Westerfield

Action for libel, in which plaintiff had verdict and judgment. The lower court set the verdict aside and granted a new trial upon the ground, as expressed in its order, “of error of law occurring at the trial, consisting in the admission by the court, as evidence, of the publication in the defendants’ paper of October 18, 1895, of an article headed, 'After the Stuff,’ and relating to plaintiff, and the commencement of this action, and not on the ground of the insufficiency of the evidence to justify the verdict of the jury.”

Plaintiff appeals from the order, contending that the article in question was properly admitted in evidence, and that the order was erroneous.

The article counted upon in the complaint as constituting the libel was published in the defendant’s newspaper of October 4, 1895, and was in these words:

The answer admitted the publication of the article counted upon, affirmed its truth, and justified upon that ground; but alleged in mitigation that the publication was made without any ■actual malice, but in good faith, and only after an investigation which satisfied defendants of the truth of the matters published.

Upon the issue of actual malice thus made,…