turn, but coming up the homestretch he rallied and closed on the brown. He then broke jin, and Mon- treal won the heat by five or six lengths. Time—2:4634. ‘th Heat.—Montceal now had it all his own way, and was never headed throughout the heat. Whenever the sorrel broke, Mr. Peabody had greut difficulty in pul him toa trot. Montreal won the heat easy. Time—2:47, The following is a summary :— ‘Tuvnspay, Sept. 13,—Match, $1,000; mile heats, best three in five, in harn Hiram Woodruff named br. s. Montreal, 1 2 2 1 1 Warren Peabody named s. s. John Henry 2 1 1 2 2 Time, 2:45—2:44—2:48 4 —2:461¢ A match for $500, mile heats, best three in five, to wagons, came off on Friday afternoon between the two well known trotting mares Lady Franklin and Miller’s Damsel. The race waswon by Lady Franklin. The sor- rel mare looked like a winner for the two first heats, and the betting was in her favor. The roan mare was not up to the mark, either in point of speed or condition, and seemed to trot on three legs-—yet with three legs she wonthe race. She is a gallant little creature, and while she remains with Hiram will bea hard one to beat— whenever she gets the pole, it takes a smart horse to take it away from her. There was consideravle dispute between the drivers, Hiram accused Pfifer of driving foul at the quarter pole in the second mile, and said Pfifer drove him nearly off the track; but the jadges saw nothing of the kind. ‘The attendance was not large. In the previous race between these nags, when Frank- lin beat Miller’s Damsel, an impression was current that Whelan had not acted altogether as he should have done; and that Lady Franklin might have been beaten. The re- sult of the race in the present instance shows that such impression was erroneous. First Heat.—Miller’s Damsel won the pole and led Lady Franklin a couple of lengths around the turn. The roan mare broke at the quarter pole—time, 40 seconds—and egain down the back stretch, Miller’s Damsel trot- ti ng Healy all the hey Lady Franklin broke nea the alf mile pole—time, 1:20. On the lower turn she broke ‘gain, and Miller’s Damsel shot away rapidly from her, swinging on the homestretch half-a-dozen lengths ahead; but coming up the homestretch, Franklin closed on the Damsel, but, broke at the distance stand, and Mil- ler's Damsel won the race by three or four fengths— ime. 2:38, Second Heat.—Miller’s Damsel went away with Franklin lappéd on her wheel. She broke going around the turn, anid yet led to the quarter pole half a length, ia 41 oe. conds. The roan mare broke going down the backstretch, and Biiller’s Damsel —. the half mile a length ahead— time, 1:19. On the lower turn Lady Franklin closed. on Miller’s Damsel, and was lapped on her wheel coming up the homestretch. The roan mare broke at the draw gece, and Miller’s Damsel came in a length ; Third Heat.—Miller’s Damsel led Lady Franklin a half alength around the turn. Both broke at the quarter ole—time, 40 seconds. The roan mare broke.twice jown the backstretch, and Damsel passed the half mile ole three or four lengths ahead, in 1:20. On the lower jurn Franklin closed rapidly, and was lapped on Damsel’s wheel. On the homestretch, Miller’s Damsel made a dou- ble break at the draw gate, ‘and Lady Franklin won the 42: heat by six lengths. Time, 2:423¢. Fourth Heat.—Lady Franklin was half al ahead going around the turn, and to the quarter, in 42 see. Go- ing down the backstretch Franklin was a couple of lengths aliead. and wont to the half mile in 1:20, the lower turn Lady Franklin shot away from Miller's Damsel; but coming up the homestretch the sorrel mare closed on the roan, but again broke at the distance stand, and Lady Franklin won the heat by a neck. Time, 2:423;. Fifth Heat.—They were head and head going around the turn; but Lady Franklin shot away from her at the quar- ter pole—time, 42—and ‘was ‘never headed in the heat. Time, 234244. ‘The following is a summary:— Frinay, Sept. 14—Match’ $500, mile heats, best three in five, to wagons, Yoodruff named r. m. Lady Franklin. D. Pfifer named ch. m. Miller's Damsel. Time, 2:38—2:40—2:424— 2423494316, CENTREVILLE COURSE TO-DAY. Flora Temple, Mac and Chicago Jack trot this after- hoon, mile heats, best three in five in harness, for a purse of $500. ‘ The Late Affray Between the Students and Authorities at Princeton. Princeton, Sept. 15, 1856. TO THE EDITOR OF THE HERALD. I noticed in your edition of yesterday, (14th), a com- munication in regard to the late serious affray between the students of the College and the municipal authori- ties of Princeton. Several of the Philadelphia and New York papers have erroneons reports as to the culpableness of the siudents and townpeople, who are, in the classical lan- gunge of the students, known by the general appellation of “snobs.”’ One journal ascribes the commencement of ‘the affray to the etudents—making them the aggressors. This is not correct. They were the oggrieved and pot the aggressors. ¢ facts of the case are the same as have been stated It has been a custom in Nassan Hall, from time immemorial, to serenade annually the president and professors with tin horns, kettles, frying pans, &c. While in the peaceful tion of this before the do- micil of Professor Stephen Alexander, ad were sud- denly arrniled by a large body of special M. P.’s, armed with clubs and pistols. Without a moment’s warning, they to use their clubs upon the students, The cry of “Nassaw’? was raised, and « t ensued, in which Constable Hulfiesh was stabbed in three places, ‘The students resisted for near an hour the assgulte and finally succeeded in putting to flight the allied forces, who took refuge in Lg ied Martin’s office. The windows and sashes of the yor's office were com- letely Mddled, and the municipal edifice would have been entirely demolished if it had not been for the timely interference of F'rof. Giger, who, possessing more influ- ‘ence over the students than the faculty combined, by his persuasive powers calmed their excited minds, and pre- vented the affair from leading to anything more serious. Le excitement exists among the students and citizens of the town, ‘The field of battle presented a curious picture the Prag aftr the contest, interspersed with broken tin horns, kettles and other im ‘of war. Several students were injured severely. The constable who was stabbed lies in a very critical condition, but hopes of bis recovery are entertained. There have been several minoe shirmishes since, but not Torthy of note. ‘The students still contend that not one of their com- rades ehall be removed from the college grounds, and that if necerea Bown ae all Jersey, the Camden and Amboy included. J Carivat Statistics or ALBaNy.—The whole number of arrests of persona with criminal of- fences, and conveyed fotore magistrates of Al- bany, Guster &e month of ron ied 1855, is 882, viz. :— Aveanlt and , 110; argault with deadly weapon, 3; aesault with f eS eat 1; Hesry, Tbreach of tng 1c, 00; ; embexziems ; , econ e¢, 1; grand larceny, 15; intoxication, fi, miseella neous ‘misdemeanors, 46; petit larceny, $6; robbery, 2 vograncy, 14. Total, 082, al