Hotchkiss against Lothrop, 1 Johns. 286

Spencer, J. delivered the opinion of the court. The plaintiff offered proof, in aggravation of the damages, that the defendant had been indemnified for the publication he ■ had made. This proof was overruled ; and its relevancy does, not strike me. The circumstances of the defendant are not ■shewn to have been, bad or insolvent. Without expressing any opinion on a different state of facts, I think this evidence was properly rejected. The defendant, under his notice, offered proof of the first .publication, to which that of the defendant was an answer..

The judge overruled it, as matter of justification, on some mistake in the notice ; but admitted it in mitigation of the damages, and as explanatory of the subject matter, occasion and intent of the defendant’s publication. The proof, under these circumstances, and for that purpose, I conceive proper, for otherwise, the defendant’s libel might not be intelligible.

In charging the jury, the judge instructed them, that the plaintiff, not having proved the truth of his charge against Curtis, the same must be deemed untrue ; and that the defendant was well warranted in making the publication complained of, if it appeared to them, as it did to him, that he had confined himself in his strictures to the previous publication of the plaintiff, or had made no allegations extrinsic or foreign thereto.

It does not appear to me, that the plaintiff was bound to prove the facts of the first publication, or that he would be permitted to do so, Curtis was a stranger to these proceedings ; and if his character or conduct could thus be drawn in question, the reputation of no man would be safe; for a fictitious suit might thus be instituted, for the purpose of destroying the fairest reputation in the community.

If in a wager, where the feelings or reputation of a third person may be involved, the court will not permit his character to be assailed, I cannot perceive any reason for allowing it under these circumstances—Curtis is not legally to be presumed to be prepared on a trial inter alios to defend himself. It has not been controverted, that the defendant’s publication, if untrue, was libellous ; and I can never subscribe to the doctrine, that because A has written a piece against B, about the truth or falshood of which the court know nothing, that C can interfere, by lavishing his abuse on A for that writing.

It was, as I have observed, matter properly admitted in evidence, that the plaintiff had written apiece, to which the defendant’s was an answer; and it might and ought to operate in mi. igadon of damages, that the plaintiff had assailed an individual in the public prints, who was holden up as a candidate for an elective office. But it having been admitted to be read in evidence, on a principle which I do not adopt, I think a new trial ought to be awarded, with costs., to abide the event. New trial granted.