Hardy vs. Mills. matters as were in issue and might have been litigated in the action. The main and vital question in issue in the action for a specific performance was, whether, upon the facts alleged and denied, the plaintiff was entitled to have the contract specifically performed. Any other matter than this was. a mere immaterial and collateral issue. Whether the court acquired jurisdiction in the partition suit, or whether its proceedings in that suit were impeachable for fraud or want of jurisdiction, was not an issue in the action for a specific performance of the contract, nor in any way involved in the question whether the plaintiff was entitled to the relief he sought in that suit. In the determination of the cause before it, the court had no occasion to pass upon the validity of the partition proceeding; the finding of facts above given was quite unnecessary and upon an incidental issue, and is therefore not binding upon the parties. It seems to us that this answer is entirely conclusive and decisive upon the point made. For we understand the rule of law upon this. subject to be as stated by EARL, C., in Woodgate v. Fleet, 44 N. Y., 1–13: "A judgment is conclusive upon the parties thereto only in respect to the grounds covered by it, and the law and facts necessary to uphold it; and, although a decree, in express terms, purports to affirm a particular fact or rule of law, yet if such fact or rule of law was immaterial to the issue, and the controversy did not turn upon it, the decree will not conclude the parties in reference thereto. (The People v. Johnson, 38 N. Y., 63)." See also Coit v. Tracy, 8 Conn., 269. The circuit court, in finding that the plaintiff herein was not entitled to the relief claimed, must have deemed that there had been no adjudication of the validity of the partition record, and that while it had, in the action for a specific performance, affirmed the fact that the court had jurisdiction in that action and that its proceedings had not been impeached for fraud, yet this did not conclude the parties in reference to these matters. It is very apparent that the court considered these facts Langton vs. Hagerty. quite immaterial in the action for a specific performance; for it granted the plaintiff the relief sought, while affirming the existence of these facts. The controversy did not turn upon them, and therefore the plaintiff in that action might not have considered it necessary to controvert them, even if able to disprove them. These findings, therefore, in the specific performance suit, being upon a collateral and immaterial matter, and the judgment in the action not resting upon them in any way, it is obvious that they cannot conclude the parties upon those questions. And this is rendered still more apparent by the clause in the finding and judgment in that action which reserves the right to the parties to settle their claims to the remaining three-elevenths of the land in any subsequent suit. We therefore think the judgment of the circuit court in this case was correct, and must be affirmed. By the Court. Judgment affirmed. LANGTON VS. HAGERTY. SLANDER: PLEADING. (1,3) When inducement not necessary in complaint. (2) Effect of innuendo. (4) When answer cures defect of inducement. (5, 6) Truth of words charged, or mitigating circumstances, to be proved or submitted to jury, must be pleaded. SLANDER: EVIDENCE. (7–9) Plaintiff's right to prove facts showing malice. Order of evidence; discretion of court. (10) Res gesta. (11) Evidence of defendant's malice, and of plaintiff's bad character for what purpose admissible. (12) Evidence that slander did not affect plaintiff's pecuniary credit. (13) Discretion of court as to evidence on collateral issues. COURT AND JURY. (14) Construction of words charged, for the court. (15) Credibility of witness, for the jury. REVERSAL OF JUDGMENT. (9, 16-18) Error in admitting evidence, refusing instruction, or construing pleading: when not fatal. NEW TRIAL. (19) When not granted for incompetency of juror. (20) Proof of such incompetency. Langton vs. Hagerty. 1. In slander, where there is no ambiguity in the words charged, either in respect to their actionable character per se, or in respect to the person to whom they refer, no inducement is necessary. 2. The innuendo cannot extend the meaning of the words charged; its office being only to point their meaning to some precedent matter expressed in the pleading or necessarily understood. 3. The complaint (with due averments of time, place, audience and malicious intent) charges that defendant "spoke, published and declared of and concerning plaintiff, the false, scandalous and defamatory words following, to wit: 'He [meaning the plaintiff] murdered the man [meaning one M. N.], and stole all his money from him, and I saw him do it;' meaning, intending and charging thereby that this plaintiff had been guilty of the crimes of murder and larceny," to plaintiff's damage, etc. Held, that, omitting the innuendoes, the words charged impute to plaintiff the crimes of murder and larceny, and the complaint is not bad for omitting to state, by way of inducement, that M. N. had been killed, etc. 4. Even if the complaint were defective for the omission of such inducement, no advantage could be taken of the defect after the filing of an answer which alleges the killing of said M. N. by the plaintiff, and that the words charged were spoken by defendant with reference thereto. 5. In slander, where the truth of the words spoken is not alleged in the answer, defendant cannot prove their truth, nor have that question submitted to the jury; nor can he avail himself of extrinsic facts to mitigate damages, unless they are pleaded. 6. There being no averment in the answer either that the words charged were true, or that the killing of M. N. by plaintiff, if not murder, was manslaughter, there was no error in refusing to submit to the jury the question whether such killing was a justifiable or felonious homicide. 7. In such an action, plaintiff may prove any fact which tends to show that the slanderous words were spoken by defendant maliciously; and this he may do, not only in rebuttal, but before any testimony is introduced by defendant. 8. In this case, if plaintiff claimed that the circumstances which attended the killing of M. N. did not furnish any just ground for a belief that he had been guilty of any crime, he was entitled to prove those circumstances in the first instance, as tending to show malice on defendant's part. 9. Even if such testimony should in strictness have been introduced at a later period, by way of rebuttal, its admission in the first instance was probably within the discretion of the court; and at least, it not Langton vs. Hagerty. appearing how defendant could be injured thereby, it is no ground of reversal. 10. It appearing that at the time of such killing, plaintiff, as deputy sheriff, was attempting to arrest M. N., pursuant to a request received by telegraph from the sheriff of a certain county in Michigan, for crimes committed in that state, the telegraphic dispatch containing such request was properly received in evidence, as part of the res gestæ. 11. In slander, where the words charged are actionable per se, and the communication was not privileged, plaintiff is entitled to recover without proof of defendant's malice; and his recovery cannot be entirely defeated by proof of his own bad character; though these considerations may affect the amount of his recovery. 12. There was no error, in this case, in refusing to permit defendant to show that the alleged slanderous words had not injuriously affected plaintiff's pecuniary credit. 13. The admission or rejection of certain testimony as to collateral issues, held to be within the discretion of the court. 14. The words alleged and admitted by the pleadings clearly charging plaintiff with murder and with larceny or robbery, there could be no error in refusing to charge the jury that he could not recover" if the words spoken were only to the effect that he had killed a man." 15. The question of the credibility of a witness is for the jury; and the court did not err in refusing to charge that "the testimony of the defendant was entitled to as much weight as that of any other witness." 16. In view of the evidence in this case as to plaintiff's reputation, a refusal to instruct the jury that "if his reputation was so bad that the slanderous charges could not affect it, he could not recover," would not be treated as error, even if such instruction were correct in law. 17. The erroneous admission of evidence is no ground of reversal, where the verdict cannot be supposed to have been affected thereby to appellant's injury. 18. An erroneous construction of the answer as admitting the slanderous words charged, would be no ground of reversal where the uncontradicted evidence proves clearly that they were spoken as charged; nor would an erroneous construction of the answer as not alleging any mitigating circumstances as to a part of the slanderous words be any ground of reversal, where defendant was in fact allowed to introduce all his evidence in mitigation. But in this case the construction of the answer by the circuit court is held to be correct. 19. If it satisfactorily appear that a juror who participated in the verdict in a cause still pending, was not competent, the losing party not hav ing waived the objection to such juror by laches or otherwise, the Langton vs. Hagerty. court should set aside the verdict and grant a new trial, if a motion therefor is made in due time. 20. But the mere admissions or statements of the juror himself, made after the verdict is returned, or after it is made up and sealed, to the effect that he was not impartial, or was prejudiced against the losing party, are inadmissible to prove the fact, and are not sufficient ground for setting aside the verdict. APPEAL from the Circuit Court for Brown County. Action for slander. The complaint states five counts or causes of action, charging the speaking of the same words, substantially, but at different times, and in the presence and hearing of different persons. The introductory averments and the innuendoes are the same in each. Hence, a perusal of one count will show the structure of the whole complaint. The first cause of action is as follows: "That on or about the 12th day of October, 1872, at the city of Green Bay in said Brown county, the defendant, wilfully and maliciously designing and intending to injure and degrade this plaintiff in his character, and to bring plaintiff into public infamy and disgrace, wilfully and maliciously spoke, published and declared of and concerning this plaintiff, in the presence and hearing of one N. L. Barber and divers other persons, the false, scandalous and defamatory words following, to-wit: 'He [meaning the plaintiff] murdered the man [meaning one Michael Nehill], and stole all of his money from him, and I saw him do it;' meaning, intending and charging thereby, that this plaintiff had been guilty of the crimes of murder and larceny; that plaintiff was thereby greatly injured in his good name, fame and character, to his damage three thousand dollars." Each count is separately answered; but, except the reference in each to the number of the count which it purports to answer, the answers are alike. Each contains a general denial of the allegations of the count to which it responds, and, in addition thereto, the following averments: "And for a further answer to the plaintiff's (first) alleged cause of action, the defendant avers that before the speaking of the words, 'he mur |