
    *John Fisher v. John Patterson.
    Portions of a publication containing distinct libels, not declared upon by the plaintiff, and it not appearing that they were offered in proof for any purpose, by the plaintiff, can not bo, found true by the jury to mitigate damages.
    Distinct or separate libels, not declared upon, can not bo introduced in evidence and relied upon, either by plaintiff or defendant, to show malice, or to aggravate or mitigate damages.
    The oourt will not interfere to grant a new trial in actions of libel, on the ground of excessive damages, unless they are so gross as to convince the court that the jury acted from corruption, mistake, undue bias, or some improper influence.
    The court will not grant a new trial on the ground of repugnancy in the verdict; the alleged repugnancy being that the jury found for the defendant on the first count, and all the issues for the plaintiff on the second count; and that, by finding for the defendant on the first count, they found that he did not falsely publish ; and that, by the finding on the second count, they found that he did falsely publish, etc.
    Not contradicting by testimony a part of-the publication not in proof, containing a chartjo of crime, is not an admission by plaintiff of its truth, and should not he considered by the jury in mitigation of damages.
    Reputation of having committed particular wrongful acts or crimes, and having been convicted of such crimes, is not proof to mitigate damages— the general character of the plaintiff only being in issue.
    This is a writ of error, directed to the Supreme Court of Adams-county.
    The record shows that on November 3, 1837, Patterson brought an action for a libel against Fisher in the court of common pleas of Adams county. The declaration contains two counts. In the-first count, it is averred that Fisher, on September 14, 1837, pub lished of and concerning Patterson, the following:
    
      “To John Patterson, Esq. — Sir: A year or two since, a handbill was printed and circulated in this county, signed ‘ One of the-People,’ stating- in substance that you, when a journeyman silversmith at Pittsburg, decamped suddenly from your employer, minus a large amount of plate, consisting of silver spoons and other articles manufactured of that metal, and that your employer advertised you as a runaway thief, offering a handsome ^reward for your apprehension. This charge has again been preferred .against you, in the Free Press, no longer ago than last month, in .a paper, too, published within a few rods of your own house. Now, the writer of these articles, signed ‘One of the People,’ is well known in this county to bo John Fisher, with whom some of ¡us have been acquainted for more than twenty years ; and, from •our knowledge of him, we must say, Whig as he is, we are loth to •question his veracity, and we know that he is made of stuff that will [bear] him out in whatever be may state. We have voted for you more than once, and will again, if you clear your character from these foul charges, or prosecute ‘ One of the People,’ alias John Fisher, for his attempt to lessen our Democratic leader in the estimation of his followers. Respectfully, Thomas Baird, Wm. P. Truitt, John Pool.”
    In the second count, it is averred that said Fisher, on October •6, 1837, published, among other things, of the plaintiff, the following :
    “ It is hard to believe a liar even if he tell the truth. I will state to you, fellow-citizens, what I had heard eight or ten years •since. A gentleman said to be from Pittsburg, stated, in the town ■of West Union, that, when Patterson first left that place, in his hurry to move westward, be forgot to leave sundry articles of •value belonging to a citizen of Pittsburg, and that citizen referred ■to, published the transaction in a paper in that city. I inquired •enough about the matter to satisfy myself, at the time — I became satisfied. I have not, from that day to this, spoke of John Patterson. Now I never call such an act stealing, yet I do n’t insist on my opinion being the correct one, for all such transactions are moonshine, compared with the violation of the constitution. In justice to J. Patterson, I understand the matter was afterward compromised. It may bo, for anything I know to the contrary, that it. was to make that compromise that Lackey & Buchanan indorsed for John Patterson for $500, in the Bank of West Union ; but of this I neither know nor care. I should as soon think of wreaking ^vengeance on a stuffed toad as J. Patterson. I believe there is not a worse citizen in Adams county than J. Patrterson. I am no friend to the devil, the father of lies, nor of any ■of his aids, when I know them. Respectfully, your fellow-citizen, .but humble servant to no one, John Fisher.” ■
    At the March term, 1844, of the Supreme Court in Adams county, the cause was tried by a jury, upon the plea of the general issue, and two special pleas of justification, who found the defendant below not guilty as to the first count, and guilty as to the second -count; and as to the issue joined under the second and third pleas, .they found the defendant below published the matter in said pleas mentioned of his own wrong, and assigned the plaintiff’s damages at 8750.
    During the trial, a bill of exceptions was taken, which is as follows :
    
      “ Be it remembered that, on trial of this cause in the Supreme Court, sitting in this county of Adams, at the March term thereof, A. D. 1844, after the plaintiff had closed his testimony, and among other things had given in evidence the whole of a publication, parts of which were mentioned and set forth in the second count of the declaration, the defendant offered to prove, in mitigation of damages, the truth of certain other portions of said publication, not declared upon, which proof was objected to by the plaintiff, and overruled by the court. The evidence on both sides being closed, the defendant moved the court to instruct the jury that they might take into consideration, in estimating the damages, that, in the publication charged as libelous in said second count of the declaration, the said plaintiff is charged with forgery, antedating a receipt, with intent to defraud Richard Collins and Samuel Brush out of a just claim; and that, having declared upon that portion of said publication, and the plaintiff not having attempted to clear himself of said charge, but had tacitly admitted its truth; which instruction to the jury, the court refused to give. And the jury, having returned into court their verdict in favor of the defendant, upon the first count and in favor of plaintiff, upon *all the issues made upon the second count of the declaration, thereupon the defendant moved the court to set aside the verdict, and grant him a new trial, for the reasons following : 1. The court erred in refusing “to say to the jury that they might take into consideration that, in the publication charged as libelous, in the second cognt, said plaintiff is charged with forgery by antedating a receipt, with intent to defraud Brush and Collins, and has not attempted to clear himself of said •charges, but tacitly admitted its truth.”
    2. The jury have manifestly erred in finding agaiast the truth of that portion of the defense which rested on the record, admitted in evidence.
    3. The jury find the defendant not guilty on the first count, and yet find untrue that portion of the defense which rested on said plaintiff’s having falsely accused said defendant of publishing the handbill in said first count mentioned.
    4. The damages assessed by the jury are excessive in amount.
    5. The court erred in not permitting the defendant to prove the plaintiff’s general reputation of swindling his deputies, when he was marshal of the district of Ohio, and of his having been indicted and convicted of such swindling.
    6. The court erred in refusing to permit defendant to prove the truth of certain portions of the publication in said second count mentioned, when the whole of said publication was in evidence, although portions, the truth of which said defendant offered to prove, were not declared upon; which motion was reserved for decision at Brown county, at March term of said court of Brown county, and which said motion for a new trial was overruled by the court; and, on the overruling of said motion for a now trial, the said defendant excepted, for the reasons aforesaid, and because the finding of the jury, upon the issue made by the defendant’s first special plea, is manifestly against evidence, the defendant having given no evidence of the record of the judgment and proceedings of the suit of Daniel P. Wilkins against said plaintiff, mentioned in *said second plea, and prayed that the bill of exceptions in that behalf might be allowed, which is accordingly done. Upon this bill of exceptions the following errors wore assigned:
    1. The court erred in refusing to permit and allow the said John Fisher, at the trial of sa.id cause, to prove, in mitigation of damages, the truth of the portions of the publication not declared upon in the second count of the declaration, parts of said publication being in said second count declared upon, and the whole thereof being given in evidence by the said plaintiff, to sustain said second count of his said declaration.
    2. The court erred in refusing to permit and allow the said defendant, John Fisher, on the trial aforesaid, to prove in mitigation of damages the said plaintiff’s (John Patterson’s) general reputation of having, when marshal of the district of Ohio, swindled his deputies, and also his general reputation of having been indicted and convicted of such swindling.
    
      3. The court erred in refusing the said defendant, John Fisher, on the trial aforesaid, permission to prove in mitigation of damages any facts tending to show that the plaintiff, John Patterson, was a dishonest man, and of disparaged fame, if said facts did not amount to a justification.
    '4. The court erred in refusing to instruct the jury that, in estimating the damages, they might take into consideration that, in the publication charged as libelous in the second count of the declaration, the said plaintiff, John Patterson, is charged with forgery, by antedating a receipt, with intent to cheat and defraud Richard Collins and Samuel Brush out of their just claim'; and that the said plaintiff, not having declared on that portion of said publication, and not having attempted to clear himself of said charge, has tacitly admitted its truth.
    5. The court erred in refusing to set aside the verdict and grant a new trial upon the said defendant’s motion, for the reasons stated by him, and which 'are fully stated in the foregoing record.
    *6. The court erred in refusing to grant a new trial, because the damages assessed by the jury were excessive.
    7. The court erred in refusing to grant a new trial, because of the inconsistency and contradiction of the verdict of the jury. The verdict is against the defendant, the plaintiff in error, of the publication of the libelous matter charged in the first count of the declaration, and finds all the issues on the second count of the declaration in favor of the said plaintiff, the defendant in error; one of which issues, to wit, the one made by the first special plea of the said defendant, the plaintiff in error, is and was that the plaintiff had falsely charged the defendants with having published the libelous words and matter charged in the said first count of said declaration.
    8. Because the verdict of the jury is and was manifestly wrong and improper, in finding against the truth of the defense that' rested on the record admitted in evidence.
    9. Because the court and jury erred in other matters and in other respects, in the proceedings aforesaid, as appears by the re* .«cord aforesaid.
    Collins & Barreré, for plaintiff in error.
    Hamer, & Debore, for defendant in error.
   Read, J.

As to the first error assigned, the bill of exceptions shows, among other things, that the plaintiff, having given in-evidence the whole of a publication, parts of which were material and set forth in the second count, the defendant offered to-prove, in mitigation of damages, the truth of certain other portions-of said publication not declared upon, which proof was objected to by the plaintiff, and overruled by the court.

In construing bills of exceptions, it is not to be taken for granted that the court erred ; but reasonable inferences are to be drawn in favor of the judgment. What, then, must be the ^conclusion, if we adhere to this well-established and familiar rule ? Simply that the parts of the publication now declared upon, were not relied upon for any puteóse whatever by the plaintiff. If we looked to the bill of exceptions merely, it might fairly be presumed that the matters in the publication not counted upon, were wholly immaterial, and not competent evidence either to aggravate or mitigate damages. But, admit that the parts of the publication not counted upon, contained distinct and separate libels, the bill of exceptions does not show that they were offered in evidence to prove malice or for any other purpose. Distinct and separate libels can not be given in evidence to aggravate damages, because they are the subject of distinct actions. Nor can the truth of distinct libelous matter be given in evidence to mitigate damages; because no such issue is made by the pleadings. But, if it be designed that their truth should affect character, it is not competent, because the general character of the plaintiff only is in issue, and can not be attacked by proof of particular acts. There is no instance in the books of permitting distinct libels, not declared upon, to be admitted as evidence by the plaintiff, except in some case* where the intent is doubtful, and then to show malice. And, when admitted for this purpose, it is expressly laid down that the jury shall not take such libels into consideration, in their estimate of damages. . But, if the intent be manifest (such libels only being admissible to show the quo animo, when the intent is doubtful),, they are not admissible as evidence at all. 3 Starkie on Ev. 870. But in no instance have such libels been admitted to be proven true to mitigate damages. Matters not capable of supporting an action or constituting a justification, may be given in evidence in aggravation or mitigation of damages, as there is no other mode of bringing it before the court and jury. Now it can not bo presumed that the court violated any of these well-known principles of law, unless the bill of exceptions expressly disclose the fact-In the case before us, the nature of the libel forbids any doubt as to the quo animo, and hence the court would be compelled to exclude distinct *and separate libels as proof for any purpose, The fact that all the parts of a publication must come before the court, because certain portions are declared upon as libelous, does not show that the parts not counted upon, were resorted to for any purpose; and, if not competent proof, they were, we are bound to presume, rejected by the court. They certainly were, in this instance, rejected, so far as the defendant was concerned ; and there is no more doubt but they wore rejected as to the plaintiff.

As to the second error assigned:

That the court erred in refusing to permit the defendant to prove, in mitigation of damages, the plaintiff's general reputation of having, when marshal of the United States for the district of Ohio, swindled his deputies ; and also his general reputation of having been indicted and convicted for such swindling.

Such evidence is admissible upon no rule of law. G-eneral reputation of a particular act is not general repute cion. It would be strange, if the truth of the act could not be admitted in evidence to mitigate, that the reputation could; that you should exclude the substance and admit the shadow. The general character of the plaintiff, and not the reputation of particular acts, is only admissible. Particular acts of dishonesty aro not admissible.

This disposes, also, of the third error assigned.

As to the fourth error assigned:

That the court erred in refusing to charge the jury that, in estimating the damages, they might take into consideration the fact, that, in the publication, parts of which were declared upon, there was a charge of forgery against said Patterson ; and that, not having attempted, by evidence, to clear himself of said charge, he had tacitly admitted its truth.

This is a marvelous assignment of error! How could the court charge the jury that the plaintiff had tacitly admitted himself to be guilty of forgery, because he had not introduced proof to exculpate himself from the charge, when that matter ’I'vvas not before the court and jury for consideration, and the state of proceedings and the law forbid any such proof?

The fifth error assigned is, that the court erred in not granting a now trial, upon the ground of misdirection and improperly ruling against evidence, as above stated. This has been considered.

The sixth error assigned is, that the court erred in refusing to grant á new trial on the ground of excessive damages.

In cases where the damages are to be determined by the sound discretion of the jury, in view of all the evidence, the court will not interfere to grant a new trial on the ground of excess, unless the damages are so outrageously gross as to convince the court that the jury must have acted from corruption, or bias, or mistake, or some other improper influence, instead of a sound and enlightened judgment. If men will print scandalous and defamatory matter concerning others, it is the province of a jury to make compensation and correct the evil by their verdict; and it is neither the disposition nor duty of the court to interfere. 'The press should be the pure and enlightened organ of public instruction. To claim that a man may write and publish what he pleases, however scandalous and defamatory, is upon the samo principle that the highwayman desires the privilege to plunder and rob. The constitution has wisely observed this distinction ; and, whilst it secures the liberty of the press, it holds every man responsible for his abuse, and declares that every person, for an injury done him in his reputation, shall have remedy by due course of law, and right and justice administered without denial or delay. It is the sworn duty of the jury to secure this remedy by rendering a verdict of damages in such amount as right and justice demand. Reputation is the sacred right of every person, and a gross and defamatory attack upon that, causes more pain and shocks more rudely all the feelings which spring from the tender and holy relations of life, than an injury to person or property. When defamation shall become so common that men cease to be sensitive of character, it will be evidence of that insensibility which precodes the disolution of the social tie. *The heat and strife of party forms no excuse, and juries should rightly regard such, abuse of the press as endangering our free institutions. If it comes to this, that men, because they happen to entertain different political opinions, shall be permitted to blacken and defame each other’s characters, instead of regarding the fair fame .of all as the best and dearest property of the whole community, it will cast a dark shade over the blessed principle of self-government, which we hope, by our example, to make the common property of the world. The matter before the court had its origin, no ,doubt, in that sort of vulgar and low abuse which has become too common, and which some men regard as a proper exercise of political rights, but which all honorable and honest men should despise.

We are not disposed to withdraw such men from the legitimate action of a verdict of a jury, or in any sense to weaken the example.

The seventh error assigned is in the following words: “The court erred in refusing to grant a new trial, because of the inconsistency and contradiction of the verdict of thq jury. The verdict acquits the defendant (the plaintiff in error) of the publication of the libelous matter charged in the first count of the declaration, and finds all the issues made on the second count in the declaration in favor of the said plaintiff (the defendant in error), one of which issues, to wit, the one made by the first special plea of the said defendant (the plaintiff in error), is and was that the plaintiff had falsely charged the defendant with having published the libelous words and matter charged in the said first count of said declaration.” We may not exactly comprehend this objection, nor have we been enlightened by counsel, nor do we obtain a clue to the matter by looking through this long, tangled, and confused record. If we comprehend the objection, it is this : The declaration contains two counts. The jury find the defendant not guilty on the first count, thereby finding that the defendant had not falsely charged the plaintiff, etc., and find, on an issue joined *under the second, that the defendant did publish the false and defamatory libel named in the first count. How the special plea could be an answer to the second count, by denying the libel mentioned' in the first, is not perceptible, unless the same libel be declared upon in both counts. And how finding the defendant not guilty on the first count, could be injurious to him, is more than we can per-1 coive. The finding may show that the plaintiff should have been found guilty on both counts. But counsel very well know that each count in a declaration, in theory, contains a distinct charge, and that the finding on one cottnt, in no sense involves a finding on the other count.

The eighth and ninth errors assigned, charge errors in all things,' special and general.

We have not been able to find any error in this record.

Judgment affirmed.  