(99 Fed. 905.) EDWARDS v. BATES COUNTY. (Circuit Court of Appeals, Eighth Circuit. February 13, 1900.) No. 1,166. 1. MUNICIPAL BONDS-PROOF OF OWNERSHIP-POSSESSION. Possession of municipal bonds payable to bearer is evidence of ownership, and their production by the plaintiff on the trial of an action based thereon is sufficient, prima facie, to establish his ownership at the time the action was commenced. 2. EVIDENCE-STATEMENTS OF THIRD PARTIES-RECORD OF FORMER SUIT. In an action on negotiable municipal bonds, the record of a prior action, brought against the defendant by a third person on the same bonds, and dismissed before the present action was commenced, is not admissible in evidence to impeach the plaintiff's ownership of such bonds. Even if the former suit had not been ŝo dismissed, the allegation of ownership by the plaintiff therein in his petition was merely a statement by a stranger to the second action, not admissible to affect the rights of the parties thereto. In Error to the Circuit Court of the United States for the Western District of Missouri.. The plaintiff in error, James C. Edwards, brought an action against the defendant in error, the county of Bates, upon two bonds and certain coupons issued by the county, and the court rendered a judgment in favor of the county on the ground that the plaintiff was not the owner of the bonds. The writ of error was sued out to reverse this judgment. T. K. Skinker, for plaintiff in error. T. B. Wallace (William H. Wallace, on the brief), for defendant in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. SANBORN, Circuit Judge. There is no principle of law or of equity more essential to the protection of the life, liberty, and property of the citizen than the established rule which prohibits the receipt of evidence of the statements of strangers, whether verbal or written, to determine the issues between, and to establish the rights of, the parties to an action. It is vital to the security of person and of property that the repetition of the statements of third par ties shall not be taken as evidence to sustain or impeach the rights of litigants, and that only after due notice and opportunity for crossexamination of the very parties whose statements are sought, and then only under the solemnity of an oath or affirmation, shall their averments become evidence. The crucial issue in this case was whether or not, on October 5, 1891, when he commenced this action, the plaintiff in error, James C. Edwards, was the owner of two bonds for the sum of $1,000 each, and certain coupons attached thereto, which had been issued by the defendant in error, the county of Bates, in the state of Missouri. The bonds and coupons were payable to bearer, and at the trial the plaintiff produced and read them in evidence. Possession of commercial securities is evidence of ownership, and the production of these bonds and coupons by the plain 40 C.C.A.-11 tiff at the trial was sufficient proof, in the absence of countervailing evidence, to determine this issue in his favor. To overcome this proof the defendant in error offered in evidence, over the objection of the plaintiff that it was incompetent, and did not tend to prove that he was not the owner of the bonds and coupons, the record of an action in the court below brought by one Norman De V. Howard, through Mr. T. K. Skinker, the attorney for the plaintiff in this case, against this defendant, on November 13, 1889, on the same bonds and on some of the coupons involved in this action. That record disclosed the fact that this action brought by Howard had never been tried, and that it was dismissed on March 2, 1891. The objection to this record was well taken. The statement or claim of Howard in his petition in that record that he owned the bonds and some of the coupons was hearsay. It was made when he was not a witness, without notice to the plaintiff in this case, without opportunity for cross-examination, and it was not under oath or affirmation. The facts that he made this statement to an attorney at law, that his attorney wrote it out and filed it in the court below in the form of a petition, and that the clerk of the court produced it at the trial, add nothing to its competency as evidence in this case. In the last analysis the record amounts to nothing more than this: that the clerk of the court says that Mr. Skinker said in the petition he filed for Howard that Howard said in 1889 that he owned the bonds and some of the coupons. Numerous repetitions of hearsay do not give it competency as evidence, and the fact that a third party has brought an action against a defendant, in which he avers that he owns the same property, and is entitled to recover on the same claim or demand, on account of which the plaintiff sues, is no evidence against the latter either that he does not own the property or that his claim is not well founded. As to him, such an averment is mere hearsay. There is another reason why the record in Howard's case was improperly received, and that is that it was irrelevant. Bonds and coupons payable to bearer pass from hand to hand rapidly, and with much facility. The question in the case was not the ownership of the plaintiff in 1889, but in October, 1891, when he commenced this action. He established his ownership by the possession and production of the bonds and coupons. Now, even if it were conceded that Howard owned them on November 13, 1889, when he commenced his action, that fact would not be inconsistent with the plaintiff's ownership in 1891, and it would be irrelevant to the issue in this case, because the presumption arising from the plaintiff's possession would be that the title had been transferred from Howard to him before he brought his action, especially in view of the fact that Howard dismissed his action six months before this action was brought. This record in Howard's action seems to have been the only evidence received at the trial which tended to refute the plaintiff's proof of ownership, and its receipt was a fatal error. The judgment is accordingly reversed, and the case is remanded to the court below, with directions to grant a new trial. (98 Fed. 925.) SUN PRINTING & PUBLISHING ASS'N v. SCHENCK. (Circuit Court of Appeals, Second Circuit. January 5, 1900.) 1. LIBEL-OTHER PUBLICATIONS. No. 79. Evidence of previous publications by others of other or the same libelous matters charged by defendant is not admissible in reduction or mitigation of damages.1 2. SAME-DEFENSES IN MITIGATION. Defenses, though called by the pleader "defenses in mitigation of damages," are not such, no matter pleaded having a tendency to show that defendant had acted in good faith in making his publication, believing it to be true, or under an honest misapprehension or inadvertence. 3. SAME. A defense to publication of libel, charging indictment of plaintiff with his partner, B., for forgery, alleging that plaintiff and B. had been guilty of forgery, and that on the day of publication of the libel B. was indicted, is not good in mitigation, it not being alleged that defendant was led by error to suppose the indictment against B. was against plaintiff, and that the publication was on that supposition. 4. SAME-DEfenses. It is no defense to a libel that plaintiff has been guilty of offenses other than those imputed to him, though of a similar character.1 5. SAME-MITIGATION. Only facts known to the defendant at the time of the publication, and which might have influenced him in making the statements, are available in mitigation of damages. The interposition in bad faith of defenses not proved to a libel may be considered in aggravation of damages. A plea that the publication was substantially true, not being sustained, is evidence of actual malice. Defendant, in action for libel for publishing statement that plaintiff had been indicted for forgery, having pleaded that plaintiff and his partner, B., had been previously indicted for a misdemeanor, and that on the day of publication B. was indicted for forgery, and having introduced the indictments in evidence, plaintiff may show that before the answer, though after the publication, the first indictment was dismissed, and that there was a verdict of not guilty on trial of the second; it, while in one view merely tending to disprove worthless facts which defendant had attempted to establish. in another view tending to discredit the good faith of the pleader, and therefore to aggravate damages. 9. DAMAGES-Review. The amount of damages or the denial by the trial court of motion for new trial on the ground of excessive damages cannot be reviewed by the circuit court of appeals. In Error to the Circuit Court of the United States for the Southern District of New York. Franklin Bartlett, for plaintiff in error. 1 See note at end of case. Before WALLACE and LACOMBE, Circuit Judges. WALLACE, Circuit Judge. This is a writ of error by the defendant in the court below to review a judgment entered upon the verdict of a jury for the plaintiff in an action of libel. The defendant was the proprietor of the Evening Sun newspaper, and in the issue of January 29, 1895, published of and concerning the plaintiff the following paragraph: "The regular grand jury to-day handed up two additional indictments for forgery against Col. H. C. Beecher and Vincent R. Schenck, of the defunct American Casualty Insurance & Security Company." The defendant, in its answer, admitted the publication of the paragraph, and pleaded several defenses in mitigation of "any damages to which the plaintiff might otherwise appear to be entitled." Among these defenses the answer alleged that the paragraph was substantially true, and that the plaintiff, having formerly been a member of the firm of Beecher, Schenck & Co., composed, besides himself, of Henry B. Beecher, John W. Taylor, and William E. Midgley, which firm was the agent and business manager of the American Casualty Insurance & Security Company, was, in the month of January, 1895, prior to the publication of the article complained of, indicted with Beecher, Taylor, and Midgley, by the grand jury of the city and county of New York, for a misdemeanor; and that the misdemeanor for which the plaintiff was so indicted consisted in having knowingly concurred in making and publishing a written report and statement of the affairs and pecuniary condition of the said company containing divers material statements which were then and there wholly false and untrue, as he well knew. Another defense so pleaded was that, being a member of said firm of Beecher, Schenck & Co., Beecher, with the knowledge and complicity of the plaintiff, did feloniously falsify certain entries or applications made in the application book of said Casualty Insurance & Security Company, which the plaintiff knew to be false and untrue; and two certain indictments were found on the 29th day of January, 1895, against the said Beecher for forgery in the third degree therefor by the grand jury of the city and county of New York. Another defense so pleaded was that prior to the publication of the paragraph complained of the defendant had published various articles in the Evening Sun concerning the plaintiff in reference to his connection with the said American Casualty Insurance & Security Company, to wit, in the issue of January 24, 1895, two separate paragraphs, entitled, respectively, "Beecher Surrenders" and "Four Under Indictment," and in the issues of January 24 and 25, 1895, paragraphs entitled "Rumored Indictments" and "Four Indicted Financiers"; and after the publication of such former articles the plaintiff had no reputation, character, or standing in the community which could have been damaged by the publication of the article complained of. Another defense so pleaded was that, prior to the publication of the libelous article, certain publications had been made in other newspapers, stating that the plaintiff had been indicted for misdemeanor in making a false report of the affairs of the American Casualty Insurance & Security Company, and that, after said publication, the plaintiff had no reputation or character which could have been damaged by the publication of the article complained of. Several of the assignments of error impugn the rulings of the trial judge in respect to the sufficiency and effect of these defenses. Upon the motion of the plaintiff, he struck out the last defense. In his instructions to the jury he charged them that, if they found that defenses set up in the answer had not been proved, and were set up in bad faith, that circumstance could be considered in aggravation of damages; and he declined to charge the contrary, as requested by the defendant. He also instructed them that the answer of the defendant might be considered by them upon the question of exemplary damages as tending to show actual malice in the publication of the paragraph. A defendant in an action of libel is responsible in damages for his own wrong, and not for the wrongful acts of others, who have published similar libels of the plaintiff; and the libels by the others neither add to nor detract from the wrong of the defendant. Consequently, it cannot be material whether these other wrongful acts have been committed previously or subsequently to that of the defendant, unless the proposition can be maintained that the reputation of the ag grieved party, having already been shattered by the previous libels, is less susceptible of further injury, and therefore that the evidence should be admitted as tending to reduce the damages. The answer to this proposition is that it is purely hypothetical, and is without any sanction in practical experience. No one can say which of many defamations has destroyed or materially impaired a reputation; or whether, but for the last, the earlier ones would have made any grave impression upon the opinion of the public. It would be idle to submit such an inquiry to a jury. Moreover, iteration, if long enough persisted in, will at last accomplish its result; and every repetition of a slander adds to its malign effect. "It is the successive repetitions that do the work. A falsehood often repeated gets to be believed.” Kenney v. McLaughlin, 5 Gray, 5. Proof of the bad character of the plaintiff, and, according to some of the authorities, proof of his bad reputation in respect to the matters which are charged in the libel, is competent. Such evidence is received because one whose character is bad is not entitled to the same measure of damages as one of unblemished fame. The principle, however, does not countenance the admission of previous rumors of his guilt of the offenses charged in the libel. Wright v. Schroeder, 2 Curt. 548, Fed. Cas. No. 18,091; Root v. King, 7 Cow. 613; Inman v. Foster, 8 Wend. 602; Peterson v. Morgan, 116 Mass. 350; Scott v. Sampson, 8 Q. B. Div. 491; Wolcott v. Hall, 6 Mass. 518. Evidence of previous publications by others of the libelous matters charged by the defendant is, upon principle, clearly inadmissible in reduction, or, standing alone, in mitigation, of damages; and it was so held in Tucker v. Lawson, 2 Times Law Rep. 593, and Gray v. Publishing Co., 89 N. Y. St. Rep. 35, 55 N. Y. Supp. 35. It is inadmissible even when coupled with evidence that on such former occasions the plaintiff did not sue the publisher, or take any steps to contradict the charges made against him. Rex v. |