the plaintiff, to which the alleged libel is an answer, is admissible. The judge, before admitting or excluding it, may peruse it, in order to decide upon its character.' And all papers referred to in a libel, may be admitted for the purpose of explanation and interpretation. A postscript is admissible.3 Prefixing a previous publication as a text to the libel complained of, does not per se, make such previous publication admissible in evidence.*

§ 416. Controversies between the plaintiff and defendant prior to the publication complained of, and having no connection with the subject-matter of the publication, cannot be shown to mitigate the damages. Nor are previous publications by the plaintiff concerning the defendant admissible in mitigation, unless so immediately preceding the publication by the defendant as fairly to raise the presumption that the defendant made the publication under the impulse of the provocation. The defendant may show, in mitigation, that he was provoked to the publication complained of by some contempora

1 Maynard v. Beardsley, 7 Wend. 560; 4 Wend. 336.

Nash v. Benedict, 25 Wend. 645; Mullett v. Hulton, 4 Esp. 248; ante, p. 642, note 5.

Coleman's Case, 2 City Hall Recorder, 49.

Gould v. Weed, 12 Wend. 12. A subsequent publication cannot be given in evidence to determine the character of a publication, whether it is libelous or not. Two articles, to be so used, must appear simultaneously in the same paper or book. (Usher v. Severance, 2 App. (20 Maine), 9.)

Lester v. Wright, 2 Hill, 320. In an action of slander for words actionable in themselves, claiming general damages only; held, that, under the plea of the general issue, evidence that, during the six years prior to the trial, inveterate feelings of hostility had existed between the plaintiff and defendant, and that the plaintiff had taken every opportunity to irritate the defendant, was inadmissible. (Porter v. Henderson, 11 Mich. 20.)

6 Maynard v. Beardsley, 7 Wend. 560; 4 Id. 336; Gould v. Weed, 12 Id. 12; Child v. Homer, 13 Pick. 503; Walker v. Winn, 8 Mass. 248; Ransom v. Christian, 56 Ga. 351. A question to a witness, as to the state of feeling between the parties, must refer to the time of the slanderous speaking. (Justice v. Kirlin, 17 Ind. 588.) If the words complained of were spoken in presence of plaintiff, and he replied to them, the defendant may give such reply in evidence. (Bradley v. Gardner, 10 Cal.

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neous or nearly contemporaneous act or declaration of the plaintiff. Simply to show provoking acts or declarations by the plaintiff prior to the publication by the defendant, is not sufficient. In an action for a libel, in which the plaintiff was charged with being "a degraded scoundrel, liar and blackguard," it was held that the defendant might be allowed to prove, under the general issue, in mitigation of damages, that the plaintiff, shortly prior to the publication of said libel, charged the defendant with false swearing in a cause in which he was a witIn an action of slander against husband and wife, for words spoken by the wife, it is not competent for the defendants to prove that circumstances relating to the plaintiff's conduct were communicated to the husband before the slanderous words were uttered,3

ness.2

$ 417. The defendant cannot, to mitigate damages, give evidence of his poverty; of his apparent good humor at the time of speaking the words; that no one believed anything he said; that the defendant was not the author of the slander, and that he named the author at the time of the publication; that the publication did

1 Moore v. Clay, 24 Ala. 235; Watts v. Fraser, 2 Nev. & P. 157; 7 Ad. & El. 223; I Jurist, 671; 1 M. & Rob. 449; Moore v. Oastler, 1 M. & Rob. 451, note; Bourland v. Eidson, 8 Gratt. 27.

Davis v. Griffith, 4 Gill & Johns. 342.

3 Petrie v. Rose, 5 Watts & Serg. 364.

Myers v. Malcolm, 6 Hill, 292; Palmer v. Haskins, 28 Barb. 90; and see cases cited, note, p. 661, n. 4, ante.

5 Weaver v. Hindreck, 30 Mo. (9 Jones), 502; see ante, p. 476, n. 3. Defendant being intoxicated at the time of publication, said to be a matter of mitigation. (Howell v. Howell, 10 Ired. 84.)

Howe v. Perry, 15 Pick. 506; contra, Gates v. Meredith, 7 Ind. 440. An imputation of theft, made in the presence of one witness only, who stated that he did not believe the charge, held no reason for restricting the damages to a nominal amount. (Markham v. Russell, 12 Allen, 573; and see Burt v. McBain, 29 Mich. 260.) The fact that the words were spoken in the presence of one witness only, was held to be receivable in mitigation in Traphagen v. Carpenter, 1 City Hall Reporter, 55.

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Treat v. Browning, 4 Conn. 408; contra, Bennett v. Bennett, 6 C. & P. 588; Easterwood v. Quinn, 2 Brev. 64; but see ante, § 210. Under some circumstances, the defendant may prove, in mitigation, that he derived his information from others (Ken

not injure, or that it benefited the plaintiff;" or that others had previously published the same words;3 a declaration of the plaintiff that the publication did him no injury; or that he believed the defendant was not the

nedy v. Gregory, 1 Binn. 85; Galloway v. Courtney, 10 Rich. Law [S. Car.] 414: but see Thompson v. Bowers, I Doug. 321; Anthony v. Stephens, 1 Mo. 254), and from whom or how he derived his information (Leister v. Smith, 2 Root, 24); as that the charge was taken from the journals of Congress (Romayne v. Duane, 3 Wash. C. C. 246); or copied from another paper. (Davis v. Cutbush, 1 Fost. & Fin. 487; Howell v. Pioneer Press Co. Min. Sup. Ct. Oct. 1876.) That the defendant published the libel on the communication of a correspondent, held not admissible in mitigation. (Talbutt v. Clarke, 2 M. & Rob. 312.) Where A. published a libel taken from a paper published by B., as an extract from a paper published by C., it was held, in an action brought by C. against A., that the testimony of D. that he had heard A., before he published the libel, ask E. whether he had not seen it in the paper of C., and that E. answered "that he had," was inadmissible in mitigation of damages; but that E. himself should be produced, if his declaration were proper evidence. (Coleman v. Southwick, 9 Johns. 45.) In an action for the publication of a libel, the defendant asked a news collector, who wrote a part of the article complained of, "What inquiries and examinations he made, and what sources of information he applied to, before making the communication" which tended to charge the plaintiff with dishonesty and bad faith? Held, that the question was incompetent, and that the defendant, as a foundation for such question, could not prove that there was a general anxiety in the community in regard to the facts stated in the publication. (Sheckell v. Jackson, 10 Cush. [Mass.] 25.) And see Bond v. Kendall, 36 Vt. 741, where it was held that the defendant could not show the libel was a letter to B. containing the result of inquiries made concerning the plaintiff at request of B. Where the action was for publishing the proceedings of a meeting, held that defendant might prove in mitigation that many severe expressions were used towards plaintiff which he did not include in his report. (Creighton v. Finlay, Arm. Mac. & Og. 385; and see Crevy v. Carr, 7 Car. & P. 64.)

1 Titus v. Sumner, 44 N. Y. 266. On the trial of an action for slander it is not error to exclude a general offer by defendant to prove that plaintiff's reputation was not affected by the publication. The evidence would be a mere opinion of the witness, and is not directed to the plaintiff's want of previous good character as affecting the amount of the recovery. (Id.)

2 Calhoun v. M'Means, 1 N. & M. 422; Rex v. Woodfall, Lofft, 776. No man shall set up his own iniquity as a defense any more than as a cause of action. (Mansfield, Ch. J., Montefiori v. Montefiori, 1 W. Black. R. 363; see Stewart v. Wilkinson, 7 Law Times, 81; Fry v. Bennett, 28 N. Y. 328; supra, note 4.

3 Saunders v. Mills, 6 Bing. 213; Hinkle v. Davenport, 38 Iowa, 365.

Porter v. Henderson, II Mich. 20. In Quigley v. Phila. &c. R. R. Co. (21 How. U. S. Rep. 209), the defendants gave evidence of declarations by the plaintiff that the matters out of which the libel arose had improved his business. In an action for libel, the answer denied malice and injury to plaintiff, and set up a justification. On the trial defendant offered to prove a conversation with plaintiff in which he stated he had sustained no damage, was ready to withdraw the suit, as he had not been injured at all, and that he would have withdrawn it, were it not for his

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author but only the repeater of the slander; that plaintiff was an enemy of his (defendant's); that plaintiff is a quarrelsome person; 3 or a malicious person; that plaintiff had boasted of committing offenses of a like character with that charged; that plaintiff was in the habit of abusing the defendant; that plaintiff was a common libeler; that plaintiff has sometimes published slander of other persons not the defendant; or has threatened so to do; a former recovery; that defendant declared he could prove the truth of the words;" or in an action for slander of husband and wife, that they lived unhappily together;" or kept a disorderly house."3

ΤΟ

lawyers, who had taken the case for what they could get out of it, which was excluded, held that it ought to have been received. (Samuels v. Even'g Mail Asso. 13 Sup. Ct. Rep. [6 Hun], 5.) A witness was allowed to testify that when subpœnaed by plaintiff, he, witness, asked plaintiff, if he thought what defendant had said had been of any injury to him, to which plaintiff answered that he did not know that it had, but it had occasioned some of his creditors to crowd him. (Ostrom v. Calkins, 5 Wend. 264 ; see ante, note 1, p. 538; and note 2, p. 692.)

1 Evans v. Smith, 5 Monr. 363.

2 Craig v. Catlet, 5 Dana, 325.

* Hosley v. Brooks, 20 Ill. 115; M'Alexander v. Harris, 6 Munf. 465. Forshee v. Abrams, 2 Clarke (Iowa), 572.

Pallet v. Sargent, 36 N. Hamp. 496.

Goodbread v. Leadbitter, 1 Dev. & Bat. 12; Wakley v. Johnson, 1 Ry. & M. 422; May v. Brown, 3 B. & Cr. 113; M'Alexander v. Harris, 6 Munf. 465; contra, see Botelar v. Bell, 1 Md. 173. In a suit for slander, for charging the plaintiff with perjury, the defendant cannot show that, upon a wholly different occasion, the plaintiff called him a liar and a perjured wretch. (Porter v. Henderson, 11 Mich. 20.) Maynard v. Beardsley, 7 Wend. 560; 4 Id. 336; Gould v. Weed, 12 Id. 12.

8 Forshee v. Abrams, 2 Clarke (Iowa), 571.

Cochran v. Butterfield, 18 N. Hamp. 115.

10 The defendant is not allowed to give in evidence, in mitigation of damages, a former recovery of damages against him, in favor of the same plaintiff, in another action for a libel, which formed one of a series of numbers published in the same gazette, and containing the libelous words charged in the declaration in the sccond suit. (Tillotson v. Cheetham, 3 Johns. 56.) The damages are not to be lessened by the fact that the plaintiff has an action against other persons for publishing the same language. (Harrison v. Pearce, 1 Fost. & Fin. 567; Frescoe v. May, 2 Id. 123.)

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