MAYO v. BLAIR et al., 16 F. Cas. 1263

But THE COURT refused to allow the same to be read, which refusal was excepted to by the counsel of the defendants. The following prayers were granted by THE COURT: 1st. The declaration in this case charging the libel as laid to consist in charging the plaintiff with purloining a certain paper,, to which the defendants have pleaded not guilty, it is not competent for the defendants to prove the truth of said libel in this action even in mitigation of damages.

But the defendants may prove the truth of any other improper way of getting possession of such paper by the plaintiff, or any improper use of such paper by plaintiff, known to the defendants, at the time of the publication. 2nd. The defendants having pleaded justification to the second and third counts of the declaration averring the truth of the libel, it is essential for the "defendants to prove to the satisfaction of the jury the truth of the alleged libel, with the inuendoes as laid in the declaration. 3rd.

It is not competent for defendants, in sustaining the issue on their part on the pleas of justification, to give any evidence in mitigation of damages, if the jury shall believe from the evidence that the plea of justification was not made out by proof. 4th.

It is not competent for the defendants to give evidence under the second and third pleas, if the jury shall believe the pleas averring the truth of said alleged libel not to be sustained, nor any evidence to disprove the malice which the law infers from the original publication of the alleged libel and from the retention of the same in the pleas of justification. 5th.

That the only part of the declaration to which it is competent to defendants to give any evidence to disprove malice or in mitigation of damages, is the first count, and the jury are not to regard any facts as amounting to a negation of malice or as mitigating the damages, unless the jury shall be satisfied from said evidence that said facts actually existed and were known to defendants before and at the time of the alleged publication. 6th.

If the jury shall believe from the said evidence that the defendants actually published the libel as laid in the first count of the declaration and that facts therein averred and the inuendoes in said first count mentioned are true, then the jury must find for the plaintiff upon the issue in that count, but the amount of damages is a matter for the judgment of the jury.

But the jury, before they can find a verdict for the plaintiff on said first count, with any damages, must be satisfied from the evidence that it was known to the defendants at the time of said publication that the plaintiff was the person who‘had delivered the letter to Mr. Adams. And if they find that the defendants had that knowledge at that time, they must be further satisfied by the evidence that the defendants intended to describe and point out the plaintiff in said publication as the person charged thereby.

The following prayer was refused by THE COURT: Nor is it competent under pleas of justification for the defendants to give in evidence the use made by the plaintiff of the said letter after it came to his hands as evidence of the truth of the libel laid in the second and third counts. Verdict for the defendants. The plaintiff, through his counsel, Coxe and Bradley, moved for a new trial — Because the court mistook the law. Because illegal testimony was admitted on the part of the defendants.

Because the verdict was against law and against the evidence; and because of newly discovered evidence materially affecting the merits of the case. The motion was overruled by THE COURT. THRUSTON,- Circuit Judge, absent