FOOTE v. GOOCH. dition to the land, (the italics are in the opinion,) he is not at liberty to subtract it, on the ground that by his own default he is not able to get the title." The test then is the actual attaching or affixing the articles of personalty to the freehold, so that they become parcel of the realty, and these passed to the purchaser at the sale under the mortgage. We cannot undertake to say whether all the articles enumerated in the schedule fulfill the requirements; and as the appellant must show error, we must assume that they do. There is no error, and the judgment must be affirmed. Affirmed. DEFENDANT'S APPEAL. Where the Court below found as a fact that certain articles were in no way connected with the freehold, it disposes of the question of their being fixtures in this Court. This was the defendant's appeal in the foregoing case. Mr. John A. Moore, for the plaintiff. Messrs. W. H. Day, R. O. Burton and Jos. B. Batchelor, for the defendant. SMITH, C. J. The defendant's appeal is from an alleged erroneous ruling that the articles mentioned in schedule two, more than one hundred in number, were not the property of defendant. It is found as a fact by the Court, that these "articles were in no way connected with the foundry or buildings, but were patterns or moulds and tools which were movable.” This disposes of the question as to their being fixtures, and determines the plaintiff's property therein. There is no error, and the judgment is affirmed. No error. Affirmed. KNOTT v. BURWELL. F. R. KNOTT v. H. H. BURWELL, JR. Appeal-Counter-claim-Libel-Evidence-Mitigation of Damages. 1. Where a demurrer to a counter-claim is sustained and the counterclaim stricken out, the defendant cannot appeal from the judgment and so stop the trial of the action, but must note his exception to the action of the Court and bring the point up for review on an appeal from the final judgment. 2. In action to recover damages for a libel, it is competent for the defendant to introduce evidence in mitigation of damages, to show the provocation which induced him to publish the libel, but this provocation must originate in the same subject matter out of which the libel arose, or be closely connected with it. 3. In actions for defamation under the former system of pleading, evidence offered to sustain a plea of the general issue could not be considered in mitigation of damages, but this has been changed by The Code, $266. 4. Malice is presumed from the utterance of false defamatory words, and proof of it, other than proof of the utterance of the false and defamatory words, is not necessary, and hence it is always proper to allow the defendant to prove an absence of malice in order to mitigate the damages. 5. So where the plaintiff had charged the defendant with using false weights in his business, and upon hearing of the charge, the defendant sent to the plaintiff and asked him to correct it, which the plaintiff promised to do, admitting at the time that the charge was false, but he afterwards refused to retract it, upon which refusal the defendant published the libel sued on: It was held, that these facts were admissible in evidence in mitigation of damages. (Nelson v. Evans, 1 Dev., 9: cited and approved: Smith v. Smith, 8 Ired., 29: cited). CIVIL ACTION, tried before Gilmer, Judge, and a jury, at November Term, 1885, of GRANVILLE Superior Court. There was a judgment on the verdict for the plaintiff, and the defendant appealed. KNOTT v. BURWELL. The facts fully appear in the opinion. Messrs. R. W. Winston and E. C. Smith, for the plaintiff. Mr. D. G. Fowle, for the defendant. SMITH, C. J. The action is for libel, and the complaint in separate counts, sets out the alleged libelous matter, published in a newspaper, known as The Gold Leaf, in its respective issues of February 21st and March 6th, 1884. The answer denies the identity of the matter contained in the newspaper with that set out in the complaint, and the imputed motive, and proceeds to explain the circumstances that preceded and led to the publication as a means of selfvindication, and to details other matters in explanation and excuse of the act. It also sets up a counter-claim for damages, on account of slanderous utterances of the plaintiff against the defendant, in connection with the personal differences which had sprung up between them in business operations, and to which those imputed to the defendant have reference. To the counter-claim the plaintiff interposes a demurrer, based upon the ground that it contains a distinct and independent cause of action in tort, unwarranted by The Code, $244, par. 1, and this being sustained by the Court and the counter-claim disallowed, the defendant appealed, and at the same time moved the Court to suspend further proceedings in the action, until the appeal could be heard and decided. This was also refused and the trial ordered to go on. To these rulings the defendant's first exception is taken, and it is in our opinion without support in law. The proposed appeal was premature, and the exception being noted upon the record, the ruling would come up for review after the final hearing upon an appeal then taken, and this opportunity is now afforded the defendant. We pass over so much of the controversy as relates to the form of the issues, all of which are found adversely to the KNOTT v. BURWELL. defendant, to consider the exceptions to the refusal of the Court to admit evidence offered in mitigation of damages under the last issue, since this, in our opinion, entitles the defendant to a new trial. To the proper understanding of the pertinence and force of the excluded proofs, it is necessary to set out the libelous publications as stated in the complaint, which are as follows: The "TO THE PUBLIC.-On the 13th inst., Mr. J. W. Brown sold with us thirteen lots of tobacco. With the price of five of these lots he was satisfied. other six lots he took in, and carried to Oxford, where, on the 14th inst., in the warehouse of F. R. Knott & Co., the same tobacco was made to weigh, or reported as weighing, sixty-four pounds more than it weighed at our house. It has now come to my knowledge that Mr. F. R. Knott, since the above mentioned occurrence, has been busying himself trying to slander our business, and our personal integrity, charging us with false weights, and giving the above as witness at once of our false dealing, and his own superior honesty. As soon as I heard of the matter, I sent my partner and brother, Mr. J. S. Burwell, to him, to call his attention to the injury and injustice done us, and to ask for such reparation as we were entitled to. Thereupon, in his (Mr J. S. Burwell's) presence, he agreed to sign a written statement, in which he acknowledged the wrong, and took the blame on his own warehouse, alleging in excuse, that from some unknown cause his scales or trucks were out of order on the 14th, which was not detected by him till after the sale. Having said all that, and allowed it to be written, he then refused to sign it, or to do anything else, and so this falsehood and slander still circulate on his authority. On such authority I can hardly think that any respectable man's character or business can be injured. It is the first time that our weights have been questioned, and I here pronounce the charge knowingly, intentionally and corruptly false. Our KNOTT v. BURWELL. scales are correct, and we render true weights. The false weighing was done in Messrs. Knott & Co.'s warehouse, and done for the purpose of dishonestly and knowingly injuring our warehouse and benefiting himself thereby. Now, as to Mr. F. R. Knott. By his course since that occasion, he has shown himself insensible to the obligation of truth or honor, and unworthy of notice from any gentleman. I refer by permission to Messrs. John Meadows and I. N. Burwell, as to the incorrectness of his weights of tobacco bought by them on the same day. The gentlemen say that their tobacco was made to weigh about eight pounds to the pile too much on that day, which accounts for the gain of sixty-four pounds in the eight lots sold by Mr. Brown. I have further to say, that this same F. R. Knott has been charged to his face in the city of Richmond with stealing, without resenting the same. We know that we have to make our living by fair dealing and hard work, and have no fear that an honest man will question the one or envy the results of the other. We give true weights, realize the highest prices current, and pay cash for all we sell. And so, conscious of our integrity, we are, and I, H. H. Burwell, Jr., in particular, am at all times to be found at the Carolina Warehouse, in Henderson, ready to see and satisfy all who come, and to give our friends, the farmers, a cordial welcome, and the best the tobacco market affords. H. H. BURWELL, JR., Of Burwell Bros. & Co., Carolina Warehouse, Henderson, N. C. February 20th, 1884." And for a second cause of action, plaintiff complains and alleges: 1. That on the 6th day of March, A. D. 1884, the said defendant, still further contriving and wickedly and maliciously intending to injure the plaintiff as aforesaid, and to |