the plaintiff may enter a nolle prosequi as to the count or counts improperly joined.' Where there were two counts upon the same words, but published at different times, a general verdict for the plaintiff was upheld. A general verdict on five counts held not responsive to either count.3 A verdict that "the defendant spoke and published the words in the complaint specified," was upheld. And so of a verdict that found "the defendant guilty of willful and malicious slander." 5 In an action for libel there were eight special pleas of justification, and issue thereon; the jury found for the plaintiff on three issues, and for the defendant on the residue of the pleas; the verdict was held void because it did not assess the plaintiff's damages on the issues found for him." A plea of justification in an action for a libel contained three material allegations, as to one of which the jury expressed themselves of opinion that the proof failed. The judge told them that to warrant a finding in favor of the defendant, they must be satisfied that all three of the allegations were substantially made out. The jury, after two hours' deliberation, returned a verdict for the defendant upon that plea. The court refused to set it aside."

§ 293. As the amount of damages in an action for slander or libel is always a subject for the exercise of the

1 Corner v. Shew, 3 M. & W. 350; Kitchenman v. Skeel, 3 Ex. 49; Knightley v. Birch, 2 M. & S. 533.

5

2 Bradley v. Kennedy, 2 Greene, 231.

3 Cock v. Weatherby, 5 S. & M. 333.

4 Carlock v. Spencer, 2 Eng. [7 Ark.] 12.

Benaway v. Congre, 3 Chand. 214; and see Harding v. Brooks, 5 Pick. 244; Scott v. Cook, 1 Duvall, 314.

Clement v. Lewis, 3 B. & B. 297; 3 B. & A. 702.

7 Napier v. Daniell, 3 Sc. 417; 2 Hodges, 187; 3 Bing. N. C. 77. Where a plaintiff is entitled as against the defendant to be relieved from a verdict obtained against him, the court will not abstain from interfering on the ground of the lien of the plaintiff's attorney for his costs. (Symons v. Blake, 2 C. M. & R. 416.)

sound discretion of the jury, who may give more or less according to their conclusions from the whole case respecting the motives of the publisher,' a verdict in such an action will not be set aside for excessive damages unless there is some suspicion of unfair dealing," or "unless the case be such as to furnish evidence of prejudice, partiality or corruption on the part of the jury."3 The case must be very gross, and the damages enormous, to justify ordering a new trial on a question of damages. A new trial was granted on payment of costs, and under peculiar circumstances, where the verdict was £150,5 and so where

1 Davis v. Davis, 2 N. & M. 81; Trabue v. Mayo, 3 Dana, 138.

4

Mayson v. Sheppard, 12 Rich. Law (S. Car.) 254; and see Whyte v. Young, A'Beckett's Reserved Judgments, 68; Gilbert v. Burtenshaw, I Cowper, 230.

3 Lawyer v. Smith, 1 Denio, 207; Hartin v. Hopkins, 9 Johns. 36; Jarvis v. Hathaway, 3 Johns. 180; Rundell v. Butler, 10 Wend. 119; Bailey v. Dean, 5 Barb. 297; Spencer v. McMasters, 16 Ill. 405.

Tillotson v. Cheetham, 2 Johns. 63; Coleman v. Southwick, 9 Johns. 45; Southwick v. Stevens, 10 Johns. 443; Root v. King, 7 Cow. 613; Moody v. Baker, 5 Cow. 351; Cole v. Perry, 8 Cow. 214; Ostrom v. Calkins, 5 Wend. 263; Douglas v. Tousey, 2 Wend. 352; Cook v. Hill, 3 Sandf. 341; Riley v. Nugent, I A. K. Marsh. 431; Ryckman v. Parkins, 9 Wend. 470. The court refused to grant a new trial for excessive damages where the amounts were severally $1,000 (Bell v. Howard, 4 Litt. 117); $300, charge horse stealing (Faulkner v. Wilcox, 2 Litt. 369); $2,736, charge perjury (Sanders v. Johnson, 6 Blackf. 51); $500, charge horse stealing (Teagle v. Deboy, 8 Blackf. 134); £750, charge against a minister of the gospel (Highmore v. Harrington, 3 C. B. N. S. 142); £350 (Wakley v. Cooke, 4 Ex. 511); $334 (Ross v. Ross, 5 B. Monr. 20); $212 (St. Martin v. Desnoyer, 1 Minn. 156); $4,000 (Litton v. Young, 2 Metc. [Ky.] 558); $15,000 (Trumbull v. Gibbons, N. Y. Judicial Repository, 1); $5,000, charge want of chastity (Buckley v. Knapp, 48 Mo. 152); $10,000 (Fry v. Bennett, 4 Duer, 247); £1,000 (Gfroerer v. Hoffman, 15 Up. Can. Q. B. R. 441); $707 (Shute v. Barrett, 7 Pick. 82); $591 (Oakes v. Barrett, 7 Pick. 82); (Townsend v. Hughes, 2 Mod. 150); £4,000 (Roe v. Hawkes, 1 Lev. 97); $3,500 (McDougal v. Sharp, 1 City Hall Recorder, 154); $1,400 (Bodwell v. Osgood, 3 Pick. 379); and see Baker v. Briggs, 8 Pick. 122; Sargent v. ——, 5 Cow. 106; Mayne on Damages, 347; Chambers v. Caulfield, 6 East, 256; Hewlett v. Crutchley, 5 Taunt. 277; Coffin v. Coffin, 4 Mass. 1; Neal v. Lewis, 2 Bay, 204; Edgar v. Newell, 24 Up. Can. Q. B. R. 215; Myers v. Curry, Id. 470; Treanor v. Donahue, 9 Cush. 228; Wood v. Gunston, Style, 465; referred to Clapp v. Hudson River R. R. Co. 19 Barb. 465; Bruton v. Downes, 1 Fost. & F. 668.

5 Swan 7. Clellan, 13 Up. Can. Q. B. Rep. 335; and the plaintiff having died since the verdict was rendered, defendant was put under terms not to assign death of plaintiff as error, if on new trial the verdict was for the plaintiff.

the damages were $5,000. There is nothing to forbid the granting a new trial, in a proper case, for insufficient damages; but the granting a new trial for insufficient damages is of rare occurrence. Where the plaintiff was a minister of the gospel, and the damages only one farthing, the court refused a new trial. The court may order a new trial unless the plaintiff consents to reduce. the damages. Thus where the damages were $600, the court ordered a new trial, unless the plaintiff would consent to reduce them to $200.3

294. A new trial will not be granted because a verdict for defendant should have been for plaintiff with nominal damages. A new trial will be granted to admit newly discovered evidence to support a defense of

1 Netle v. Harrison, 2 McCord, 230. New trial where damages $2,500 (Freeman v. Tinsley, 50 Ill. 497); so where damages $4,000 (Wilson v. Oliver, 41 Ga. 538).

Kelly v. Sherlock, Law Rep. 1 Q. B. 686; and see Mears v. Griffin, 2 Sc. N. R. 15; Irwin v. Cook, 24 Texas, 244; Wavle v. Wavle, 16 Sup. Ct. Rep. (9 Hun), 125. In Forsdike v. Stone (Law Rep. 3 C. P. 607), the charge was that the female plaintiff had been guilty of adultery, and the damages were one shilling; a new trial was refused, and it was said that no new trial would be granted for insufficient damages, unless there had been a mistake in point of law on the part of the presiding judge, or a mistake in the calculation of figures, or misconduct by the jury. In Ohio (Code, 298), it is provided: A new trial shall not be granted on account of smallness of damages in an action for injury to the person or reputation. New trial because damages too small refused. (Rendall v. Hayward, 5 Bing. N. C. 424; Ld. Gower v. Heath, Barnes' Notes, 445; Hayward v. Newton, 2 Stra. 940; Atkins v. Thornton, Draper's Up. Can. Rep. 239.) New trial granted because damages too small, and because error in charge. (Kenney v. McLaughlin, 71 Mass. 3; and see Falvey v. Stanford, Law Rep. 10 Q. B. 54, where the damages were one farthing, and a new trial granted.)

3 Potter v. Thompson, 22 Barb. 87; Cook v. Cook, 36 Up. Can. Q. B. Rep. 583. Such a proceeding held improper. (Cassin v. Delaney, 6 Trans. App. 202; 6 Abb. Pr. R. N. S. 1; Moffat v. Sackett, 11 N. Y. 522.) The court refused a new trial, but reduced the amount of damages. (Gostling v. Brooks, 2 Fost. & F. 76; and see Johnston v. The Athenæum, 2 Appleton's Law of Literature, 452; Upham v. Dickinson, 50 Ill. 97. In the case of Attorney General of New Jersey v. Ennis, an action of slander mentioned in a note to Warren's Law Studies, the plaintiff appealed to the privy council from a verdict for the defendant given by the Royal Court at Jersey; the privy council not only set aside the verdict, but ordered the verdict to be entered for the plaintiff, with £50 damages.

4 Patton v. Hamilton, 12 Ind. 256; Rundell v. Butler, 10 Wend. 119. See, however, Levi v. Milne, 4 Bing. 195.

A new

not guilty, but not to support a justification. trial was refused where since the verdict for the plaintiff he had been convicted, partly on the evidence of the defendant, of the offense charged. A new trial was refused where a witness for the plaintiff had since the trial been convicted of perjury.3 Where plaintiff obtained a verdict for one shilling damages, in consequence, as he supposed, of the 'admission of improper evidence, it was held that having recovered a verdict, he could not insist on his objections to evidence, and a new trial was refused.

§ 295. Actions for slander and libel are in the nature of penal actions, and though the jury find for the defendant against the weight of evidence, a new trial is never (seldom) granted.5 granted. To warrant a new trial on the ground that the verdict is against evidence, it must be a very clear case. A new trial was granted because the language published did not warrant the innuendoes; 7 and so where the innuendo was disproved.8

6

1 Beers v. Root, 9 Johns. 264.

00 Symons v. Blake, 2 C. M. & R. 416; 4 Dowl. Pr. Cas. 263; 1 Gale, 182.

3 Eakins v. Evans, 3 Up. Can. Q. B. Rep. O. S. 383.

4 Rogers v. Munns, 25 Up. Can. Q. B. Rep. 153; and see Smith v..Kerr, 1 Barb. 155; Case v. Marks, 20 Conn. 248. Where plaintiff had a verdict for five shillings, a new trial was granted, the court recommending a stet processus. (Shaver v. Linton, 22 Up. Can. Q. B. R. 177.) In Hogle v. Hogle, 16 Up. Can. Q. B. R. 518, the plaintiff had a verdict for fifty shillings; the court above held that the declaration did not disclose a cause of action, refused a new trial to give defendant his costs, but arrested the judgment.

Ex parte Bailey, 2 Cow. 479; Hartin v. Hopkins, 9 Johns. 36; and see Hurtert v. Weines, 27 Iowa, 134. It is only on the very strongest grounds a verdict for defendant will be set aside as against evidence on a question of fair comment. (Odger v. Mortimer, 28 Law Times, N. S. 472.)

6

Root v. King, 7 Cow. 613; affirmed 4 Wend. 113; Paddock v. Salisbury, 2 Cow. 811; Kelly v. Partington, 4 B. & Ad. 700; Fisher v. Clement, 10 B. & Cr. 472; Blackburn v. Blackburn, 4 Bing. 395; I M. & P. 33; Broome v. Gosden, 1 C. B. 728; Hunt v. Bennett, E. D. Smith, 657.

7 Yrisarri v, Clement, 3 Bing. 432.

8 Johnston v. McDonald, 2 Up. Can. Q. B. R. 209. There cannot be a new trial upon one of several issues. (Morrison v. Harmer, 4 Scott, 530.)

§ 296. In New York, if the plaintiff recovers less than $50 damages, he can recover no more costs or disbursements than damages. The defendant may, at any time before verdict, offer to allow judgment to be taken against him for a certain sum with costs; the nonacceptance by plaintiff of such an offer will subject him to costs subsequent to its service, unless he recover a more favorable judgment." In England, if the damages in an action for slanderous words are less than forty shillings, the plaintiff, by statute 21 James I, recovers no more costs than damages; the statute was held not to apply to actions where the special damages are the gist of the action, nor to slander of title nor to libel.3

§ 296 a. Where a plaintiff in an action for slander or libel has had an opportunity of trying the action upon its merits, and has consented to a nonsuit, and afterwards brings a second action for substantially the same cause, leaving the costs of the former action unpaid, the court may stay the proceedings in the second action until the

1 Code of Pro. § 304.

2 Code of Pro. § 385.

3 As to costs in the courts of England, Skelton v. Seward, 1 Dowl. 411; Skinner v. Shoppee, 6 Bing. N. C. 131; Simpson v. Hardie, 2 M. & W. 84; 5 Dowl. 304; Foster v. Pointer, 8 M. & W. 395; 1 Dowl. 28; 9 C. & P. 718; Empson v. Fairfax, 3 Nev. & P. 385; Dodd v. Crease, 2 Cr. & M. 223; 4 Tyrw. 74; 2 Dowl. 269; Lafone v. Smith, 4 Hurl. & Nor. 158; Saville v. Jardine, 2 H. Black. 531; Halford v. Smith, 4 East, 567; Richards v. Cohen, I Dowl. 533; Goodall v. Ensall, 3 Dowl. 743; Grenfel v. Pierson, I Dowl. 400; Turner v. Horton, Willes, 438; Andrews v. Thompson, 8 Bing. 431; Forbes v. Gregory, 1 Cr. & M. 435; 1 Dowl. 679; Harrison v. Bush, 5 E. & B. 344; Biddulph v. Chamberlayne, 17 Q. B. 351; Kelly v. Partington, 5 B. & Ad. 645; 2 Nev. & M. 460; Prynne v. Browne, I Dowl. N. S. 680; 2 Stark. Sland. 113; Stat. 58 Geo. III, ch. 30; and by statute 3 and 4 Vict. ch. 24, § 2, on a certificate by the judge that the injury was willful and malicious, the plaintiff may recover costs, although the verdict is for less than forty shillings; as to this see Forsdike v. Stone, Law Rep. 3 C. P. 607; and see 30 and 31 Vict. ch. 142; Ings v. London and So. West. R. R. Law Rep. 4 C. P. 17; Gray v. West, Law Rep. 4 Q. B. 175; Sampson v. Mackay, Id. 643; Marshall v. Martin, Law Rep. 5 Q. B. 239. As to costs in Vermont, see Nichols v. Packard, 16 Vt. 147. In Indiana, see Skinner v. Bronnenburg, 18 Ind. 363. In Arkansas, Hill v. Patterson, Hemp. 173.