Again; I do not think the non-declaration of the result of the election is a disability of the governor such as is meant by the Constitution. These provisions do not contemplate or pro- It is simply nonaction, or incomplete action, vide for any officer taking the oath before he by the agencies of the law assigned to vest the is declared elected. Thus, if the president of title in the candidate. It is not like insanity, the senate demand the office on account of a conviction of the officer for crime, continued failure to qualify by the elected governor, the absence or other disability connected with the answer is: There has been no failure to qual-person of the governor. Death, conviction on ify, legally speaking, because no one has as yet become entitled to qualify. How can there be a failure to qualify when no one has been called upon to do so? The words "failure to qualify" mean failure to qualify as required by law, such as would forfeit the office. But the statute has not demanded this qualification until after the declaration of election.

the governor will come on to qualify; whilst | Legislature would elect, that election would the other section as to the president of the date and confer title only from the day of elec senate acting seems to provide for a different tion, and not relate back to the election in Noclass of cases; that is, where the election is com-vember, and thus prove that no person was then plete, but there is a vacancy caused by death elected." or other fact, or a disability preventing his action.

In Ex parte Lawhorne, 18 Gratt. 93, the court, under similar provisions in the Virginia Constitution, held that the clause relating to the lieutenant-governor acting in case of death or other cause disabling the governor, did apply only to a case not provided for by the section authorizing officers to hold over.

Again; this position of President Carr assumes that somebody was elected governor in November last. His petition says either Flem- | ing or Goff was elected. Quite likely this is To succeed he must have somebody elected at that election, so that he may have some one whose place he is to take. But it does not appear that anybody was in fact elected.

SO.

The assertion of his petition that some one was elected, even if not denied in respondent's answer (but it is denied), could not be taken for true, for it asserts a fact which, legally speak ing, cannot be yet known and is not susceptible of proof here.

There is no declaration of the result, and the returns have never been approved or published; their contents are yet sealed and sacred in the keeping of the Joint Assembly, awaiting publication. Can we or President Carr say whether or not they show an election? They may show a tie vote. Is it clear that we can presume, because an election was held, that some one was elected?

Thus, no contingency has arisen, no condition exists, such as to call upon the president of the senate to act as governor. The clause of the Constitution on which he rests is an exception to the general rule fixed by another clause declaring that all officers shall continue to discharge their duties until their successors are elected and qualified; and as he does not come within that exception he cannot act but under said general rule of section 6 of article 4 of the Constitution.

E. Willis Wilson has a right to continue to act as governor until his successor shall come in. We are in this cause called on by both sides to decide, not only whether Carr has title to admit him, but also whether Wilson has title to hold over; and as we see it, we are compelled to pass on Wilson's right to hold over; for it seems certain under these two provisions of the Constitution that if Carr has title to enter into the office, Wilson has no title to hold over. In deciding as to the right of the one, we inevitably decide as to the right of the other.

This case is unlike that of Goff v. Wilson, ante, for there it was a question only of Goff's title. If his title was imperfect by reason of the absence of a declaration of his election, he failed, whether Wilson had title to hold over or not; and we did not in that cause pass on Wilson's right. If Goff's title had been complete, surely Wilson's tenure was at an end; if Goff's title was imperfect he could not be admitted, though Wilson's claim to hold should be weak.

Mention has been made, though it does not seem to be urged, that under section 4 of article 7 of the Constitution, a governor is ineligible for the same office for the term succeeding that for which he was elected, and therefore Governor Wilson is not competent to hold over.

The Judge delivering the opinion in the Court of Appeals of New York in People v. Crissey, supra, says: "At this point it appears needful to determine who was lawfully the alderman of the seventh ward, entitled to occupy the seat for which Morrissey and Fleming contested. We cannot say that either was elected. It is argued that one must have been. That does I consider him holding over under his old not follow. A canvass in which all or a ma- term; it is a prolongation of that. His compejority of the inspectors concurred, or an invest-tency is tested by his eligibility for his old term. igation by a court of justice in which the vote actually and honestly cast was correctly counted, might have resulted in a tie. While that is not probable it is certainly possible. We cannot know. We have no legal evidence before us from which we can give the seat to either by virtue of the election."

He further said: "The votes are not here for us to count. The authority appointed by law has not acted, has certified nothing, and stands equally divided, asserting contrary results, both of which cannot be true.'

"

He also says: "For us nothing is possible except to treat the election as a failure, so far as either party seeks to found a right upon it, and deny to either any resultant benefit from that source."

Under these principles the claim of President Carr that some one was elected, and that he can stand on that fact as a foundation to entitle him to act, is untenable, as, for the purposes of this case, the election is a failure, or has no yet known result; and he must be denied any resultant benefit from that source. And if it should appear there was a tie vote, whereby the

As he was eligible for that, he can hold under his old term and its eligibility and qualification until his successor comes. He holds ex officio.

In Ex parte Lawhorne, 18 Gratt. 85, a pardon was issued by Governor Peirpoint to a convict after Peirpoint's term expired, and the keeper of the penitentiary refused to obey it for that reason. The case went to the Court of Appeals of Virginia. Its Constitution provided that "Judges and all other officers, whether elected or appointed, shall continue to discharge the duties of their respective offices, after their terms of service have expired, until their successors are qualified." Its Constitution also provided that "In case of the removal of the governor from office, or of his death, failure to qualify, resignation, removal from the State or inability to discharge the powers and duties of the office, the said office, with its compensation, shall devolve on the lieutenant-governor." There being no election of a governor- no qualification of one-the court held that Governor Peirpoint should continue in his office beyond his term, notwithstanding the latter provision; and held that he was capable of holding over though

the Virginia Constitution contained the same! For these reasons the demurrer to the return clause, as to ineligibility for a second term, as must be overruled, the peremptory writ of mandamus denied and the petition dismissed.

ours.

APPEAL by plaintiff, from a judgment of

the Hartford County Superior Court in favor of defendant in an action to recover damages for the publication of a libel. Affirmed. The facts sufficiently appear in the opinion. Messrs. D. L. Aberdein and Case, Maltby & Ely, for appellant:

1. In an action for libel, the defendant under the Connecticut Statutes, Rev.1888, § 1116, may give evidence of his intent in making the publication, for the purpose of showing that it was without malice; and this includes the right to show that the libelous language charged was rendered so by a mistake in punctuation. Persons of ordinary intelligence, reading the 2. When an alleged libelous publication offending article in the ordinary way in which consists of several epithets defendant may newspapers are read, would naturally believe be permitted to disclaim any intention to apply that the writer meant to apply each and all the certain of the epithets to plaintiff and to justify epithets used, to the Arnott named in connec3. For the purpose of showing the absence tion therewith; and the writer is responsible for of an improper or unjustifiable motive for the this application of the epithets by the reader, publication of an alleged libel defendant may no matter what may have been the writer's unshow that he derived his information from arti-disclosed intent in his use of the language; and cles in newspapers previously given to the public,

the others.

NOTE.-Copies from other papers. Newspaper reporters are to be judged by the same standard as other persons, in respect to the care to be observed to prevent mistakes in what they give to the public. Park v. Detroit Free Press Co. (Mich.) 1 L. R. A. 599, 21 Ohio L. J. 19.

That the source of information of a newspaper article is a neighboring sheet, from which it was taken as mere matter of news, may be considered by the jury in mitigation or aggravation of damages. Edwards v. Kansas City Times Co. 32 Fed. Rep. 813.

Where the published article was taken from a neighboring sheet as a mere matter of news, and with no circumstances of aggravation or malice, the plaintiff was entitled to compensation for the injury suffered, and the manner of the publication was to be considered by the jury, either in mitigation or aggravation of damages. Idem.

The fact that an article published in a newspaper and charged as libelous was copied from another paper, without any actual intention of doing harm, may be shown in mitigation of damages; but this fact is no justification. Regensperger v. Kiefer (Pa.) 6 Cent. Rep. 266; Edwards v. Kansas City Times Co. 32 Fed. Rep. 814.

no matter even if the reader's application is other answer constituting a defense; because an answer merely setting up mitigating circumstances would not raise an issue. Newman v. Otto, 4 Sands. 669; Maretzek v. Cauldwell, 19 Abb. Pr. 40; Van Benschoten v. Yaple, 13 How. Pr. 97.

Under Code, § 2682, the same matters can only be pleaded in mitigation in actions of slander, which are recognized as such by law, independent of the Code. Marker v. Dunn, 68 Iowa, 720.

Evidence in mitigation of damages.

It is always proper to allow the defendant to prove an absence of malice in order to mitigate the damages. Knott v. Burwell, 96 N. C. 272.

Mitigating circumstances are such circumstances as the well established rules of law allow to be given in evidence in mitigation of damages. Graham v. Stone, 1 Code Rep. N. S. 181; 6 How. Pr. 15; Blickenstaff v. Perrin, 27 Ind. 527; Townshend, Libel & Slander, § 361, p. 616.

In an action to recover damages for a libel, it is competent for the defendant to introduce evidence in mitigation of damages, to show the provocation which induced him to publish the libel; but this provocation must originate in the same subject matter out of which the libel arose, or be closely

For malice as an element, see Byam v. Collins, 2 connected with it. Knott v. Burwell, 96 N. C. 272. L. R. A. 129.

Mitigating circumstances may be pleaded, under the Revised Statutes, and are admissible in evidence to reduce the amount of damages. Trimble v. Foster, 2 West. Rep. 470, 87 Mo. 49.

In New York, and in some other States, by statute the defendant may, in connection with a general denial, and with or without a defense of justification, set up in his answer mitigating circumstances to reduce the amount of damages. Code Proc. 165; Bush v. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 12 N. Y. 67; Dolevin v. Wilder, 34 How. Pr. 488, 7 Robt. 319; Van Benschoten v. Yaple, 13 How. Pr. 97; Heaton v. Wright, 10 How. Pr. 79; Ayres v. Covill, 18 Barb. 260; Bennett v. Matthews, 64 Barb. 410; Townshend, Libel & Slander, § 361, p. 615.

But it would seem that a defendant cannot set up mitigating circumstances alone, without any

When slanderous words do not, on their face, purport to be spoken upon the authority of another, but are spoken as of the defendant's own knowledge, evidence is not admissible to show, in mitigation, that they originated with another. Marker v. Dunn, 68 Iowa, 720.

In actions for defamation, under the former system of pleading, evidence offered to sustain a plea of the general issue could not be considered in mitigation of damages; but this has been changed by Code, § 266. Knott v. Burwell, 96 N. C. 272.

The question whether the facts set up are not such as should be permitted to be given in evidence in mitigation, is properly to be decided by the judge on the trial of the issue of fact. Newman v. Harrison, 1 Code Rep. N. S. 184 note; Fry v. Bennett, 5 Sandf. 54.

erroneous when tested by the nicer rules of | against him. It is not denied now that since grammatical construction.

Rodgers v. Kline, 56 Miss. 808; Sternau v. Marx, 58 Ala. 608; Townshend, Libel & Slander, § 139; Odgers, Libel & Slander, 107.

1872 his expenses have been paid by the Republican party while he came home and voted the Democratic ticket when he voted any. This piece of news came like a thunderbolt upon his Republican backers."

The defendant had a verdict. The plaintiff appeals.

The question is always: How would ordinary Englishmen, previously unacquainted with the matter, fairly understand the words? Odgers, Libel & Slander, chap. 3, p. 93. The statute, § 1116, provides as follows, viz.: This court has fully explained what the Leg-"In every action for a libel the defendant may islature meant in saying that the defendant give proof of intention; and unless the plaintiff may give proof of intention. shall prove either malice in fact ***he shall recover nothing but such actual damage as he may have specially alleged and proved."

Hotchkiss v. Porter, 30 Conn. 414. Defendant could not, by his simple disavowal, settle the question of construction as to the first two epithets and then proceed to justify the use of the remaining one.

Odgers, Libel & Slander, 169, chap. 7. The newspaper articles were not introduced for the purpose of mitigating damages, but to show intent and want of malice. For this purpose they were clearly inadmissible.

Lothrop v. Adams, 133 Mass. 471; Hatfield v. Lasher, 81 N. Y. 246; Kinney v. Roberts, 26 Hun, 170.

Messrs. A. P. Hyde and Briscoe & Andrews for appellee.

Pardee, J., delivered the opinion of the

court:

The plaintiff was an unsuccessful applicant for the office of postmaster. Mr. W.W. Eaton opposed his appointment. Concerning the matter the defendant published in a newspaper called The Bridgeport Daily Standard the following words, viz.:

"Mr. Eaton might indorse a partisan and would be more likely to do so than not; but he would not knowingly indorse a thief, a jail bird or a sneak like Arnott."

At common law it is in some cases the right of the defendant in an action for libel under proper pleadings to prove his intentions for the purpose of rebutting wholly, or in some measure, the malice presumed by law or attempted to be proven; for instance, under the general issue the defendant might prove in justification that the publication was a privileged communication, and such facts and circumstances so closely attending the speaking or the publishing as to prove the intent.

In other cases the defendant could prove his intention only in mitigation of damages; as that the libel was printed by mistake, which was forthwith corrected, or that he published what others had previously published, believing it to be true.

The cited statute was doubtless enacted in the interest of publishers of newspapers. It intended to furnish them a measure of protection in the publication of current news, criticisms upon public men and measures, and comments upon matters of public interest. It placed such publications upon the same plane with privileged communications in this respect, viz.: under proper pleadings allowing the deThe defendant admitted the publication, also fendant to prove in justification that the pubthat the plaintiff was the Arnott referred to; lication was intended merely as an item of also that there was no reason for the applica- news; or of fair and just criticism upon men tion of either of the epithets 'thief" or jail and measures; and if he could make such bird" to him; and denied that there was any proof, it should rebut the presumption of malsuch application either in fact or intent; insist-ice raised by the law from the publication of ing that every person of ordinary intelligence would understand that these were applied to some unnamed persons and that only the epithet "sneak" was applied to him-justifying this last.

i Upon the trial to the jury, notwithstanding the plaintiff's objections, the court as tending to prove the absence of malice but not for the purpose of construing or modifying the language, allowed the author of the publication to testify that he did not therein intend to charge the plaintiff with being either a "thief" or a "jail bird;" also allowed the defendant to disavow these epithets and prove the truth of the epithet "sneak;" also, as tending to prove absence of malice, allowed the defendant to read to the jury the following publication made in another newspaper prior to the publication by the defendant of the words complained of, viz.:

"The Democrats think they have virtually fixed Arnott's postoffice aspirations. Elam O. French was sent to Washington to urge the charges against Arnott. Dr. Pease is with him, and both men are quite harmonious in their effort to defeat the nominee. Thirteen specific charges of dishonesty in politics are made

a false and defamatory article, and put upon the plaintiff the burthen of proving by other and additional evidence an improper and un justifiable motive.

We think that the interpretation put upon this statute in Moore v. Stevenson, 27 Conn. 14, permitting the defendant in an action for libel, to prove, in justification, that his intention in publishing what he admits to be a libel was merely to give what he supposed to be current news or make what he supposed to be a just and fair criticism upon the conduct of the plaintiff, will also include permission to prove for the same purpose that he had never heard any person call the plaintiff a thief; that he had never thought nor intended to say that he was one; and that he had only been made to say what was not in his mind by a mistake in punctuation.

Honest mistakes in punctuation, in believing and republishing what has been previously published, and in criticism, are all and equally within the protection of the statute. Damages are to be graduated by the degree to which the motive is unjustifiable and improper.

The question of fact whether the words as punctuated and published do or do not charge

:

The counsel for the plaintiff in their briefcurred.

MISSISSIPPI SUPREME COURT.

APPEAL by plaintiffs, from a judgment of in contemplation of law the probable" gains