Holt, 5 Term R. 436; Ingram v. Lawson, 9 Car. & P. 333. The defense stricken out by the trial judge alleged only incompetent and irrelevant matters, and his ruling was correct.

None of the foregoing defenses set up in the answer of the defendant were defenses in mitigation of damages. It matters not that they were labeled as such by the pleader. None of them set up any matters having a tendency to show that the defendant had acted in good faith in publishing the paragraph, believing it to be true, or under an honest misapprehension, or inadvertently. The libel stated in terms that the plaintiff had been indicted on the day of the publication by the grand jury for forgery, and also by implication that a previous indictment had been found against him. The paragraph did not purport to charge that the plaintiff was guilty of the offense for which he had been indicted. The paragraph was libelous because it stated a fact tending to prejudice him in his good name and reputation, and to bring him into discredit. The finding of an indictment by a grand jury implies that sufficient evidence has been collected and adduced against the accused, in the absence of explanation, to make it proper and expedient that he should be placed on trial for the offense; in other words, that his guilt has been established prima facie to the satisfaction of the grand jury. But it does not necessarily imply that the accused is guilty. The imputation that a man has been indicted is a far less venomous attack upon his character than one which asserts his guilt, and, in legal contemplation, is less injurious. The defense alleging that at some previous time the grand jury had indicted the plaintiff, jointly with his co-partners, for a misdemeanor, was a justification pro tanto of the libel. If proved, the facts would have established that the statement by implication in the paragraph was not libelous, because it was true. If the defense alleging that the plaintiff and one of his partners had been guilty of forgery, and that his partner, on the day of publication of the libel, was indicted by the grand jury for forgery, had been supplemented by averments stating that the defendant was led by error to suppose the indictment found against the plaintiff's partner was an indictment against the plaintiff himself, and had published the paragraph on that supposition, it would have set up proper matter of mitigation. The observations in respect to the defense stricken out by the trial judge are equally applicable to the defense alleging that the defendant had, previous to the publication of the libel, published other incriminating paragraphs concerning the plaintiff, by reason of which his reputation was valueless when the libel was published. If the facts set up in these defenses were true, they would not have had the remotest bearing upon the conduct of the defendant in publishing the libel complained of, as the averments were irrelevant to any issue which could properly be tried. The only office they could serve was to besmirch and befoul the reputation of the plaintiff.

It is not a defense to a libel or slander that the plaintiff has been guilty of offenses other than those imputed to him, or of offenses of a similar character; and such facts are not competent in mitigation of damages. The only tendency of such proof is to show, not that the plaintiff's reputation is bad, but that it ought to be bad. The strict

ness with which this rule is applied is shown in the ancient case of Smithies v. Harrison, 1 Ld. Raym. 727, and in the modern cases of Andrews v. Van Duzer, 11 Johns. 38, and Parkhurst v. Ketchum, 6 Allen, 406. It is also settled by law that only such facts are available in mitigation of damages as were known to the defendant at the time of the publication, and which might have influenced him in making the defamatory statements. Bush v. Prosser, 11 N. Y. 347; Hatfield v. Lasher, 81 N. Y. 246. Even a plea in mitigation, setting up competent defensive facts, if interposed in bad faith, may be considered by the jury in aggravation of damages, and is not protected by the Code of Civil Procedure of this state (section 535), according to the decision of the highest court of the state. Cruikshank v. Gordon, 118 N. Y. 178, 23 N. E. 457. Applying these considerations, as there was evidence upon the trial sufficient to authorize the jury to find that the defenses were not interposed in good faith, the trial judge was justified in instructing them that they might consider that circumstance in aggravation of damages.

By averring, as it did in one of the defenses of its answer, that the paragraph published was substantially true, the defendant assumed full responsibility for the libel. Such a plea, if untrue, and not maintained by the evidence, is an aggravation of the original charge, and "evinces continued and express malice." Hil. Torts, 445. The trial judge did not err in his instructions to the jury that this averment might be considered by them upon the question of actual malice. Kennedy v. Gifford, 19 Wend. 296; Williams v. Miner, 18 Conn. 464; Stearns v. Cox, 17 Ohio, 590; Baldwin v. Soule, 6 Gray, 321; Robbins v. Fletcher, 101 Mass. 115.

Another assignment of error is based upon the admission of evidence. The defendant having introduced in evidence the two indictments mentioned in its answer,-one for misdemeanor against the plaintiff and his partners, and the other for forgery against Beecher, -the plaintiff was allowed, against the objection of the defendant, to show by the indorsements of the first indictment that upon the motion of the district attorney it had been dismissed by the court having jurisdiction to try it, and to show by the record that there was a verdict of not guilty upon the trial of the second. These proceedings took place after the publication of the libel, but before the commencement of the action, and nearly three years before the interposition of the answer. If, in allowing the plaintiff to controvert the proof offered by the defendant to support issues which were extraneous to any legitimate controversy, the trial judge admitted incompetent evidence, the error was harmless, as the evidence merely tended to disprove worthless facts which the defendant had attempted to establish. In another view the evidence was relevant, and we think competent. The answer was interposed long after these judicial proceedings had taken place. They were a part of the history of the incriminating transactions which the defendant had set up in its answer as defensive matters. Common justice required the defendant to acquaint itself with the result of the criminal proceedings before interposing such matters in its answer. If it did not do so, or if it interposed the answer after it was informed, the circumstance tended to discredit

the good faith of the pleading, and to weigh in aggravation of damages.

This court has no power to review the amount of damages when the proper rule of damages has been given to the jury, and we therefore cannot consider the assignment of error which alleges that the verdict was excessive. It is proper, however, to observe that, if the defendant had contented itself with pleading and proving that it was led by the error of its reporter to suppose that the indictment found against Beecher included the plaintiff, and published the paragraph upon that supposition, the case would have been a comparatively trivial one. It was made a serious one by injecting into it issues which were wholly foreign to the real controversy, and which could serve no purpose but to disparage the character of the plaintiff. Although the verdict was a large one, the result was undoubtedly due, in part at least, to the character of the defense.

The denial of the defendant's motion for a new trial because of the excessiveness of damages is not subject to review here. Railroad Co. v. Winter's Adm'r, 143 U. S. 60, 12 Sup. Ct. 356, 36 L. Ed. 71; Laber v. Cooper, 7 Wall. 565, 19 L. Ed. 151; Railway Co. v. Heck, 102 U. S. 120, 26 L. Ed. 58.

The judgment is affirmed.

NOTE.

Libel and Slander-Mitigation.

I. EVIDENCE OF OTHER OFFENSES AS DEFENSE.

[a] (Ga. Sup. 1897) Publishing that another had frequently been accused of the crime of arson in one county, and in the publication adopting this accusation as the basis of charging him with having committed this crime in another county, can be justified only by proof that he was actually guilty of arson in the former county.-Cox v. Strickland, 28 S. E. 655, 101 Ga. 482.

[b] (Ill. App. 1895) Evidence tending to establish the charge of adultery prior to the speaking of the words having been shown by defendant under a plea of justification, subsequent acts of improper intimacy, occurring even after suit was brought, may be shown by him as explanatory of the former criminating circumstances.-Claypool v. Claypool, 65 Ill. App. 446.

[c] (Ind. App. 1893) In an action for libel in charging a female with unchastity, evidence of specific acts of immorality committed by plaintiff, which were wholly disconnected with the acts charged in the publication, is not admissible under a plea of justification, since character can be proved only by general reputation.-Newspaper Co. v. Pugh, 33 N. E. 991, 6 Ind. App. 510. [d] (Mich. Sup. 1897) A charge of being a thief cannot be justified by showing the person was guilty of cheating, fraud, or false pretenses.-Youngs v. Adams, 71 N. W. 585, 113 Mich. 199.

[e] (N. Y. Sup. 1893) In an action for slander in accusing plaintiff of incest with his daughter M., defendant, under a plea of justification, cannot show that plaintiff attempted to outrage his other daughter.-Haddock v. Naughton, 26 N. Y. Supp. 455, 74 Hun, 390.

[f] (N. Y. Sup. 1897) In an action for libel for publishing a statement that plaintiff, a married woman, had eloped with one R., the chastity of plaintiff was given great consideration on the question of damages. Held, that evidence of adulterous intercourse between plaintiff and R. was admissible for the purpose of reducing the damages.-Smith v. Matthews, 47 N. Y. Supp. 96, 21 Misc. Rep. 150.

[g] (Tex. Cr. App. 1895) On a prosecution for slander, imputing to a woman want of chastity, evidence of distinct acts of unlawful commerce with men prior to the slander is admissible.-Van Dusen v. State, 30 S. W. 1073, 34 Tex. Cr. R. 456.

[h] (Tex. Civ. App. 1896)
an action for libel, in the direction of the charges made, is admissible in miti-
gation of damages.-George Knapp & Co. v. Campbell, 36 S. W. 765, 14 Tex.

Proof of the actual bad character of a plaintiff in

Civ. App. 199.

[i] (Wis. Sup. 1898) Defendant may prove, in mitigation of damages, that
plaintiff's character was bad, with reference to any of the alleged defamatory
charges. Candrian V. Miller, 73 N. W. 1004, 98 Wis. 164.

1. In General.

II. PUBLICATION BY AND LIABILITY OF OTHERS.

[a] (U. S. C. C. A., N. Y., 1893) In an action for publishing a libel in a news-
paper, testimony that the plaintiff has also commenced suits against other
newspapers for the publication of other similar libels is irrelevant.-Smith v.
Association, 55 Fed. 240, 5 C. C. A. 91.

[b] (Ky. App. 1896) To mitigate damages, and rebut the presumption of
malice, it is proper to show that a statement in a newspaper was made on
information furnished by the police, and published only as a matter of news,
in the belief that it was true.-Post Co. v. Hunter, 38 S. W. 487.

[c] (Minn. Sup. 1889) The fact that an article alleged to be libelous was pub-
lished in explanation of and in reply to a false article published by plaintiff
concerning defendants cannot be pleaded in justification. Stewart v. Tribune
Co., 42 N. W. 787, 41 Minn. 71.

[d] (N. J. Err. & App. 1895) In mitigation of damages, defendant in a libel
suit may show that he did not originate the calumnious charge.-Publishing
Co. v. Kahn, 33 Atl. 382, 1060, 58 N. J. Law, 359.

2. Prior and Contemporaneous Publication by Others.

[a] (U. S. C. C. A., Ind., 1896) Upon the trial of an action for libel published
in a newspaper, it is not error to exclude evidence of similar publications in
other papers; the inquiry being so framed as to include publications which
might be subsequent to or copied from that sued on.-Enquirer Co. v. John-
ston, 72 Fed. 443, 18 C. C. A. 628.

[b] (U. S. C. C. A., N. Y., 1897) Evidence that plaintiff has recovered a judg-
ment against another newspaper for publishing the same libel is inadmissible.
-Bennett v. Salisbury, 78 Fed. 769, 24 C. C. A. 329.

[c] (Conn. Sup. 1896) In an action for libel tried to the court, where the
Court admitted articles from another paper brought to the notice of defendant
before publication of the libel, to show the sources of defendant's information
and to establish good faith, and refused to admit other similar articles, because
satisfied by the evidence that they were not brought to the notice of defendant
before publication of the libel, the exclusion was not prejudicial to defend-
ant.-Atwater v. News Co., 34 Atl. 865, 67 Conn. 504.

[d] (Mich. Sup. 1895) In an action for libel, for a publication in a paper,
charging an attempt to bribe a state senator, an alleged interview with plain-
tiff, published in another paper, on which the charge was based, is inadmis-
sible to prove the truth of the libel.-Owen v. Dewey, 65 N. W. 8, 107 Mich. 67.
[e] (N. Y. App. 1900) In an action for libel, it was error to allow defendants
to show that other newspapers had published the statement complained of,
and that plaintiff had commenced suits against them.-Palmer v. Matthews,
56 N. E. 501, affirming (1898) 52 N. Y. Supp. 539.

[f] (N. Y. Com. Pl. 1892) Evidence of contemporaneous publication of a libel
by others, of which defendant was ignorant at the time of the publication
complained of, is not admissible in mitigation of damages or in disproof of
malice.-Witcher v. Jones, 17 N. Y. Supp. 491.

[g] (Or. Sup. 1893) The fact that a libelous article on a congressional can-
didate was copied by defendant from another newspaper is not a justification,
even if defendant acted with the utmost good faith and honest belief in its
truth, and in order to inform the voters. Such matters can only be considered
in disproof of malice, to mitigate damages.-Upton v. Hume, 33 Pac. 810, 24
Or. 420, 21 L. R. A. 493.

[h] (Pa. Sup. 1889) A cross-examination of plaintiff as to whether or not the
alleged libel was published in other papers than defendant's is improper.-
Hayes v. Press Co., 18 Atl. 331, 127 Pa. St. 642, 24 W. N. C. 413, 5 L. R. A. 643.

[i] (R. I. Sup. 1896) Evidence that the same libelous article was published in other papers on the same day, and that judgments had been rendered against them in other actions, is inadmissible, since each paper is liable for the_consequences of its own publication.-Folwell v. Journal Co., 37 Atl. 6, 19 R. I. 551.

3. Republication by Others.

[a] (Mich. Sup. 1890) An article in another newspaper, substantially repeating a libelous charge contained in defendant's newspaper, but not shown to be connected with the publication in his newspaper, is not admissible as evidence against defendant; and the error in its admission is not cured by subsequently striking it out.-McDuff v. Journal Co., 47 N. W. 671, 84 Mich. 1. 4. News Furnished by Associated Press.

[a] (N. Y. Sup. 1898) The fact that the publisher of a libel received the matter complained of, in the usual course of business, from the Associated Press, a reputable news agency, is no defense to an action for compensatory damages. -Robinson v. Publishing Co., 55 N. Y. Supp. 62, 25 Misc. Rep. 243, 28 N. Y. Civ. Proc. R. 239.

5. Prevalence of Rumors as Justification.

[a] (U. S. C. C. A., Ohio, 1893) If defendant, for the purpose of showing good faith, is allowed to prove the circulation of rumors interpreting plaintiff's conduct in the same way as stated in the publication, there is no error in permitting plaintiff to show in rebuttal the existence of a widespread, general understanding which placed an entirely innocent interpretation on his acts.Publishing Co. v. Hallan, 59 Fed. 530, 8 C. C. A. 201.

[b] (Cal. Sup. 1893) Evidence by the editor of defendants' paper, in which an article charging intention to bribe at a coming election was published, that rumors of the facts published came to him from dozens of persons, and that he published the article in good faith, to prevent what it was feared would occur, is not admissible in mitigation, in the absence of the names of the persons giving him the information, and of evidence that the informants possessed such character as would warrant belief.-Edwards v. Publishing Co., 34 Pac. 128, 99 Cal. 431.

[c] (Ky. App. 1891) Under Civ. Code, § 124, which provides that in actions for libel the defendant may show mitigating circumstances to reduce the amount of damages, it was competent to show the existence of a general rumor prior to the publication of the alleged libelous article that plaintiff was guilty of the corrupt conduct charged.-McIntyre v. Bransford, 17 S. W. 359. [d] (Ky. App. 1899) Defendant may, in mitigation of damages, prove that the report was generally circulated in the neighborhood, but it is error to permit witnesses to detail conversations had in regard to the report.-Nicholson v. Rust, 52 S. W. 933.

6. Slander.

[a] (Cal. Sup. 1891) In an action for slander, evidence that the defamatory statements made by defendant were common reports in the place where plaintiff formerly lived is inadmissible in mitigation of damages.-Preston v. Frey, 27 Pac. 533, 91 Cal. 107.

[aa] (Ind. App. 1894) In an action for slander in charging plaintiff with adultery, evidence that it was currently reported in the neighborhood that her husband was not the father of her children is inadmissible.-Gray v. Elzroth, 37 N. E. 551, 10 Ind. App. 587.

[b] (La. Sup. 1896) It is no defense to an action for slander that the speaker did not originate the scandal, but repeated what he had heard from another, though he in good faith believed it to be true, giving the name of author.Harris v. Minvielle, 19 South. 925, 48 La. Ann. 908.

[c] (Mo. App. 1892) In an action for slander, evidence that the slander was only a repetition of a current report of long standing, by which plaintiff's general reputation had become impaired, is admissible in mitigation of compensatory damages.-Nelson v. Wallace, 48 Mo. App. 193.

[d] (Or. Sup. 1889) Slanderous words cannot be justified by proof that the defendant only repeated what he heard another person say concerning the plaintiff.-Davis v. Sladden, 21 Pac. 140, 17 Or. 259.