
    Hotchkiss against Lothrop.
    In action for a libel, the defendant may give in evidence a former publication by the plaintiff to which the libel was an answer, to explain the subject matter, occasion, and intent of the defendant's publication, and in mitigation of damages. But such prior publication by the plaintiff^ though a libel on the defendant, does not am omit to a justification of the defendant, nor will it be received in evidence as a justification.
    THIS was an action for a libel. The cause was tried at the Oneida circuit, on the 14th June, 1805, before Mr.Chief Justice Kent. The publication of the libel by the defendant, as editor of the Gazette in which it appeared, was proved. The paper was addressed to the electors of the county of Oneida, in defence bf the character of Jesse Curtis, Esquire, one of the candidates, as a member of the assembly, against certain charges which had appeared in the Columbian, Gazette, printed at Utica, and in this defence the author animadverts on the plaintiff, as the supposed author of the other piece. The plaintiff, in aggravavation of damages, offered to prove that the defendant was indemnified for the publication of the libel; but the judge overruled the evidence, as the defendant was to be considered as the author. The defendant then offered in justificaiion, under the notice of special matter annexed to the plea of not guilty, to prove that the plaintiff had, in a certain publication made by him, previously libelled Jesse Curtis; but this was objected to, and overruled by the judge, as matter of justification. The evidence was then offered as matter of excuse, and it was admitted by the judge, to explain the subject, occasion, and intent of the publication complained of by the plaintiff, it being unnecessary, in that view, that it should be set forth in the notice which accompanied the jilea. The paper signed by the plaintiff was accordingly read to the jury. The judge charged the jury, that as the plaintiff had produced no evidence to prove the truth of the facts he had alleged against Curtis, the publication was to be deemed untrue, and that the defendant was, therefore,' warranted in making the . . . . publication complained of by the plaintiff, provided he confined himself, in his' strictures, to the previous publication of the plaintiff, which appeared to him to be the ease.
    The jury found a verdict for the defendant*
    Simonds, for the plaintiff,
    contended, 1. that the evidence offered to show that the defendant was indemnified by the author, ought to have been received, as it was a circumstance proper for the jury to take into consideration in estimating the damages. 2. The provocation to a libel) furnished no matter of excuse, and could not be given in evidence for that purpose. If A libels B, it is no legal excuse or justification for A, that B had previously libel-led him. The publication thus produced by way of excuse, was not specified in the notice, and, ought hot, therefore, to have been received in evidence.
    Gould, contra, 1. The evidence of the defendants having been indemnified by the author, was clearly inadmissible. The plaintiff’s right of action against the defendant, was as perfect, as if he were the real author, against whom the plaintiff might, also, have his action, and ought not, therefore, to have the damages against the publisher enhanced, on the ground of an indemnity by the author. 2. It was perfectly proper and competent for the defendant to explain the cause and circumstances of the publication, to prove that there was no malice. It is like showing the subject matter, or whole conversation, to prove that there was no slander or malicious intent. Minors v¿ Leefend. Cro. James. 114. Suppose the defendant had recited the previous publication of the plaintiff verbatim, and then had proceeded to comment upon it, in the manner he has done, would not the text have justified the comment ? The reference made to it is equally certain, and cannot be mistaken. The two publications, therefore, ought to be considered together,-
    In the case of Williams, alias, Anthony Pasquín, against Faulder, for a libel, tried before Lord Kenyon, in 1797, ^jg ]or¿suip permitted Mr. Garrow, the defendant’s counsel, to read to the jury, various passages from the different publications of the plaintiff, vilifying and libelling some of the most respectable characters, in order to show that the plaintiff was a notorious and infamous libeller, and therefore, not entitled to ask for damages for a publication against himself. Lord Kenyon observed to the jury, “ that it was their “ duty to consider, whether the author of such works as “ they had heard read and described, had a right to call . “ for damages. It appears to me,” says he, “ that the (C author of the Baviad (the work published by Faulder “ has acted a very meritorious part in exposing this man.” The jury,, without a moment’s hesitation, found for the defendant. If the rule thus adopted by Lord Kenyon, be correct, and it is certainly founded in principles of justice and self defence, the judge at the trial of the present cause, was right in admitting evidence to explain the reason and motives, which induced the defendant to publish the observations on the plaintiff, for which this action has .been brought.
   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.  