#### NEWBRAUGH *v.*CURRY.

Libel — declaration «pon — omitting proof — non suit — quere, as to provoking publications by plaintiff — divided court — hearsay—evidence.

In case for a libel the plaintiff is only bound to declare upon such parts of the publication as are claimed to be libellous, unless the part omitted so explains the publication as to show an innocent intention.

If the plaintiff has negligently omitted to prove that he was the person alluded to in the publication the court will permit him to supply it rather than order a non suit.

Qwere, whether publications by the plaintiff reflecting on the defendant, provoking the publication declared upon, are evidence?

Where the court is divided upon the admission of evidence, the objection fails.

Qwere, if it be competent for the defendant in a libel suit charging falsehood, to prove that a third person told him that he would not believe plaintiff under oath.

It will require a very strong case to induce the court to grant a new trial in tort for inadequacy of damages.

Libel for publishing of the plaintiff in the *Ohio*Sun,4 he has put the seal of reprobation on his own character for truth and veracity, and also I have been told he is not to be believed when under oath,’ Plea, not guilty.

The plaintiff having produced the paper containing the libel, and proved the publication of the piece, containing among other things, the matter declared upon, offered to read the paper.

*Fox,*objected,

the paper offered is not the same declared on, it is not permitted a party to select out a sentence, count upon it, and omit all the explanatory sentences, published in connection with it. He cited 1 *Saund. R.*121, *n. s.*2 *Stark. Ev.*858.

*Fishback,*contra.

*Fox,*

moved for a non suit, because there was no evidence to show ' that the publication was of the plaintiff.

By the Court.

If the facts omitted do not so explain the parts declared upon, as to make its meaning other than libellous, it may be admitted, but the plaintiff need only read what he relies upon, the defence can read the residue if they wish.

The plaintiff read that part of the publication declared on and rested.

The plaintiff asked and obtained leave to supply the omission, as it was accidental.

The defendant then read the residue of the publication to show who was intended, and then called a witness who proved that the publication alluded to the plaintiff. ■

*512Fishbach,

objected.

*Jolliff*and Fishbach, for the plaintiff.

*Fox,*contra.

The defendant then called a witness with several newspapers, called the Times, containing articles of the plaintiff, some signed by his name, and some with the signature of ‘ Brutus,’ which he said were published by the plaintiff.

Wright, J.

Thought the piece signed by the plaintiff, admissible, as showing the provocation for defendant’s publication, and the other also admissible on the same ground, if the court was satisfied it was the plaintiff’s.

Collett, C. J.

Thought both inadmissible.

Defendant then offered to prove that a third person told him, that he heard Demitt say that Newbraugh 'was not to be believed when under oath.

The plaintiff objected.

Collett, C. J.

Was for admitting the evidence in mitigation of damages.

Wright, J.

If the defendant wish to prove the words true, or that he published them on the authority of another, he should have justified; but there is no plea of justification. If it be only designed to show circumstances inducing general belief in the truth of the charge, though not true, that would be admissible, but that is not the claim of the defendant; he only Wants to prove that a stranger told him the plaintiff was not to be believed on oath. I think the evidence inadmissible: but as the court is divided the objection fails.

The witness then testified, that he heard Demitt say before the publication, ‘neither me nor mine shall stand security for that man, for I would not believe him under oath.’

Verdict for. the plaintiff $4 75.

The plaintiff moved for a new trial, because the damages are grossly inadequate.

Collett, C. J.

Damages are for the jury; there is no certain measure of their amount. The case must be a strong one to induce the court to set aside a verdict because of the inadequacy of the damages. We do not think this case calls for our interference. Motion overruled.