wit, that he should be paid 10 per cent. of the collections as his compensation. The action was for a recovery of'$5,OOO.' upon an insurance of the life of the plaintiff's husband, now deceased. The right, in general, of alitigant to change his attorney at pleasure, has been repeatedly affinned. lnre Paschal, 10 Wall. 483, 493-496; Dodge v. Schell, 20 Blatchf. 517,12 Fed. Rep. 515; Inre Wilson, 12 Fed. Rep. 235, 238, and cases "there cited. In the present case not much progress has been made in the disposition of the cause. A demurrer to the complaint has not been argued, and the plaintiff's proceedings have been stayed until security for costs on her part is filed. The plaintiff herself resides in Scotland, and is understood to be in poor circumstances. He;t' attorney in fact, who undertook the prosecution of her interests here, desired to be relieved of his charge; and a new attorney in fact has been substituted, by whom this application for a change of attorneys in the litigation has been promoted. Contracts like that in the present instance, for the compensation of attorneys to be paid from the amount recovered, and contingent upona recovery, are not to be construed. as debarring a plaintiff from any change of attorney, nor as giving the originalattorneyan absolute control of the litigation to the end. Such a construction would be impolitic in its results, and cannot be sustained. The· agreement should be regarded as providing for the mode of compensation only, and subject to such reasonable changes and provisions as subsequent circumstances may make proper. The attorney has a lien upon the papers in his possession for his contingent fees, in case of final recovery, to the extent of the proportion of services already rendered. The motion for a substitution shoul4 be granted, upon the plaintiff's stipulation being filed with an order entered herein declaring the present attorney's lien pro rata upon any moneys or judgment hereafter recovered, to the extent that may be hereafter determined, should the plaintiff be successful in the suit; and that notice of such lien be given to the defendant. This will probably be a satisfactory security to the present attorney; if not, I will consider any further application in that respect in his behalf.
BATTELL V. WALLACE.
«(Jircuit (Jourt, 8. D. New York.
February 14, 1887.)
LIBEL-ONE LIBEL DOES NOT JUSTIFY ANOTHER.
A libel upon the plaintiff cannot be justified by a previous wholly inde· pendent libel upon the defendant: and the latter cannot even be given in evidence in mitigation of dama/l:es where any considerable interval bas elapsed.!
2. SAME-PLEADING TRUTH IN JUSTIFICATION.
Where the libel complained of is that defendant published that "the wretched idiot [meaning the plaintiff] set about to injure us [meaning defend-
ISee Shattuc v. McArthur, 29 Fed. Rep. 136, and note.
a:ntlby trying to cast doubt upOn some ofthe early pedigrees as thpyappeared defe"ndant's book of pedigreesof horses,)" and defendant In his answel'alleged in detail the instances in which the plaintiff had tried to cast doubts on pedigrees in-defendailt's register. held. that. these allegations were in e:trectaverments of the truth of the alleged libelous Iliatter. and set forth the specific instances referred to in the general assertion. Such matter was competent, under Code Civil Proc. N. Y. §§ 5B5, 586; a.lloWin.g defendan.t to. pr.ove mitigating circumstances, and .facts not amounting to a complete dl3fense, tending to mitigate or reduce plaintiff's damages. if the facts are set 'forth in the answer.
D. MeG. Means, for plaintift'. B.F. 'l'racy, for defendant.
BROWN, .J. Without questioning the general principle invoked by the plaintiff that a libel upon the plaintiff cannot be justified by a previous wholly independent libel upon the defendant,and that the latter cannot even be given in evidence in mitigation of damages where any considerable interval has elapsed, I am not satisfied that the matter sought to be stricken out from the ariswer upon this motion is so independent of the libelous matter complained of and setforth in the complaint as to justify me in striking it out, or in holding that it could not possibly be given in evidence upon the trial. The complaint alleges that the defendant pUblished, among other libelous matter, the following: "The wretched idiot [meaning the plaintiff] set about to injure us [meaning defendant] by ttying to cast doubt upon some of the early pedigrees as they appeared the register, [meaning defendant's said book 'of PE!digrees of horses,]" etc. . The eleventh paragraph of the answer sought to be stricken out purports to be a stateinent in detail of the instances in which, as"the defendant alleges, the plaintiff did, as the alleged libelous matter asserts, seek to cast doubts on the earlier pedigrees set forth in the defendant's register. In effect, it would seem to be an averment of the truth of the alleged libelous matter, setting forth the specific instances referred to in the general Under the Code tbis is proper to be pleaded either in justification or in mitigation of damages. Code Civil Proc. §§ 535, 536; Hatfield v. Lasher, 81 N. Y. 250; Gould v. Weed, 12 Wend. 12; WUlover v. Hill, 72 N. Y. 36; Fink v. Justh, 14 Abb. Pro (N. S.) 107; Corning V. Corning, 6 N. Y.103; Jejfras v. MeKillnp & S. 00.,2 Hun, 351. Motion denied.
UNITED STATES V. POULSON.'
YOUNG V. ROSSI. 1 WILLARD
(DiBtriet OOure, E. D. New York. March 24, 1887.)
FALSE blP.RISONMENT-No ESPECIAL Loss-RECOVERY.
On the evidence, that, as 1).0 loss resulted to tile libelants from the admittedly wrongful detention on board defendant's vessel, $100 would be Bufllcient remuneration for the infringement of their personal rights.
In Admiralty. Goodrich, Deady k Goodrich, for libelants. Butler, ShUman k Hubbard, for respondent. BENEDICT, J. These cases can be disposed of together. In each case the libelant seeks to recover of the defendant damages for false imprisonment. The wrongful detention of the men on board his vessel by the defendalltis admitted. But it is not a case for large damages; no loss resulted to the libelants from their detention. If $100 be paid each libelant, a sufficient remuneration will be received for the infringement of their personal rights and any inconvenience to which they were put. Let each libelant have a decree for $100, and his r,.osts.
OOU'1't, E. D. Penn81/Z'Dania. March 18, 1887.)
In an action by the United States against a surety on an official bond. where demand had been made upon the surety to make good hill principal's default, interest will be charged only from the day of service of the writ.
Sur Rule for.a New Trial. This was an action brought by the UnitedStates against John G. Poulson, a surety on the official bond of F. F. Burmeister, who was pension agent at Philadelphia from February, 1867, to May, 1869. The bond was joint and several, and was dated March 13, '1867. Burmeister's last monthly statement showed a balance due him by the United States of $4,531.26. No demand was made upon,the surety to make good his principal's default prior to the issuing of the writ, in the latter part of 1886. The jury returned a verdict for the United S1:1ttes for $13,006.27, with 17 years' interest, making together $26,656.27 ,whereupon the delReported by Edward G. Benedict, Esq.. of the New York bar. 2 Reported by C. B. Taylor, Esq., of the Philadelphia bar.