Jones

I concur in the judgment of reversal herein, for the reason that the letter allowed in evidence to contradict the witness Gift was erroneously admitted. It was admitted on the offer of plaintiff to contradict a statement of Gift, brought out on cross-examination by plaintiff, which statement was collateral to the issue. The plaintiff was bound by Gift’s statement, and could not be allowed to contradict it.

The following is the opinion above referred to, rendered in Department Two on the 28th of February, 1890:—

This is an action for libel. The plaintiff, Jones, recovered, under the verdict of a jury, a judgment for two thousand five hundred dollars, from which, and an order refusing a new trial, the defendant appeals.

One of the grounds of the alleged libel was, that the defendant had published of the plaintiff that he had been compelled to leave his former place of residence between two days, in order to prevent a mob from riding him out of town on a rail.

The defendant admitted the publication of this matter, and justified it on the ground of its truth.

On the trial, Mr. Gift, a witness for the defendant, had testified, among other things, that he had denounced the…

Upon rehearing and further consideration of this case, we are satisfied that the court below did err in the particulars pointed out in the opinion filed herein February 28, 1890, and the same will stand as the opinion and order of the court on this appeal.

Beatty, C. J., and Fox, J., dissented.