294. A new trial will not be granted because a verdict for defendant should have been for plaintiff with nominal damages.1 A new trial will be granted to admit newly discovered evidence to support a defense of not guilty, but not to support a justification. A new trial was refused where since the verdict for the plaintiff he had been convicted, partly on the evidence of the defendant, of the offense charged. A new trial was refused where a witness for the plaintiff had since the trial been convicted of perjury. Where plaintiff obtained a verdict for one shilling damages, in consequence, as he supposed, of the admission of improper evidence, it was held that having recovered a verdict, he could not insist on his objections to evidence, and a new trial was refused. § 295. Actions for slander and libel are in the nature of penal actions, and though the jury find for the defend ant against the weight of evidence, a new trial for such a the Y. 178; 6 Trans. App. 202; 6 Abb. but ordered the verdict to be entered for the plaintiff, with £50 damages. 1 Patton v. Hamilton, 12 Ind. 256; Rundell v. Butler, 10 Wend. 119. See, however, Levi v. Milne, 4 Bing. 195. Courts interfere with verdict to prevent manifest injustice. (Moore v. Mank, 3 Bradw. [Ill.] 114.) 2 Beers v. Root, 9 Johns. 264. 3 Symons v. Blake, 2 C. M. & R. 416; 4 Dowl. Pr. Cas. 263; 1 Gale, 182. Eakins v. Evans, 3 Up. Can. Q. B. Rep. O. S. 383. Rogers v. Munns, 25 Up. Can. Q. B. Rep. 153; and see Smith v. Kerr, 1 Barb. 155; Case v. Marks, 20 Conn. 248. Where plaintiff had a verdict for five shillings, a new trial was granted, the court recommending a stet processus. (Shaver v. Linton, 22 Up. Can. Q. B. R. 177.) In Hogle v. Hogle (16 Up. Can. Q. B. R. 518), the plaintiff had a verdict for fifty shillings; the court above held that the declaration did not disclose a cause of action, refused a new trial to give defendant his costs, but arrested the judgment. cause is never (seldom) granted.1 To warrant a new trial on the ground that the verdict is against evidence, it must be a very clear case. A new trial was granted because the language published did not warrant the innuendoes; and so where the innuendo was disproved.* § 296. In New York, if the plaintiff recovers less than $50 damages, he can recover no more costs or disbursements than damages. The defendant may, at any time before verdict, offer to allow judgment to be taken against him for a certain sum with costs; the non-acceptance by plaintiff of such an offer will subject him to costs subsequent to its service, unless he recover a more favorable judgment. In England, if the damages in an action for slanderous words are less than forty shillings, the plaintiff, by Statute 21 James I, recovers no more costs than damages; the statute was held not to apply to actions where the special damages are the gist of the action, nor to slander of title nor to libel." 1 Ex parte Baily, 2 Cow. 479; Hurtin v. Hopkins, 9 Johns. 36; and see Hurtert v. Weins, 27 Iowa, 134. It is only on the very strongest grounds a verdict for defendant will be set aside as against evidence on a question of fair comment. (Odger v. Mortimer, 28 Law Times, N. S. 472; Pearson v. Stingo, 7 Vict. Law R. L. 9.) 2 Root v. King, 7 Cow. 613; affirmed 4 Wend. 113; Paddock v. Salisbury, 2 Cow. 811; Kelly v. Partington, 4 B. & Ad. 700; Fisher v. Clement, 10 B. & Cr. 472; Blackburn v. Blackburn, 4 Bing. 395; 1 M. & P. 33; Broome v. Gosden, 1 C. B. 728; Hunt v. Bennett, 4 E. D. Smith, 657. 3 Yrisarri v. Clement, 3 Bing. 432. Johnston v. McDonald, 2 Up. Can. Q. B. R. 209. There cannot be a new trial upon one of several issues. (Morrison v. Harmer, 4 Scott, 530.) On motion for a new trial on the ground that the verdict is contrary to the evidence, the court is to pass upon the effect of the language published. (Donaghue v. Gaffy, 54 Conn. 257.) 5 Code Civ. Pro. § 3228; see § 289, ante. • Code Civ. Pro. § 738. As to costs in the courts of England, Skelton v. Seward, I Dowl. 411; Skinner v. Shoppee, 6 Bing. N. C. 131; Simpson v. Hurdiss, 2 M. & W. 84; 5 Dowl. 304; Foster v. Pointer, 8 M. & W. 395; Dowl. 28; 9 C. & P. 718; Empson v. Fairfax, 3 Nev. & P. 385; Dadd v. Crease, 2 Cr. & M. 223; 4 Tyrw. 74; S. c. Dann v. Crease, 2 Dowl. 269; Lafone v. Smith, 4 Hurl. & Nor. 158; Savile v. Jardine, 2 H. Black. 531; Halford v. Smith, 4 East, 567; Richards v. Cohen, I Dowl. 533; Goodall v. Ensell, 3 Dowl. Pr. Cas. 743; Grenfell v. Pierson, I Dowl. Pr. Cas. 406; Turner v. Horton, Willes, 438; Andrews v. Thornton, 8 Bing. 431; Forbes v. Gregory, 1 Cr. & M. 435; I Dowl. 679; Harrison v. Bush, 5 E. & B. 344; Biddulph v. Chamberlayne, 17 Q. B. 351; Kelly v. Partington, 5 B. & Ad. 645; 2 Nev. & M. 460; Prynne v. Brown, I Dowl. Pr. Cas. N. S. 680; 2 Stark. Sland. 113; § 296a. Where a plaintiff in an action for slander or libel has had an opportunity of trying the action upon its merits, and has consented to a nonsuit, and afterwards brings a second action for substantially the same cause, leaving the costs of the former action unpaid, the court may stay the proceedings in the second action until the costs of the first action are paid,' and this, although the second action is in a different court from that in which the first action was brought.2 Stat. 58 Geo. III, ch 30; and by statute 3 and 4 Vict. ch. 24, § 2, on a certificate by the judge that the injury was willful and malicious, the plaintiff may recover costs, although the verdict is for less than forty shillings; as to this see Forsdike v. Stone, Law Rep. 3 C. P. 607; and see 30 and 31 Vict. ch. 142; Ings v. London and So. West. R. R. Law Rep. 4 C. P. 17; Gray v. West, Law Rep. 4 Q. B. 175; Sampson v. Mackay, Id. 643; Marshall v. Martin, Law Rep. 5 Q. B. 239. In Dicks v. Brooks (15 Ch. Div. 41), reference is made to a case of slander or libel where plaintiff had a verdict for one farthing and costs were given to defendant. As to costs in Vermont, see Nichols v. Packard, 16 Vt. 147. In Indiana, see Shimer v. Bronnenburg, 18 Ind. 363. In Arkansas, Hill v. Patterson, Hemp. 173. 1 Hoare v. Dickson, 7 C. B. 164; 15 Law Jour. N. S. 158, C. P. Prowse v. Loxdale, 3 B. & S. 896. After judgment for defendant and writ of error by plaintiff, the defendant was discharged as a bankrupt; on motion plaintiff was allowed to discontinue without costs. (Labrow v. Worman, 5 Hill, 373, citing Hart v. Storey, 1 Johns. 143; Case v. Belknap, 5 Cow. 422; Honeywell v. Burns, 8 Id. 121.) The plaintiff may withdraw a juror. The effect of withdrawing a juror, according to the English prac. tice, is that no new action for the same cause can be maintained. (Strauss v. Francis, 4 F. & F. 939.) In Dawkins v. Prince Edwards, &c. (1 Q. B. D. 499), the action was for an alleged conspiracy to make false statements respecting plaintiff, an army officer, on half pay. On defendant's motion it appearing that the action was for acts done by defendant in performance of his duty as a member of a Military Court of Inquiry, the action was stayed as an abuse of the process of the court, and see Castro v. Murray, L. R. 10 Ex. 213. CHAPTER XII. PARTIES. Question as to parties anticipated-Action by alien-Outlaw-Rebel-Executors or administrators-Married woman-Husband and wife-Partners-General rule as to joinder-Action against husband and wifeContribution. 297. The questions who may sue and who may be sued, of course, generally depend upon the prior questions of rights and liabilities, and, therefore, to some extent, the question of parties has been anticipated.1 Subject to any exceptions which have been or may be mentioned, the rules as to parties which prevail in actions for torts generally apply to the actions for slander and libel." § 298. It was held that an alien friend, although residing in a foreign country, might maintain an action for a libel published in England. Where the plaintiff in an action for libel was at the commencement of the action an outlaw, of which the defendant was ignorant until 1 Ante, §§ 115. 119, notes: and see post, note 6, p. 533. The proprietor of a newspaper may be sued for what appears in his paper without joining the author of the article as defendant. (Ludwig v. Cramer. 53 Wis. 193.) Each person injured by the same libel has a separate cause of action and must sue alone. (Robinett v. McDonald, 65 Cal. 611.) An action for slander cannot be maintained against a mutual aid association. (Gilbert v. Chrystal Fountain Lodge, 4 So. East. Rep. 905 [Ga.].) 2 In New York, actions (with a few exceptions) must be in the name of the real party in interest, therefore an answer that plaintiff is not the real party in interest, but the action is prosecuted by some one else in plaintiff's name, was held to be relevant. (Moody v. Libbey, 1 Abb. N. C. 154; see § 303. post.) 3 Pisani v. Lawson. 6 Bing. N. C. 90; 8 Dowl. 57: 8 Scott, 182: see Burnside v. Matthews, 54 N. Y. 78. after notice of trial, the court after the trial stayed the proceedings, but removed the stay on the outlawry being reversed.1 In an unreported case in New York (Cummings v. Bennett), it being shown that the plaintiff in an action for libel was an unpardoned rebel, the court at special term made an order dismissing the complaint, but the general term reversed the order. In an action for words imputing murder, the court allowed the defendant until the next term to plead, upon the ground that the plaintiff was to be tried for the alleged murder on an indictment then pending.2 $299. By the common law, actions of tort die with the person, "all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender," and this rule applies to actions for slander and libel, except in those States where a different rule is prescribed by statute. In New York, certain actions of tort, except slander and libel, survive. But the death of a plaintiff after a judg 1 Somers v. Holt, 8 Dowl. Pr. Cas. 506; see Reg. v. Lowe, 8 Ex. 697. In an action for slander of an infant, the father having been admitted to sue as prochein amy, and afterwards it appearing that he had taken the benefit of the insolvent debtor's act, and had since had no occupation, the court, in the absence of anything to satisfy them that no fitter person could be obtained, vacated the appointment, with leave to move to reappoint the father, or substitute some other person. (Duckett v. Satchwell, I Dowl. & L. 980; 13 Law J. N. S. Exch. 224; 8 Jur. 408.) 224. 2 Sibson v. Nivin, Barnes' Notes, Mansfield, J., Humbly v. Trott, I Cowp: 375m. Saund, 316 a, 6th ed.; Nettleton v. Dinehart, 5 Cush. 543; 287. At common law, where there is judgment against the defendant, and he appeals, and after the appeal the defendant dies, the judgment dies with him. (Faith v. Carpenter, 33 Ga. 79.) 52 Rev. Stat. of N. Y. 447, §§ 1, 2. By statutes in Ohio and Maryland, the right of action for slander or libel does not abate by death of plaintiff. (Alpin v. Morton, 21 Ohio, N. S. 536.) Contra, in Massachusetts. (Cummings v. Bird, 115 Mass. 346.) And semble, Arkansas. In Ireland v. Champneys (4 Taunt. 884) an action for libel, after interlocutory judgment and writ of inquiry executed, the plaintiff died; held that final judgment could not be entered, the suit having abated by the plaintiff's death. (See Kramer v. Waymark, Law Rep. 1 Exch. 243.) After a judgment for defendant in an action for libel, and a reversal of that judgment in the Court of Appeals, and new trial ordered, the defendant died; held that plaintiff could not revive the action against defendant's |