1. I do not think this case was fairly submitted to the jury. The legal proposition given in charge by the Judge, that to charge another, in a printed newspaper, published and circulated in the county, “that he is convicted of perjury, is actionable, without proof of special damages,” is sound law, as, its legal effect is to say, that it is actionable to charge another with the commission of legal perjury, without proof of special damages. But when applied to the facts of this case it was not sufficiently full, and was calculated to mislead the jury, at least on the question of dapiage.
The words upon which the action was founded in this case were these: “We have no reply to make to the statement of a lad who is convicted of perjury by the solemn oath of a gentleman, whose veracity stands unimpeached and unimpeachable.” This was not a charge that the plaintiff had committed or been convicted of legal perjury. On the contrary, the whole statement taken together explained the meaning of the writer so clearly, that any person of common sense who read it, could have no difficulty in understanding it. It showed that there had been no oath taken in Court, in any *447action on trial, or in any legal proceeding. In the controversy which was going on about the circulation of these two papers, Mr. Gregory had made a voluntary affidavit to one state of facts, and the plaintiff to another; and the charge siraply meant, that it had been shown by the voluntary oath of Gregory, that the voluntary oath of plaintiff was not true.
But it is said this language, when printed and published, is libelous, though it might not be objectionable, per se, if spoken. I do not deny that it may be libelous. But I say it would not justify the jury iin finding as heavy damages for the plaintiff, as a deliberate charge of legal perjury, written and published would justify. And I think the Judge should have so instructed the jury. To illustrate, suppose A writes and publishes of B that he committed perjury when testifying on a certain trial betweén C and D, in a Court of justice, in this, that the statement made by him under oath was positively false, but that he, A, is fully satisfied that B did it innocently because he thought his statement was true when he made it. And suppose an action for libel brought on this language, and the Judge on the trial should charge the jury, that it is actionable to charge another with perjury without proof of special damages, and stop there. This would be a sound legal proposition, but would it be a proper charge, when applied to the facts of the case on trial ? Clearly not. It would be calculated to produce the impression on the mind of the jury, that, in the view of the Court, the effect of the publication was to charge B with'legal perjury. And it would, if the publication as made were actionable, tend to induce the jury to increase the damages, as they would be sent to their room under the belief that A had charged B with a crime which he had not committed, and with which he had not, in fact, been charged.
2. But I am very well satisfied that the damages given by thejury, under the circumstances of this case, were excessive. An angry quarrel was being conducted, in bad spirit, and bad taste, between those who managed and controlled the columns of these two newspapers, about the extent of their circula*448tion. Tbe employees of the two establishments, or'at least part of them, had taken sides and voluntarily made themselves parties to the quarrel. It seems, from the record, that the charge of theft and duplicity had been made in the columns of the Chronicle and Sentinel against the employee of the Press, who had engaged in the strife, and in reply to this, the Press charged the employee of the Chronicle and Sentinel, so engaged, in the language already quoted. Whereupon he brought this action. Both parties were in fault, and so far as this record discloses, the party now suing, and the paper to which he belonged, were at least as much to blame as the other.
Now, while I do not claim that one tort can be set off against another, I say the jury should have taken into the account all these facts and mitigating circumstances, and should have found nominal damages only. See Code, section 3010. A party who provokes a difficulty, or who engages in it as willingly as the other party, and publishes libelous matter concerning >his adversary, has no right, in law or morals, to recover as much damages as an innocent party, who is wantonly assailed by a libelous publication.. Where there is equal culpability, and one party has a legal advantage, or - one only appeals to the Courts, he is not a favored suitor, and should not be encouraged. He may have a legal right to recover, but his damages should be reduced, according to the circumstances of the case.
While the Courts should neither encourage nor favor those who are engaged in the publication of libels concerning each other, a very different rule obtains when the character of an innocent person is wrongfully and maliciously assailed. In such case, the jury should find such damages as will fully compensate the plaintiff for the injury done, including his mental or other suffering, resulting from the unfounded and malicious attack; and such as will tend to cheek the wanton licentiousness of such presses as knowingly pervert the truth, and wilfully malign private character. Code, sections 3011, 3012.
Judgment reversed.
*449McCay, J., concurred, but furnished no opinion.