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

Newspaper of The New York Herald dated September 17, 1855 Page 2
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kfl an iMue olfcrad, which invites us to the examination dtbf Mm of the Bol4U> for the last twenty year*. If thin ffea It* i?UiMd, then the defendant cia> occupy th. Oaurt Mil Jury for months in reading the columns of the HuLtic. Shta la the manner in which the defendant nc?k? to erode Aa exigeneiea of the suit which we bring against Via. It would >wen] that these passages forui parte of one Mnwe , whether that defence is justification or not, we as* hardly apprised, but we are led to suppose that it fc?c. . _ . . Rhe eighth point is in reference to the Hrauin haying, to 1837. published a list of insolvent houses in New York, aad included therein thirteen solvent firms. J Now it appears according to this eighth subdivision of the aniwer, that we. are to try over agdin the Haggerty Md Bennett caw 4r 1837. There 18 nothing in the libel Whlcb polntn to ?ny such period or transaction. We are lardly to have this matter brought up again, having paid the fine then impoeed by the Court. Mr. Fry has uo alalni to net it up an an offset in mitigation of the damages to be awarded to us for the libel which he has perpetrat ed <m us. It so happened that in a list of failures, pro bably embracing hundreds of people, published in good fctth, at a time of great Qnanciul embarrassment, there wan one error discovered, and fur that error the plaintiff was sued and lined. Anil yet this ia gravely toeught forward as a justification of the defen dant in the publication which he lias put forward. Tear Honor may look through these ninety odd to ?as of anwer in vain to find anything responsive to the libels contained in the letter of Sir. Fry. Now, us to No. 9 of the answer. (This point refers to an extract from the Boston Alias, ?a the came subject.] Here we have a specimen of the mode in which ?ley attempt to justify their charges against us of levy hag black mail They find in the Hkkalii a reprint mt an article from the Boston Atlas, and they brliis; it for ward aa evidence agninst us. This, as well as all the ex tracts which I have read as yet, (are confined to the period ?f 1834-7, a most fruitful year for the defendant in this ?as*; a year in which he must have read the llKtuui very attentively, and kept it in his mind or his portfolio ?ver (in<S. Whatever may have been the tone ami eharacte^of the paper at that time, there is no attempt ta ah^jMBt it has nut been since everything which it ?aghtto be. In copying these hostile atlacks the answer ?lieges that "the plaintiff gives a true account of him all," when they were republished merely as specimens of Aa assaults made upon the plaintiff's character and Journal. In no case are the comments given ; but with fee most unblushing effrontery they are put forward us having had their truth acknowledged by the plainttff himself. Defendant's counsel made some remark, to the effect that these extracts were not accompanied by denials of their trath. Mr. Sicklea? Do I understand that you mean to say that these extracts were unaccompanied by comments V Befendant's Counsel ? Unaccompanied by comments Which change the spirit of them. Mr. Pickles ? Oh! that is for the Court to decide. No ??a could say that the comments accompanying these ex tracts do not repel the charges they contain, except the lawyer who professes to see that they are relevant de fences to the libels set forth in the complaint. Now let Bs see what No. 10 is. fThis is another extract from the Illinois Reffistrr re ferring to the same publication of merchants who Called.] Mow this is open to all the objections which apply to the portions of the answer I have already commented an, and is founded on the theory that the defendant can ?eeape the consequences of one libel by printing a mul titude of fresh libels. (Counsel next read the 11th portion of the answer to which objection was made. It was an article publish ed by plan tiff in reference to the decision in the Uuggerty Mae.] Wa have not prosecuted Mr. Fry for anything to which tills is at all relevant. If he had alleged in his letter that we had written this article, and if we had sued fehn for libel in muklng such statement, then he might properly have set this article up. But what has it to do wttn the allegation of our levying tlark lmil on the Managers of theutree in New York? Evidently nothing whatever. [ The twelfth portion of the answer objected to refers to ma article published in the Hkkald on 9th October, 1837, professing to be a solvent list of merchants in N'ow York.] Be (counsel) asked the Court to look at that branch of the answer. Here is a charge. Bald he. that we published a Ust of solvent merchants, for the purpose of coercing those who were solvent to come forward and pay for the tosertion of their names on such list; and yet no solitary Instance is given in which any man paid for being put in the list ? or in which a cent was either asked, given, or veceived for such a purpose. I undertake to say that the re cords of this court could not furnish a more feeble attempt St a plea of justification for libel, and yet it proceeds feom learned counsel v, Uo know full well that it cannot he set up as a plea in this case. It is merely resorted to M a piew of scandal, of which the records should be pvrged, and which ought to expose, and does expose, the person who swore to it to criminal prosecution and pun ishment for malicious libel, and exposes the counsel who Vlgned it to the animadversion of the court, for the law does not allow counsel to use the records of courts for so feaae a purpose. flhe thirteenth point referred to the Fanny Elssler and Chevalier WikotT atTulr.l The defendant comes here and tells us that twelve years una man of the name <.t' Wikoff printed such and such things; and now, in 1855, "I, Edward P. Fry, repeat them." Under the advice of his counsel he spreads be fcre us this false publication, which defendant and his counsel very well know lind been withdrawn and dis avowed by the writer as untrue, and for which the writer made all the apologies and disavowals that an honorable mind could make. And ye; this is rake 1 up and spread forth here as matter justifying the allegations in the de fendant's letter. The defendant says it is pleaded be cause it represented fairly public opinion on the subject. A more slender ami fanciful excuse for a plea of justifici tton in a case of libel, was never invented. fThe fourteenth point of the answer objected to, is in reference to the trial of Robinson for the murder of Helen Jewctt.l We arc accused now or trying to represent Robinson M innocent. Vt?ll if we did so, what thenV The court And jury found him uot guilty, proving that the 11k jlaii> ?a- right. (llie fifteenth point was based upon a statement of Judge Noah in reference to the foregoing. The charge here (said counsel) is specific that we ex tracted from a particular individual sums to the amount ?f $13,000, and by insisting on payment of further hush money, drove him to snicMe. \vii<> is this man? When did we pet the money HOW did we get i''- What was Mr further demand against him Not one averment of feet is given! i'nder viliat circumstances did this nan commit suicide*' Hie publication in the llniiui (re ferred to in the point) can be explained and justiiiod on moral grounds: on grounds consistent with |ood order ?nd the well being of society; and yet it is set up here V> show that we are the enemy of all these interests. This extract which I have read Is the Itusis on which Mr. Vry seeks to niyjjtirt this gro-- libel. What have we hjTt la this defenceVr irst, we have an allegation by the de fendant that a man now dead, i Major Noah.) told hiiu a ?tory which he (Mr. Frv) believed to be true. There U ao averment of the truth of these tacts related by him. Then, secondly, we have a I >ng extract from a now paper nbounciing in denunciation ?< of the personal mod editorial character of the plaintiff, but there is no attempt to aver the truth of these tecte, or their relevancy to this case. The defendant would never be allowed to prove, in an ac tion of this kind, that this story was told him by Major Noah He would never be allowed to give in evidence the article from the Ti m-> and Exminp S'nr, to which he aefsrs, and what excuse can be given for spioadln; on the records of the Court these gratuitous and scandalous assaults upon private character' [Counsel then pas-ed on to the sixteenth point in re Sere ore to a pamphlet entitled "Tlieiafe anl Writings ?r James Gordon Bennett."] Here fsaid he) we hare au extract from ;>ri anonymous look published in 1*44 spread out in this answer, l or what purpose'- To -how that the defendant hitd only re peated what had been published b?l<>ro in a mare vague and general manner. This is exactly a case of one li beller Justifying his libel< on the libel of another, S>mc One might to morrow, cm the ?ame principle, publish this letter of Mr. l'ry's in the Timet or Journal of Com meroe, and defend that act on the ground that Mr. Kry fltad published it before TUi? theory utterly ignore ?very principle of law. The answer g >e* on to give va rious other extracts from this pamphlet. This hired ?eribbler, this anonym >us penny a-liner, only differs from Mr. Fry in the fuct that the former wxs afraid to write over his own signature, while Mr. Fry lu<i the ? udaeity or the courage to append his name to his letter. [The 19th clause of the a n?wer objected to ii in refe to the I/>ndoa Time? making extracts from columns ?l the Hmuld. J This ought to t>e stricken out. not because it is scan dalous, but because it doee not take issue npon anything anaterial in the complaint. Tne charges on that' point are not the material charges in the letter of Mr. Fry, on which cur action is founded. It is palpably irrelevant. [The JOth r taupe of the answer is iu reference' to the effect in Ksrope of tbe publication of the list o< Insolvent tinus n 1&I7.J A mure "rn?plet# answer could not be sngg*wt*?l than that fu ru shes] by Uie Mltal in tku clause to allow Utiy th> .'*t of solvent and Insolvent house* hud l?n <>ut.'i*hed. But th's. however !'. inay explain and justi fy the publication of that li*t, has uothJugto do with Mils i-'.iw, because our merit or dement in that mn't'r can n ^itnc within th.j com. fTl* 21st point rwten to the character of B. El. Revo'l it will hardly be n< essary ior m to observe -o the C^jrt that the character ot Mr. Her oil is no*. ? '?"4* n this an or. W? do net ?ue Mr. i'ry for h.s iib?. on Mr. Revoil, but or his chnrgM agalntt aa,aod therefore all that clause s wholly impertinent, Mn can Irvve no place here. But I des:re to call your .Honor s amotion 1 o iftet four lines at this cUnse. ''a,% 'n "ibstanee that Mr. Bevoil was the ngent of "'V1?* black mail.] Now, under the respon sibility of a tarty called upon to .\nswcr a charge in good tkith, and unter the r<s"j>oo*ibility of the !oc.rn"d coun ?el, as lawyers, knowing that It was an averment of the troth of the natters charged to be libellous, and not nit amplification cf the orginal libel, that they were taund inlaw to plead, we find partiee and counsel coir t.nlng to place this fre <h libel u|hwi your records. There is no attempt to specify an instance in which He veil ever acted Vi an* such capacity as that -barged ? but _ aetead of that only a gross repetition of he were P ccusation. [The 22d point nivs in reference to Mr. Ga'brai'h, *.he ceansel of plaintiff^ Now your Honor, (said counsel <n ref-rence to thi point,) ran there be m?j doubt that it was p^rfip -t'r well known to the defendant and his counsel that the charge liere attempted to be brought against Mr. Galbraith, ? '??pecte.i and honorable practioner of the Oourt, was ?{? I< '"d they not know perfectly well that this matter had nothing whatever to do with the suit 1 IMd Jhey not know that Mr. llennett does not sue Mr. Fry for U'.r.n<7 ? A?d yet this is force.! in, in GrfiBCt unison w h the -pirit ?hi h governs the whole .1^11 V; f^Wy-rite, to ^ra-lfy hatred, mj placing tbeee tratui on? harir>-s against Mr. Oalhraitti ".i"1 : (,furt ^'St means have we in this eiaee to deftnd Mr. (^Ibraith from the,* charges t Your Hener would not allow us bo <U-prov.,th^n b5. au.e they are BOt relevant to tbe issue, th.. U? will nut tolerate ?oeh an attempt to injure the reputation or a third per een, who is not a party to the suit, and who has there fcre, no opportunity to prove the falsity of such state aents as to himseit. H would be a disgrace to the admi ustratien of justice, if any court fhouM permit its re ti? te bt ufltd tor such purpose An atWlA'y who files a scandalous pleading like this, is guilty of a eon tempt of court, and the counsel who should affix hi* name to it, would b? personally liable lor the cost* ?f proceeding* to expunge the scandal. [The 23a point is in reference to the Herald editor &1 on the quashing of the Fry verdict.} When we come to the 8Jd 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. Kven thU clause is an unnece-sary and re dundant averment, and is therefore IrHlmirt in a legal sense, being uoitber in jusuiication aor in mlti Stion. We come then to the twenty-fourth part of e answer, averting that the defendant's "card7' was true and fully warranted by the occasion. This twenty-fourth extract might very well perhaps have been offere 1 aa a portion of the learned counsel's summing up to the jury iu the case; but to find it offered as a de fence is one of the extraordinary circumstances in the case. ?' You libelled me in your paper," says Mr. Fry, "and I will rely upon that as my justification for libelling yon in any newspaper 1 can gain access te." That is the piinciple gravely r> lied upon and put for ward 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 this could be framed. Hut I can understand it on no other hypothesis. The counsel on the other side known full well that the law was never in such a prostrate condition as to allow such a (.lea a-t this to be put forward in a respectable court. The short extract of four or live lines in this i laute is all that we have to enable us to conjecture what portion of the answer is offered in justification and what in mitigation of damages. It is uniformly held that where you plead matter in justification and matter in mitigation the two must bo clearly distinguished from each other; you must furthermore plead facta, not epi thets: you may aver the truth of a libel, but you cannot stop there; you must go on ami set forth the acts and doing? of the party showing lain to be guilty of what is imputed to him; nor is a party allowed to crowd a plead ing to repletion with evidence in suppoit of its aver ments. 'Ihese are elementary principles of pleading that no lawyer can be ignorant of. much lesa 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 notliiug 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 jourualsatid anonymous pamphlets, in one foul mass, and then say, ' Here, we offer that in justification, and ifwe'cannotoffer'it in justification, then we offer it in mitigation o t 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. I also refer to the cases of Graham vj. Stone, (6 Howard, 16); Newman vs. Otto, (4 Sandford, 009) ; Brown vs. Urro, (6 Practice Reports, 370); Newman vs. Hanison, (0 Code Reports, new series, 184); to the opinion of Judge Hand in the case of Carpenter vs. West, (ti Howard's Practice, 53) ; Summers vs. Torrey (5 Page, 84) ; Bush & Prosser, plaintiffs, (Kernan, 300) ; and Bin bee vs. Shaw, (2 Kernau, 07.) Counsel for defendant next took the floor, and argued generally that the answer was quite relevant. Mr. Field asked whether defendant's senior counsel proposed to argue itr The senior counsel for the defendant thought that as he did not propose to address the Court, the argu ment should be considered closed. Judge llosworth did not desire to lay down restrictive rules. If Mr. Field wished te make an argument on be half of the plaintiff he would be at liberty to do so. Defendant's counsel did not expect to make 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 'he 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 in a lump, it is unc libel: then, if you analyse it, it may be subdivided into a series of libels. So far as it relates to distinct and independent matters, there arc several libels. Judge Boswell? There are just as many libels as there are distinct matters involved, and on the proving or dis proving of which the plaintiff will or will not be entitled to recover. I do 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 the whole us a libel in the bulk. If they rely on any particular portion of it as libellous ? the black mailing for instance ? theu our de fence will he shaped on that. Mr. Sickles ? We regard it as one libel. Itefendant'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, nnd cannot be taken out of the case. Mr. 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 ubounds in imputations upon the plaintiff, affecting his character and standing in the community, and tending to bring liim into disrepute. Therefore, considering it synthetically, we regard the whole letter as a libel; and when looking on it anulyticully, we regard it as a multitude of libels. Defendant's counsel then proceeded to argue in general teims 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 DAT. Monday, Sept. 13. ? Mr. Field continued the argument on behalf or the plaintiff. He said:? It la not often that I should advise a cllcnt to moTe to strike out Irrelevant mat ter from a pleading. If an attorney so far forget* himself as to insert in a pleading matter which the law does not allow, 1 think it belter generally to leave the Court to deal with it, and to reject the irrelevant matter on the 1 1 ial. 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 malicc? I think it then the duty cf the other party to apply to the Court to strike out the objeetinnable matter. In this case my client ha-i. I think, acted w isely in making the application, though I regret the hardship which it will impose upon the Court in com pelling it to wade through this mass of heterogt i?om matter, piled up in the answer for no other purpose whatever, as we think, than to gratify ill will against the plaintiff. The libel Rut 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 hi* own hands, gratifying himself by a libel on his part, as gross as wa . ever written. Ho 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. Bonuett wa< 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 ni > ney by threat*? levying black mail, a < it is called. The plaintiff determine 1 to put the libeller to the proof; he brought this action, challenging him to nuke good his charges if he conld. What reply does the defendant make to the challenge? He puts in an answer, under oath, in which there is not a single Instance given except one. and that is given without name or date, uflon the pre ten led a uthority of a person now decease i. Not another instance is pretended. This Is a circumstance Worth re membering. The defendant charges that the plaintiff hu? made it a practice to levy black mail on managers of theatres and others. Being prosecute !, he d'?es not even venture to sav that he believes in 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 to give the plaintiff an opportunity ot refuting the imputati >n. Bat tie putd into hi* answer extracts from the Huuu>, not one of which 1< of later date than 1H..8, with an article from Mr. Noah's paper, of 18-11, and a letter of Mr. Wi koff's, publi. ho 1 lu the RtjniMic in 1844. Whether the*e are relevant to the defence is the iue-tloa now to be <le tided. In order to determine the motion before the Court, four things are necessary First, we ate to see what is the libel complained of, secondly, we are to see what is the attempted answer to it; thirdly, what are the rules of law applicable to such a pleuoing; and, fourthly, we are to try the answer by rules. The libel contaiu ed in Mr. Fry 's letter charges the plaintiff 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 bis character and ruin his business, because lie refused black mall, advertisements, and potting defendant's (the Hkk uji s) aftooki' ou the fr?? list; With receiving Mack mail pruiitH on theatrical advert: -'nv nts amounting to from ft '2,000 to 14), 000 a ye?ir ? Hh publishing for months column" of and detonation: with stating 'lu.t tbr Opera Mouse was th" resort ef gamblers and proMi nle? and wis supported by th*m with faj? y abusing him of swindling; with plb 'Ish tig a 'J'ng statement .hat the ("hll&delphia Opera Ho is* had k'-rs* tp witli Uackgnardng and abusing the 'roquenters o!' *hr "pern with b ring people to slander the performers wltli '?el iitjr him, the Uefetidant. an ape and half- starved music*! advert irer; with his (the p!nio tiff" ? ) l"?ng a vagabond and a Scotch adventurer with Iv lng <ed by h's avar>Jou? and hellish instincts 1? Continue always the system o( extorting money by bis slanders and threats; tha' when he reported to des perate HTorts at delay, as his only reaonree. and succeed ed by aid of lr.wy?r? and the onnlrance of Judge*, that Mr. Noah w?" ready to swear that he extorted 113,000 fr^m one man ar.d drove him to suicide: that he obtained perjured testimony from Revoli; that Strskoab'" testimony was, that plaintiff threatened to finish him, (defendant) because he would not pay him blark mail; that no editor w?i tvi-e enough to cla<s him self. or to be . lassed, with him : thst with his 111 gotten wealth, and an army of lawyers, he was obstructing the ?ourse of justice, in the hope that defendant's witnesses might be cut off bv death; that managers of theatres pay him Urge sums of black mail; and, lastly, thst witneases, like Ttle cowards, dare not give the testimony that would effectually Mast nim. That, sir, Is the libel. Now . let us see the answer. It ?ets t ,rth that the plaintiff, by his courne and conduct as editor, was well known to be a common, notori >ua libeller and Uar. and had eetablianed and built up his paper by liliela and by articles to extort black mall. Ac. that is given without any specification ?f titn#s, of names, of oc casions, and Is but a rejietition of the libel, without any particulars, feeond, that he published In his paper, of himself, his character anl principles, communications ii r porting to com* from oorroeponAents attacking him. bat he published his opinion in Jium 18o7, that four fifths ol the clergy of the country were no better than they ought to bo. I hat hin p%| ? r contaiaed a libidinous effusion published in April 184* that it abounJs in arti cles too disgraceful to soil the records of the court ; that he published the names of aolw-nt and insolvent raer ? bants. and * as indicted for libel i n Mr liaggerty; that Wll.iff published in 184-1 the article >,u 'he TUpwAic oon n rnir^ luia jkfld Faao ,v LL ler, v Lei * m formed ud believe* to b? true; that he called Robinson at one time innocent and at another time ruilty of the murder of Helen Jewett; that Noah publmied against him in 1841, the article in the TCmet And Aming Star , thtt some person published an anonymous pamphlet against him; that be had been Hogged by six persona for his course as editor; that the Ixindon JXituj copied the artij cies of the Hduld ; that defendant had document* from 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 granting a new trial in Fry's case against Ben nett, and that defendant's reason lor publishing this libel was that he could not get satisfaction from the courts, and, in conclusion, the answer states that, 4 'in case said answer, and the facts and circumstances therein set forth, do not amount to a full justification, the defend ant will give them in evidence as mitigating circum stances." ? That is the defence set up, wim a great deal of ampli fication and repetition. Now, let us see what are the rules of pleading applicable to such a case. They are ? 1. That though justification and mitigation are both of them defences ? one total and the other partial ? and may both l>o set up in the same answer, at has beea held by the Court of Appeals in the two cases in Reman (1st, p. I) 5a, and I'd, p. 67), yet tliey must be separately stated, and must refer to causes which they are intended to answer (rule 87); and if not so stated, ull of the an swer not relevant to the first defence must be stricken out as irrelevant. This follows from two reasons: First, that a party shall not be allowed to have an advantage from violating the rule of the Court, and -hall not theiefore be heard to say that he has set forth more than one defence, where he has not separuted them into two : and recondly, that if two defences were to be blended, both should be complete anil everything stated should be relevant to both. And ho the CourtB have ruled. (See 6 Howard Practice Reports 200, '.68 : 9 How. 48, <V45.) 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. 1 his in le 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. ^o if you consider it as a mitigation, and anything be there which, presiding at the trial, you could not ollow to be proted 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. 3. Then comes another rule, by no means the convene of the last : that though you cannot put into an answer anything which you must not prove, you are not at lib erty to put into it everything which you might prove; you must not put in evidence of acts, but you must putin the facts themselves. Whenever, therefore, a defendant inserts in an answer the evidence of a fact which tact should constitute a defence, instead of stating tho fact it. -i If, the statement of the evidence 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 iu a pleading of any kind, must be a fact so material to the cause of action or to the defence, as if that factdropB, some part of the cause of action or defence drops with it. 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 pbiintiff diove him to commit suicide, when instead of doing that, the defendant puts into bis answer a letter from a corres pondent, which, as the learned counsel argued yesterday, was tantamount to a statement of that luct, what may be the result? The case goes to a jury, and no such letter is proved, floes it follow that the defence fails? This shows that it is not an essential issuablo fact whether a I correspondent w rote 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 is the one to be put in issue by the pleading. 6. Repetition is redundancy . A fact once stated in a pleading, must not be repeated. ti. 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 tho libel the defendant had a knowledge of facts tending to make him believe the charge to be truo, and that ho did believe it. (4 Sandford, 070; 9 How. l'rac. Repts. 48; 10 Howard, 83, 128; 1 Kernan, 381; 2 Kernan. 73.) Com mon report of the truth of the fuct 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 in evidence. (8 Wend. t>09; 19 Wend. 296.) Judge Bosworth ? Not in mitigation of damages? Mr. Field ? No sir; not even in mitigation of damages. Nothing can be given in evidence but the two things 1 have stated. Judge Bosworth ? If the defendant pleaded that Mr. So and So ? a man of good standing and c redit ? 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 not true ? would not that be good in evidence in rnitiga Hon? Mr. Field? No, fir. A man wlio circu late- 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, eays to another:?"! understand that my neighbor, A. B.. failed yesterday ? " Jui'ge Boswoi th? But suppose he saya that A. B. did faily Mr. Held? Very well; that is a case --till stronger. But even if he says, "1 understand so uud so," and if the iieiti n informed repeat the information and is sued for libel, he cannot give in evidence in mitigation of damages that he was told by sucli an one t hit his neighbor had fail ed. llie authorities are very carefully considered; what is admissible in evidence as mitigation, and what is not, is well settled. Reports cannot be given in evidence. Judge Boswortli? 1 supposed that was so; but I also supposed, till now, that information repeated as such could be given in evidence ? I must confers that 1 cannot see the reason why, as a matter of common sense, it' I tell you in confidence that a third person wa< caught last night in company with burglars, breaking into my house, and if you repeat my statement and are sued for it, I say 1 do not see why, as a matter of common sense, you should not bo allowed to show in mitigation that ypu hud been told so by me. It seems to me that when w'e come to the question of malice, such proof ought to be allow ed to show that there was no malice. Mr. Field? It might at first sight appear so; kut 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- possible for the truth of the information if he repeats it. Judge Boswortli? I also supposed that it wa- not enough of Itself to prove that a particular person said so and so, but that you must prove that a man of candor and character ha- made the statement, a.s preliminary to giving it to the jury. Mr. Held? It is very true that the fact of having th? information qualifies the mot lie of a person in making the statement. But the courts have rejected it for the reason I have stated. To admit the evidence would prac tically depiive tie partv libelled of a remedy, because, if you ?'ue one he may say he got the statement from another; and when you sue that other, he would refer you to a third, a;id so on till the party libelled could get no satisfaction at all. But whatever may be the reason of the rule, the rule it?elf l- stated with great distinctness in a late lu the Court of Appeals. '-Assuming, then." says Judge Set den, in Bu.-h against Proper, (1 Reman, CGO.) "wliat caunot well be denied, that affirmative proof of m.tlioe may be received to aggravate the damages and enhance the verdict, in rases where no such proof is neoe>aary to maintain the action, it inevitably follows that if the de fendant ran show tliut lie was not actuated by any mali cious motive, he will thereby mitigate the damage*; and that he must be peirn tted to give evidence for that pur pose. It is clear, therefore, that the defendant has a light to prove the absence of malice In mitigation of the verdict, and to do this, it is of course indispensable 'o prove that he believed, and had some reason to believe, the charge to be true when it was ma le. 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 intoimalion ftoui other persons as induced him to believe the cbargos to be true: the other, by showing the existence of facts aud circum stance* within his knowledge calculated to produce such a belief. Repeated efforts hare been made by defendants to at ail themselves oi the furwr of tiiexe modes. The general doctrine being concealed that a defendant had a light to repel malice for the purpoee of mitigating the damages, there seems plausibility at least in the posi tion that he should be permitted to show that he had been led into an honest belief of the truth of the charge by the information he had received. There has b?en much fluctuation upon this question in the RnglUh court*. Hut in tliis country tin- evidence has been re C- etnd, for, as it appears to nie, the soun<lust reason". It is Is ? a long eettl. d in this -t-ite and in Massachusetts, a? well as ru'*t of the '-let**, that although evi dence i admissible to prove <h?- general character of th" pit ntiff to te bad, yet that no u -li report* or rumors, uot amounting to proof of general character, nor infor mntioi) oltau.mi oy th"" d*leo<ian' rrnm o' h/\r i cs t?J the truth of the charge, unless tc-oirptcie 1 by proof that such information ia tr-ie, '?an be received for the purpo*<; of rebutting the pres imptlnn of mali-e. This neoMiarily reduces the defendant to prool of beta and circumstan ces known to hiir a t the 1 me of the -hr rg?, h?\ ing a tendency to Indti*" a belief of it* truth, at 'iie only menns of showing a want of mali'e. ' Trying the anew V If th"w rules, K?fl bt found that eve ry i ne of them is violated. Tlie first passage in the answer obje<-t"d to is. that the plaintiff wus a well Known libeller and liar, and has bul't up bis paper by libels and blcck mail. The objection to this passage la two fold; Most of itU a new libel, having no connection with the o'.d the lest is but a repetition of the libel for which the de fen < lan t uaufd. Trie so'ond passage objected to is, that plaintiff jmrnTshed In his paper correspondence reflecting on his own charactrr and principles. It la 7cry c;<sy to s< e 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 damage-.. ii intro duced :vs evidence It is not evidence tending to make out a fact oi circumstance known to the defendant, which led him to make the charge. The neit passage is thit !n which the article ii published reflecting on four-fitth- of -be OHig< of th# city, !fjes that tend to justification or to udtigation of this libei 1 Another pan objected to U that plain iff vuUlishcd the naniesot failing merchants in New \ oik. V hat il he ?liuf It do**! not prove that he ? started mow y from fnem. Also, that he was indicted for one libel ami fme<l. and paid the fine. That has not the remote connection with *he iibel for which this ac tion is br?.i ht. Then, it ia stated that plair.*..n publish^-d a list of solvent houses. There are establishments in this clly whose bu sinrss It is tc furnish nfttnaatioQ to merchants in regard to the clrcuins'iHice- ' their customers. But is that a rea son ?h) on? should l:hel tbe persons conducting -u.'h I establishment*? WikolTs publication is spread on th" | tecordi as a defi ne*!"- t/i- it to 4p with Uua cast t I If it were offered in evidence on the trial it would be re jected as noon m offered. Best it in alleged that plaintiff pronounced Robinson guilty at one time, and innocent at another. What doee that prove, except the fluctuation of public opinion? There was the tame 0 actuation of opinion in regard to the guilt or innoceaoe of Webster as to Ihe murder of f'arkman. The next, in the article of M. M. Noah. The name remark with which I have disposed of WikofTs letter applies to thin. Next comes the anonymous pamphlet. Surely not even the defendant's counsel will venture to tay that could be received in evidence. I come now to something which I would rather have avoided, but I cannot do to in justioe to a gentleman who is unjustly, malignantly and wickedly dragged into thia controversy. I apeak of the charge against Mr. Galbraith, contained in the answer. I appeal to your Honor as a high magistrate administering Justice in tbis cause, whether it is proper ? whether it is just ? whether it Is professional ? for counsel to put upon the records of the Court such a charge as this, in s such a controversy, upon the miserable pretence that it is, or maybe, relevant to some question in the trial. Why, sir, in th? first place, it does not go at all to make out tho allegation in the libel, that Mr. Bennett was as sisted not only by some of the most resectable members of the profession, but by a " Tombs pettifogger." There is no pretence tliat Mr. Galbraith ever had anything to do with practice at the Tombs. The pretence is, that he made an affidavit in another matter, which ailidavit is al leged to be false. Mr. Ualbraitb is justly indignant at chmgo, because he has no opportunity, and can have none in this suit, to prove tike charge malignant and false. And 1 submit to you, that not only idbould 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 it l records. Mr. (Jalbi uith is not a 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 ftre professionally engaged/ Is not only the cli ent, but the counsel also, to be at the mercy of these libel lers V Is a party in a libel suit to be deprived of the as signee of counsel, or is be to obtain it only at the risk of being insulted and calumniated* Again: Ihe comments of the plaintiff on the decision of of the Court in the case of Fry vs. Bennett, are inserted in this answer at length from the iiKRAii). The^e com ments are all respectful; and whatever objection the de fendant may have to them, they have no relevancy to the defence of tbis libel. Lastly, sir, we wish you to strike out that part wherein the defendant reiterates his motives for publishing this libel. It is a pure re iteration of the libel Itself. One such statement is enough. The defendant could not get justice from the courts, and therefore took tho law into his own hands, to try if ho 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 bv the rules I have given, these parts of their answer, which I have pointed oat, 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 shall be allowed toamend the answer ? that the defendant ought not to be allowed to amend. He lias 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 ?r pleading, and that he must abide by what remains of it after U>e offensive parts are expunged. You will re collect that the Court has full power as to the terms on which fetelevant matter is to be stricken out. What these teims shall be, how they shall affect the party, and this suit, is a matter on which 1 have nothing more to say. It is for you to vindicate the respect dne to your Court and the administration of justice, and to preserve your records from prostitution to unworthy purposes. The Retired Naval Ll<t. (From the Washington Intelligencer, Sept. 14.] A friend who, although in private life and in no way connected either with the government or the navy, in conversant with the subject and well qualified to present correct views respecting it, has favored us with the sub joined remarks on the recent action of the Naval Board convened under the provisions of the late law of Con gress, and whose report, as was stated in our paper of yesterday, lias been approved by the President. Wo chccrfuily place his remarks before onr readers:? Messrs. Editors ? 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 nary, which report has been approved by the President, after a very full and caretul investigation on his 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 navy? Three captains, Six commanders, Nineteen lieutenants, Twelve passed midshipmen, and Nine masters. There have been placed on the retired list, on " fur lough pay"? Fifteen captains, at $1,'J60 per annum. Twelve commanders, at $900 do. Forty-nine lieutenants, at $?I00 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,S00 per annum. Twenty-one commanders, at $1,800 do. Hghteen lieutenants, at $1,?00 do. 1 litem masters, at $f>00 d?. Ihe Board of Officers who were selected by the Presi dent to perform their duty was composed of five officers of each of theliiphest giadcs. and who w ere gentlemen of llie highest standing and character in their respective grades, and there appears to have been but one opinion, both in and out of the navy? that a more competent and ilidicious selection could uot have been ma te, all being ligli minded, honorable and intelligent officers, and wuo justly create the conviction that tliey have discharge') the dut\ assigned to them to the very best of their un biassed "judgment, without fear, favor, or affection. From the personal knowledge which some or all of them amrt have posscs.-od ot 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 VtfJ liest opportunity and ability to tonn a "sound and correct judgment upon which to ba<e their action. 'ihese remarks are made without a particle of personal feeling in connection with the subject, as the writer is in perfect ignorance, and without even a suspicion as too single name that may be found upon either of the above lists. Under the above circumstances, the President, alter having himself fully examined and studied the report and obtained all jx ssible information, and being con vinced, as he no doubt was, that there was nothing obvi ously v rong in it* conclusions, has pursue 1 the proper, and indeed the only judicious course, by confirming the (?port of tlio 1 1?.. -mi in full, without making any change. It is very possible he might in some instances hive thought differently from the Board either as to extending, curtailing, or changing the res|?e<'tive lists: but, if such weie the fact, he has surrendered his own views in such eases, probably very few in number, to the better oppor tunities which the Board possessed of firming a correct judpnent. and to their more extended knowledge of the pern tmel of the navy. That there may be 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 otht r wi-e: but the measure of a retired list, which hn al way- exi.-ted in o\ cry otherserviee, hud become one of nc oerslty for the future well being of the navy. Congress had rigidiy limited the number of officers of each grade, and promotion had therefore ceased, except to till death vacancies and occasional but vary rare re moval'-, This was a slow and disheartening process to the younger, active and enterprising officers. The mid shipman had many more tedious years in the steer ige than was uece->?ry to quality him a a lieutenant; the latter had a "till longer term, and a large portion of it In idleness and inactivity, befoi e he could hope for the separate- command ot a shjp; and a captain's commi i"n was only attainable bv a commander when the head Wa whitened, and the glow aal energy of manhood wa ? ra. pidly on the decline or had already departed. Anib.tloa interpri e. love of the serviee. and afrit <ii i corp.', v ere all checked or destroyed and many of the most active, able, and enterpiKing junior officer- were driven to re sign their com mi -sious in the hopelc- ->nes- of future dis tinction of rank toy continuing in the service, except after a period of time that w ould destroy the lost of the ac i ui sit.ou and leave them but a few veiir< for the en joy m ut 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 unabl* any longer to perform active duty, and who. by being retained on the active list, prevented the advance ment ot those In the junior ranks who were fully ^ualifie ! to fake the place and to rerder the same gallant and ac oeptable service which their seniors had so abl v performed in their younger vera*. For officers thiW situated, all will agree with the senti ment expressed in the excellent letter of the Secretary to the Naval Board, that to be placed on the retired list and to be thus honorably relieved from duties which increos lug years and infirmities rendered theni unable any longer to discharge Willi jit infliction even to thoui'.eU !?*. M for from being considered as a alight or a reproach, would be Justly viewed a an honorable mark of the regard t/ their country which thus mnk?? for them n liberaland generon? proviso?, (far more so than the retired list of any oth"r country, not even excepting Ureat Britain, -o celebrated for her liberality In stich matters ) on which they can pane the rema'nder of their live > in comfort and tranquility. 1 am pleaaej to learn tliat ?ncli is the view taken of it by s.ime of the meet distinguished senior officers in the :etvke, and I hope generally by all of them, and that In various ?a*es they have themselves intimated their wish to be placed upon the retired list. All honor and respect to this corps of gallant and hon orable men, and may the memoir of their former ?ervic?w * Iways serve to stimulate to like honorable actions thoe who now step forward to supply their places ! It I- to be observed that those of them who ara on the third named above list will still receive the sarnf pay that they ever have di ne except when they were in active service, snd by the tenor of the law, they can still be retained for bureau duty and commanders of naval stations on the 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 a ut homed by law, thirty five commanders will be pro moted to be captains, seventy-four lieutenants will be promoted to be commanders, and one hundred and sixty masters in the line of promotion and passed midship men will 1>e made lieutenants. This Is the first time a measure of the kind has been applied to tie navy; but the army ha> been twice sub ject! d to a more severe test under the plea of reduction? the first time after the peace of 1816 and again after the Mixican war. when, on the judgment of the President alene, hundreds were dropped from the rolls, wituout the benefit to any of tliein of a liberal retired lint, as in the prefent case with the navy. The liberality of the provision made by Congress for the officers on the retired list, when compared with that of other nations, Is shown by the fact that a captain In our service by this law on "farlough pay,-' receives nearly aa much, f$l.'.'50,) and on " leave pay'' grenily more (f'J.MO) than a retired |flag officer of the Ttrltiah nary, nhere the retired pay of a xeai aiawsl is vol f sUriirg if! jOO) per nuouffi. THE PESTILENCE AT NORFOLK AND PORTSMOUTH. Religion* Eitrchwi in Hew York? The Relief Fund ? Account* of o?ur Correspondent*? Fluctuation of the Epidemic, Ac,, Ac. SERMON OF REV. DR. HAIOHT AT TRINITY CHURCH. A collection was taken op 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 8t. Lake, the first five versos. The warn ing, Baid he, contained in these verses was not for the Jews only, but for us, and for all mankind. Those who snffered from the calamities of this life, were not, accord ing 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 ful 1 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 moat forcible con victions of the human heart. It is a truth which men may deny in their prosperity, but which they are com elled to admit in their adversity. While lie would not isparage human science or skill, which did much toalle iate physical suffering, nor dlscountcnance researches paving that end in view, yet when man, enlightened, educated, thoughtful, prudent man has done all that is possible for him to do, is the battle-cry to bo "seitfneo, and science forever?" Are there, then, no garments bathed in blood ? has the guant spectre of famine disap peared t have the locust and the grasshopper taken their fir>al (light? has the pestilence that walketh in darkness taken its leave "t 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 pestilence, and there they will stand while the World en dures, 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 f 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 Lord reigneth ? let the people trem tile." Vet we are by no means justified, said the Rev. gentleman in conclusion, in saying that the greatest suf ferers are the greatest sinners. Suffering, lndoed, springs from sin, but we trace the connection between them. When, theiefoio, we see an individual or a com munity smitten by the hand of Providence, let not the thought rise in our minds?" How great must be the sin coirinitted!" The reason fW the continuance and the greatness'of the calamity areliidden in the Divine mind . Think you that those who have perishe l by the sword or the plugue of late are greater sinners than we ? Oh, no, for we shall, according to the words of Christ, unless we repent, "all perish alike." Even now we are wurrfbd by the suffering of our brethren in Norfolk. The sad history of their woes has touched your hearts, moved your sym pathies, ami awakened the desire to minister to their relief. l et it also lead you to stand more in awe of God's judgments; and as a proof of our gratitude for having been spared so liir, let a liberal ottering of our means be made for their assistance, for so gatherest thou thy self a good reward in the day of adversity. OCR NORFOLK CORRESPONDENCE. Norfolk, September 14 ? 12 o'clock. The disease appears to be fluctuating. Yesterday, up to the closing of our correspondence, there were but few new cases of fever. Since tluit time, however, a great many cases have occurred. Wc are pained to learn tliat 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 allllcted fellow citizens. Ethan Allen, master blacksmith in the Gosport Navy Yard, is once more at his post, after a severe attack of fever. The Rev. Mr. Wilis, 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 tliat the feelings of our citizens are of a more checking nature. Their wants, however, are not diminished. _ A gcntlaman, this morn ing, whose family, (which is quite largo,) is down with the fever, told mc 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 doctors are almost valule <s 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 leust, a grateful reception. The following is a list of those admitted in the Howard Infirmary during the twenty-tour hours cudlng to-day at 12 o'clock: ? Joseph Plan, ? Kelhy, A. D. Victor. Those who have died in the Howard Infirmary during the last twenty-four hours: ? Augustus Ifc-ale, C. Appell, Mrs. Ferguson, Wm. Anderson. John, (slave ) I hose who have been discharged from Howard Infirm ary during the lastj twenty-four hours:? l'aul Nitcharde, Sally, (slave.) The following is a list of those who have died through out the city during the twenty -four hours ending to-day at 12 o'tUck: ? Child of Mr. Booboe, Master John Bigley, slave of P. Hartshorn, (was dead in five minutes from the time he was taken,) infant of Mrs. William Ballance, ? Rlddlck. (clerk in Harris' bakery,) William Hall, Mr. Young. (of the firm of Sherwood & Young, commission merchants,) K. Woodward, David Cooke, slave of Wm. S. Mallory, Mrs. Goodrich, Mr*. William Doyle, Eli/Ji Heed, (slave.) child, (name unknown,) daughter of tlio 1'ev. >ristldes Smith. Julius Pascal. infant, (name un known,) Sarah Nundin. Mrs. Sylvia, child of Mrs. Lind say, James Eatherley. slave of Mr. Fletcher, slave of Cap tain John Manning, slave of T. B. Dixon, child of William Glenn. Mrs. Savage. Lucien Schisanno, dying. The weather continues waim. notwithstanding we had a tlundrr storm last night. The sky is overcast and a light drizzling rain is falling. Wind blowing from N.E. Appearances unfavorable. NORFOLK. Noarouc, Sept. 11, 1855. I-ast night our city wa> vUited by a severe storm of wind and rain, accompanied with thunder and lightning. The vivid flashes, followed by dcafoning 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 casei ot fever under treat ment. The number of interments ye-terday was twenty seven, Mill showing a slight decrease in the mortality, owing more, however, to lack of material than diminu tion in the intensity of the disease, which continue-1 pro lan tlonably fatal and violent as ever. In fact there has never been any general abatement in Its violence, as is conclu-ively shown by the number of deaths among that c'ass ot our citi/en^ who were comtortably situated in every ro?pect, and eare'ully attended while in the com mencement of the epidemic. The poorer and lower or ders weie its nsual victims, who, amid filth, foul air and neglect, ould not fuil to fall an easy prey to the yellow mon?ter. In the beginning, as well as throughout the progiess of the fever, the proportionate number of mild cases has been about the ??uine. luring la't night and thi- morning, opto half-past 11 o'clock, the number of deaths ?u< nineteen. I am i nly able to obtain this result by ascertaining the list of orders for coBins left at the undertaker's? of whom there are but two at present In the city ? ami learning the deaths at the haspital. Tills metlioi 1 have found, gives a pretty accurate remit, and is really the only means of obtaining it. as it would be impossible to see all the phvsh iati? an 1 learn the mottalitv in the practice ot each itie only instances not obtained in this way, are those who are buried In boxes made by their fi lends; hut the-e now are very rare, noi averaging one dailv. Amnog the death* that have occurred c.inee mv list leeier. ate the fbllowing ? Jul ins ?biano, -on of the French Vice Consul, Mr. H. M. ('. Young, ot the Arm ot Sherwood A Young Heteher Shn?t?r this in the fourth death in a most iutTc'tlng family? his father, mother and n brother have died, and a ?lster, Mis? Aon F. Fbus ter, cannot survive many hour*; a daughter of the Rev Aristldes ^mltli Richard Woodwrrd, member o' the How ard Asaoclatlcn ; "nrab Munden Mre. Sylvia's child: Mra. Mrdsay's child ; Benjamin F. Riddlek; Mrs. Smith, at lam bert's Point, about five miles from Norfolk ; Mr. (iri*raal, of Washington Point: James Fatherly; Mrs. Wm. 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 hut few new Among them are H. H. Newsum, C. F. Harwood and three chil dren of Ja*. C. Addington. I lenrn also that Mrs Currier, wife of our street inspec tor, whoee recovery wan reported some time since, has been taken with a re la pee and Is exceedingly low. Dr. Ipihnr ci ntinnes very sick. I was pleased to see Father ti'Feefr, Catholic priest of this city, out this morningand ooking corrparatively well. This will be gratifying In telligence to his numerous friends. Mr. Jas. G. White, Tiros. Hnney, W. W. Wing a no J. Ill Imes are convalescent. I had also the pleasure of taking by the hand, yesterday afternoon, Dr. Sprat ley ot I'oitemouth. whose death was reported in the newspapers i, month since. and never contradict*. It i- matter for regret that reporters and correspondents should be so CHtelcM in this respect, as it must cause much causeless gilef among ft lends at a distance. Errors often occur, I doubt not. from defective manuscript, for which the edi tors are often blamed, especially in the substitution of Mr. for Mrs , and rice t mm. Instances of this careless ness have occurred within a day or two, which, for the sake of friends and acquaintances, I hereby correct. In the Richmond and Baltimore papers the foil* 'wing per sons hate been falsely reported as dead, vi*.: u, W. Camp, Dr. N. C. Whitehead, Helton Wheeler, Mr Richard Hall. Mrs. leonid** Smith. Kev. Arls tides bmith, and So lomon Spratt. These are all doing well. The Howard Association have declined sending the children made orphans by tne pestilence away from Nor fi rlk. In this determination they have acted nobly and wisely, for nearly all have friends or relative* at present absent from the city, and it is both advisable and merci ful to keep them here until these aheil have returne.'.. lbe little bejeeved one ?. iheaka to ibe Ai.?oci?tion, are comfortably provided for in the lecture room of Christ Church, and several ladies have the care of them. The removal project has been abandoned. CARO. TBS RKI-IEK FUND. New York $24,t>78 New Haven $1,025 Baltimore 28,?i$ Brooklyn Navy Yard 1,600 Philadelphia 24,1'K) Philadelphia ?' 2,200 Boston 7,tKK? (harleatown " 1,603 Washington 8,441 1 ittsburg 1,340 Norfolk 6,000 Cincinnati 1,009 Richmond 4,600 ltaleigh, N. C 1,000 New Orleans 3,780 I.ynchburg, Va 1,000 Petersburg, \ia 3,f>00 Augusta, Ga 1,000 Fsvansiih 2,000 Mobile... ......... . 1,000 Chicago 3,0u0 Sulphur Springs, Va. 1,000 Wilmington, Del.... 1,278 Other sources 7,000 Newark, N.J 1,600 ? ? ? Georgetown, D. C... 1,400 Total .$137,488 The Turf. UNION COURHK, L. I. ? TROTTING. A trotting match for (1,000, mile heats, beat three in five to harness, came off on Thursday last, between two stallions? one named Montreal, from Delaware; and the other John Henry, from New Jersey. The race wa? won by Montreal, after Ave closely contested heats. Montreal i-eemed to have the bent bottom of the two. Tlie fr iends of John thought that Montroal had no chance to win be fore the race, but they woie 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 witnesa the race, and those who were, were immediately in crested in the horses. The two stallions are not known o the sporting world, and the time they made was con i idered good. Hiram Woodruff drove Montreal aud War. en l'eabody took charge of John Henry. / irft Ileal.? John fffliry won the pole; they were h^ad and head around the upper turn, when Moutreal 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, 1:21. 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, 'lime, 2:45. Imnd Heat ? John Henry went off with Montreal'* head on his collar, but soon afterwards broke, and they were head nud head to the quarter pole, in 41 seconds. On the backstretch, John broke, but did not los? much. He broke better this heat than in the other. Montreal passed be half mile polo a neck ahead. On the lower turn Mentreal got away from Henry, but swinging on the homestretch they were head and head again. John broke 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 having a heat. The sorrel led half a dozen lengths around the turn, and to the quarter in 43 seconds. Going down the bask stretch John broke, yet passed the half mile pole three or four lengths ahead. On 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 dis tance, and John Henry won the heat by a length. Time? 2:4? . The friends of Henry now became wild with ex citement, and gave vent to their feelings by long huzzas. They, however, became mere sedate atter the fourth and fifth heats. Haiti h Ileal.? 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 apain on the backstretch, and Montreal passed the half mile pole three or four lengths ahead. The sorrel now tired, and waB 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 again, and Mon treal won the heat by five or si* lengths. Time? 2:48>4 f\)th Ileal. ? Montreal now had It all his own way. and was never headed throughout the hi'a'. Whenever the sorrel broke, Mr. l'eabody had great difficulty in pulling htm to u trot. Montreal won the hoat easy. Time? 2:4*. The following Is a summary:? TiiritfinAY, Sept. 13. ? Match, $1,000; mile heats, best three in five, in harness. Hirum Woodruff named br. s. Montreal.. 12 2 11 Warren I'enbodv named s. s. John Henry 2 112 2 Time, 2:46? 2:44? 2 :48>i? 2:48.5*? 2:47. A match for $600, mile heats, best three In five, to wagons, cume off on Friday afternoon between the twe well known trotting mares Lady Franklin and Miller'* Damsel. The race was won by Lady Franklin. The sor rel mure looked like a winner for the two drat heats, and the betting was in her luvor. 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 won the race. She is a gallant little creature, and while she remains with Hiram will be a hard one to beat whenever she gets the pole, It takes a smart horse to take it uway from her. There was considerable dispute between the drivers. Hiram accused Pfifer of driving foul at the quarter pole in the second mile, and said F lift r drove him nearly off the track; but the judges 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 hud not acted altogether as he should have done; and that I?dy Franklin might have been beaten. The re sult of the race in the present instance shows that such impression was erroneous. H irtt Ileal ? Miller's Dnmsel won the pole ami led Lady Franklin a couple of lengths around the turn. The roan mare broke at the quarter pole? time, 40 second*? and .-pain down the back stretch. Miller's Damsel trot ting nicely all the way. I.udy Franklin broke nearing the all mile ]>ole ? time, 1:20. On the lower turn she broke ' g?ln, and Miller's Damsel shot away rapidly l'rom 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 lengths?* time. 2:r>8. Second Beat.? Miller's Damsel went away with Franklin lapped on lier wheel, t-lie broke going around the turn, and yet led to the quarter pole half a length, in 41 se conds. The roan marc broke going down the backstretch, and Miller's Itamsel pa.- sed the half mile a length ahead time. 1:19. On the lower turn Lady Franklin closed oo Miller's Damsel, and was lapped on her wheel coming up the homestretch. The rcan mare broke at the draw gate, and Miller's Damsel came in a length ahead? time. 2:40. Third Heat ? Miller's Damsel led liidy Franklin a half a length around the turn. Both broke at the quarter pole ? time, 40 -eennds. The roan mare brokeutwice going down the buckstretch, and Damsel passed tie half mile pole three or four length- ahead, in 1:20. On the lower turn Franklin closed rapidly, and was lapped on Damsel's wheel. On the homestretch, Miller's Itamsel made a dou ble break at the draw gate, and I.a<iy Franklin won the heat by six lengths, lime, 2:42%. fbtnlh Hut. ? I*dy Franklin was half a length ahead going around the tarn, and t<> the quarter, in 42 sec. Go ing down the barkstretcli Franklin was a couple of lengths ahead, and want to the half mile in 1:20. On the lower turn lady Franklin shot away from Miller'* I>amael; but coming up the homestretch the -orrel mare closed on the roan, but again broke at the distance stand, and Lady Franklin won the heat by a neck. Time. 2:42%. Fifth Ileal. ? Tl.ey were head and head going around the turn: but I-ady 1'ianklin shot away from her at the quar ter poll ?time. 42 ? aud was never headed in the heat. Time, 2:42%. The following Is a summary: ? Friday, Sept. 1-1? Mutch $500, mile heats, bcit three in five, to wagons. H. Woodruff named r. m. Ijidy Franklin 2 2 I 1 1 D. I'fifer named ch. m. Miller's Damsel 112 2 2 Time, S-^S? 2:40? 2:42%? 2:42%? 2:42%. CENTRF.VILLE doURSE TO DAY. Flora Temple. Mac and Chicago Jack trot this after noon, mile heats, best three in five in harness, for a purse of $500. The Late Affray Between (he Stndenta and Authorities at Princeton. Paijtmos, Sept. 15, 1846. 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 l'rinreton. Several of the Philadelphia and New York papers hove erroneous reports as to the cnlpablenes* of the Fludmts and townpeople, who are, in the classic lan gnage of the students, known by the general appellation of "snobs." One Journal ascribe* the commencement <M the affray to the tt<id*nts? mak 'ng them the aggressors This la not correct. They were the aggrieved and not the aggressors. lhe facts of the "Aie are the same as hare l?en stated Wore. It has been a cua'om in Nassau Hall, from time immemorial, to serenade annna'Jy the president and prof(~eors with tin horns, kettles, frying pans, Ac. Hhile In the peaceful prosecution or this before the do mleil of Professor Stephen Alexander, they were sud denly shaded by a large body of special M. P.'s, armed with clubs and pistols. Without a moment's warning, they began to use their clubs upon the students. The cry of "Nassau" was raised, and a general fight ensued, in which Constable Hnlflesh was stabbed In three places. The students resisted for near an honr the assaults. ? nd finally succeeded In putting to flight the allied forces, who took refuge In Mayor Martin'* office. The ulndows and sashes of the Mayor'a office were com pletely rtadlcd, and the municipal edifice would hare been entirely demolished if it bad not been for the timely Interference of l'rof. t.iger, who, possessing more influ ence over the students than the faculty combined, by hie persuasive powers calmed their excited minds, and pre vented the affair from leading to any tiling more serious. Great excitement (lists among the students and eilixeiu ( f the town. 011? field of battle presented a curious picture the morning alter the contest, Interspersed with broken tin horns, kettles and other implemeflU of war. Several students were injured severely. The constable who was stabbed lies in a very critical condition, but hope* of bis recovery are entertained. Theie have been several minor si irmishes since, but not worthy of note. The students still contend that not one of their com ? ades shiill be remM ed from (he college grounds, and that if necessary they will fight aU Jersey, the Camden and Am lx>y Ilallroad included. JlfflCI. Criminal Statistics or Albahv.? Tht whole number of arreets of persons charged with criminal of leni ee, and conveyed before the police magistrates of Al beny, during the month of August, IBM, Is 3S2. via. :? Assault andoaltery, 1 10 assault with deadly weapon. 3; assault with intent to hill. 1; bigamy. l;breaehof the leuice. <0; burglary 2; ?mbeizlem>-nt, 1, forgery, aecon 1 ?legne, 1: grand larceny, 1ft intoxication, 81, miseella neour misdemeanors, 4fl, petit Utcfcy robbery, 2 vagrancy. 14. Tvi*1

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