Where it was to be plainly inferred, from the general tenor of the libel, that it was the object of the writer to represent the plaintiff as holding a situation of trust and confidence, and that he had abused it, held that it was sufficient to sustain the allegation in the declaration of plaintiff's holding such situation. A declaration in libel stated as inducement that the plaintiff was a surgeon and member of the College of Surgeons, which said college had the power of expelling persons guilty of unprofessional conduct, and of unprofessionally advertising themselves and their cures. The libel was alleged to be published of and concerning the plaintiff as such surgeon, and of and concerning the said college and its said power. One of the libels complained of contained a statement that the college had the power of expelling its members. the second plea was that the plaintiff was not a surgeon and member of the College of Surgeons having the power of expelling persons guilty of unprofessional conduct, and of unprofessionally advertising themselves and their cures. Held, that the traverse put in issue the power of the college to expel, and that the statement in the libel itself was not sufficient evidence of such power.

practitioner, the case was not withdrawn from their consideration, although they might not give the same damages as to a person proved to be a regular practitioner. (Long v. Chubb, 5 Car. & P. 55.) Where the declaration alleged that there were such states as C. and B., that the plaintiff and one H. had been appointed minister plenipotentiary and consul general respectively from those states to this country, the libel on the face of it admitted that there were such states; and it being proved at the trial that the plaintiff had been appointed such officer for the one state, and H. for the other, held that the allegations were sufficiently made out. (Yrissari v. Clement, 3 Bing. 432.)

1 Bagnall v. Underwood, II Price, 621. In an action for a libel the defendant pleaded justification, and in his plea introduced certain passages from a pamphlet written by plaintiff, upon which plea issue was joined. Held, that this was not so far an adoption of the whole pamphlet as true, as to enable the plaintiff to read other passages from it, to show that the defendant was the aggressor in the controversy which led to its publication. (Kearney v. Gough, 5 Gill & Johns. 457.)

* Wakley v. Healey, 18 Law Jour. Rep. 426, Ex.; 13 Law Times, 259; 4 Ex. 53. The general issue admits the character in which plaintiff sues. (Yeates v. Reed, 4 Blackf. [Ind.] 463.)

§ 387. It is a much vexed question whether in an action for slander or libel the plaintiff may, in aggravation of the damage he has sustained, introduce evidence of his good reputation prior to the publication complained of; on this point, as upon all the others relating to the proceedings in an action, we can do no more than call attention to the decisions upon the subject. Although it may be true that in an action for slander or libel the reputation of the plaintiff is in issue, it is nevertheless true that, as a general rule, the reputation of the plaintiff is assumed to be good until the contrary is shown (§§ 313, 314); and that, unless some blot upon the plaintiff's reputation is set up as a mitigating circumstance, or his reputation is otherwise assailed, he is not permitted for any purpose to introduce any evidence on the subject; thus, it has been held that evidence cannot be given of the fairness of the plaintiff's character (reputation), even where a justification is pleaded, unless attacked by the defendant.' But held, also, that where the general issue only is pleaded, the plaintiff may give

1 Shipman v. Burrows, 1 Hall, 399; Harcourt v. Harrison, 1 Hall, 474; Cornwall v. Richardson, 1 Ry. & M. 305; 1 C. & Y. 106; Severance v. Hilton, 4 Foster, 147; McGee v. Sodusky, 5 J. J. Marsh. 185; Inman v. Foster, 8 Wend. 602; Dame v. Kenney, 5 Fost. 318; Petrie v. Rose, 5 Watts & Serg. 364; Holley v. Burgess, 9 Ala. 728; Harbison v. Shook, 41 Ill. 142; Wright v. Shroeder, 2 Curtis C. C. 548; Martin v. Hooker, 7 Coldw. (Tenn.) 130; Chubb v. Gsell, 34 Penn. St. R. 114; Miles v. Van Horn, 17 Ind. 245; Harris v. Wilson, 28 Ind. 296; and see Rhodes v. James, 7 Ala. 574; Rector v. Smith, 11 Iowa, 302; Tibbs v. Brown, 2 Grant's Cases (Penn.) 39; Fleetcraft v. Jenks, 3 Whart. 158; McCabe v. Platter, 6 Blackf. 405; contra, Scott v. Peebles, 2 Sm. & M. 546; Byrket v. Monohon, 7 Blackf. 83; Adams v. Lawson, 17 Gratt. 250; Shroyer v. Miller, 3 W. Va. 158; Romayne v. Duane, 3 Wash. C. C. 246. It is not competent for the plaintiff to make proof of his good character, in reply to evidence of the truth of the charge. (Houghtaling v. Kelderhouse, 1 N. Y. 530; affi'g 2 Barb. 149; Matthews v. Huntley, 9 N. Hamp. 146; Springstein v. Field, Anthon, 185; Her v. Cromer, Wright, 441; Stow v. Converse, 3 Conn.,325.) Where the charge is such that the defendant's evidence in justification, though insufficient to prove it, has a tendency to affect the general character of plaintiff, on the subject of the charge, he may reply by evidence of general good character in that particular. (Wright v. Shroeder, 2 Curtis C. C. 548.)

evidence of his good character. In slander for the charge of perjury, where the plaintiff is permitted to give evidence of his character to protect himself, it is error to confine him to evidence of his general character for truth and veracity. A witness called by the plaintiff in an action of slander, in support of the plaintiff's general character, stated that some persons spoke very ill and some very well of him. Held, that the plaintiff might ask the witness in what particulars some people spoke against him.3

§ 388. Where the language is actionable and the publication does not appear to be on any occasion which renders it privileged, there the language is presumed to be false and malicious, ¿. e., published without lawful excuse, and no other evidence of malice is necessary. But where the publication is prima facie privileged, the onus of proving malice in fact, i. e., that the defendant was actuated by motives of personal spite or

1 Williams v. Greenwade, 3 Dana, 432; King v. Waring, 5 Esp. Cas. 14; Bennett v. Hyde, 6 Conn. 24; Romayne v. Duane, 3 Wash. C. C. 246; Sample v. Wynn, Busbee Law (N. Car.) 319; Howell v. Howell, 10 Ired. 82; Burton v. March, 6 Jones Law (N. Car.) 409; Williams v. Haig, 3 Rich. (So. Car.) 362; Shroyer v. Miller, 3 W. Va. 158.

2 Steinman v. McWilliams, 6 Barr, 170.

3 Leonard v. Allen, 11 Cush. 241.

4 Fry v. Bennett, 5 Sandf. 54; Sanderson v. Caldwell, 45 N. Y. 398; Wilson v. Noonan, 35 Wis. 321; Estes v. Antrobus, 1 Mo. 197; McKee v. Ingalls, 4 Scam. 30; Parke v. Blackiston, 3 Harring. 373; Kinney v. Hosea, Id. 397; Farley v. Ranck, 3 Watts & Serg. 554; Erwin v. Sumrow, I Hawks, 472; Dexter v. Spear, 4 Mason, 115; Bodwell v. Osgood, 3 Pick. 379; Weaver v. Hendrick, 30 Mo. (9 Jones), 502; Roberts v. Camden, 9 East, 93; Usher v. Severance, 20 Me. 9; Yates v. Reed, 4 Blackf. 463; Gilmer v. Ewbank, 13 Ill. 271; Root v. King, 7 Cow. 613; affi'd 4 Wend. 113; Trabue v. Mayo, 3 Dana, 138; Byrket v. Monohon, 7 Blackf. 83; Hudson v. Garner, 22 Mo. (I Jones), 423; Curtis v. Mussey, 6 Gray, 261. The jury cannot infer the want of malice from the fact that the words were spoken only once, and stated as a common report. (Mason v. Mason, 4 N. Hamp. 110; $ 73, ante.) In Massachusetts and Maine, by statute, in an action for libel, defendant may give evidence of intention, and unless plaintiff prove malice in fact, he can recover nothing but his actual damage proved and specially alleged in his declaration. (See Moore v. Stevenson, 27 Conn. 14; Hotchkiss v. Porter, 30 Conn. 414.)

The existence or non-exist"The

ill-will, is upon the plaintiff. ence of this intent is a question for the jury.1 want of proof on the part of the defendant that the slander was true, is not enough (to prove malice), and the plaintiff, to maintain his action, must show that the charge was false, before he can ask the jury to find the slander to be malicious."2

389. It is said that falsehood may be evidence of malice. But the mere falsity of a publication, without its being shown that the publisher knew it to be false, is not per se evidence of malice. Thus, where the alleged libel was a complaint made by the defendant of the incompetency of the plaintiff, a surveyor, who had been sent to him for employment, and the innuendo charged

1 Pattison v. Jones, 8 B. & C. 578; 3 M. & R. 101; Bromage v. Prosser, 4 B. & C. 247; 6 Dow. & R. 296; Child v. Affleck, 9 B. & C. 403; Kelly v. Partington, 4 B. & Ad. 700; 3 N. & M. 116; Toogood v. Spyring, 4 Tyrw. 582; 1 C. M. & R. 573; Kine v. Sewell, 3 M. & W. 297; Wright v. Woodgate, 2 C. M. & R. 573; Tyrw. & G. 12; Liddle v. Hodges, 2 Bosw. 537; Somerville v. Hawkins, 10 C. B. 583; 15 Jurist, 450. The question of malice is for the jury to determine, upon all the facts and conversations in connection with which the words were spoken. (McKee v. Ingalls, 4 Scam. 30; Erwin v. Sumrow, I Hawks, 472; Smith v. Youmans, Riley, 88; Robinson v. May, 2 J. P. Smith, 3; Roberts v. Camden, 9 East, 93; Coleman v. Playstead, 36 Barb. 26.) Where the charge was that the conduct of plaintiff was "most disgraceful and dishonest." The conduct of plaintiff was of an equivocal nature, and might bona fide be supposed by defendant to be such as he described it, held, not of itself, evidence of malice, and the court did right to order a verdict for the defendant. (Spill v. Maule, Law Rep. 4 Ex. 232.) Where there is evidence from which the jury may find that the defendant knew the charge to be untrue, the defendant must disprove malice. The knowledge of its untruth is some evidence of malice. (Hartwell v. Vesey, 3 Law Times, N. S. 275.) In judging of the malicious character of an alleged libel, the jury may take into consideration the whole publication; and if it contains statements concerning other persons, which are malicious, the jury may infer therefrom that what is said of the plaintiff is also malicious. (Miller v. Butler, 6 Cush. 71, and see Caddy v. Barlow, 1 M. & R. 275 ; § 399, post.)

Fowles v. Bowen, 30 N. Y. 26; and see Edwards v. Chandler, 14 Mich. 471; Rogers v. Clifton, 3 B. & P. 587. "Man," says Channing, "is not accountable for the rightness, but he is accountable for the uprightness of his views.

3 Fairman v. Ives, 5 B. & Ald. 645. shown to be true, the falsehood of the

Where part of a defamatory publication is other part may be left to the jury as evidence of malice. (Blagg v. Sturt, 10 Q. B. 897; 8 Law Times, 135; ante, note 3, p. 439.)

that the defendant meant that the plaintiff was not a competent and skillful surveyor, held, that evidence of the general competency and abilities of the plaintiff was inadmissible to show malice. Making a statement which is untrue to the knowledge of the party making it, is evidence of malice. On the trial of an action for slander, the plaintiff's witnesses proved that the slanderous statements were untrue in fact, but also that they were the natural and reasonable inferences from what took place, and which they professed to describe, and that the defendant was present at the occurrence to which the slanderous statements referred. The judge ruled that the occasion was privileged, but that the plaintiff must have a verdict unless the defendant proved that the statements were made without malice. Held, a right direction; the presence of the defendant being some evidence that the statements were made with a knowledge that they were untrue.3 To show that the defendant knew of the falsity of a charge of theft published by him, the plaintiff was permitted to prove that after the time when the theft was alleged to have been committed by plaintiff, the defendant continued upon friendly terms with plaintiff.

$390. The plaintiff may prove, in aggravation of the damages, his rank and condition in society,' malice

1 Brine v. Bazalgette, 18 Law Jour. Rep. 348, Ex.; Caulfield v. Whitworth, 18 Law Times, N. S. 527.

Fountain v. Boodle, 2 Gale & D. 455; 5 Q. B. 5; Harris v. Thompson, 13 C. P. 333; Sexton v. Brock, 15 Ark. 345; Farley v. Ranck, 3 Watts & Serg. 554 ; Harwood v. Keech, 6 Sup. Ct. Rep. (T. & C.) 665; 11 Sup. Ct. Rep. (4 Hun), 389.

Hartwell v. Vesey, 9 C. B. N. S. 882; 3 Law Times, N. S. 275. In slander, with general issue only pleaded, the plaintiff cannot, in the first instance, give evidence tending to prove the defendant's knowledge of the falsity of the words spoken. (Hartranft v. Hesser, 34 Penn. St. R. 117.)

4 Burton v. March, 6 Jones Law (N. Car.) 409.

5 Tillotson v. Cheetham, 3 Johns. 56; Hosley v. Brooks, 20 Ill. 115; Larned v. Buffington, 3 Mass. 546; Bodwell v. Swan, 3 Pick. 376; Howe v. Perry, 15 Pick. 506; Smith v. Lovelace, 1 Duvall (Ky.) 215; Justice v. Kerlin, 17 Ind. 588; Peltier v. Mict, 50 Ill. 511; Klumph v. Dunn, 66 Penn. St. R. 141; contra, see Gandy v. Humphries, 35 Ala. 617.