(ill-will) in defendant (§ 392, post), that defendant knew the charge to be false,' other publications of words not actionable, or which are actionable,3 if, as is said, the right of action on such words is barred by the statute of limitations, and subsequent defamatory remarks upon the plaintiff, and after the commencement of the action. In slander of a physician in his profession, the currency of

1 Bullock v. Cloyes, 4 Vt. 304; Stow z. Converse, 3 Conn. 325; ante, § 389. Allensworth v. Coleman, 5 Dana, 315; The State v. Riggs, 39 Conn. 498; Simonds v. Carter, 32 N. H. 458. Slanderous words, not laid in the declaration, cannot be proved in aggravation of damages. (Vincent v. Dixon, 5 Ind. [Porter], 270; Schenck v. Schenck, I Spencer, 208; Botelar v. Bell, 1 Md. 173; Medaugh v. Wright, 27 Ind. 137.)

3 Lee v. Huson, Peake, 166; Bond v. Douglas, 7 C. & P. 626; but see Cook v. Field, 3 Esp. 133.

4 Titus v. Sumner, 44 N. Y. 266; Brickett v. Davis, 21 Pick. 404; Throgmorton v. Davis, 4 Blackf. 174. But words not laid in the declaration cannot be proved to make the words laid actionable. (Jones v. Jones, 1 Jones Law [N. Car.] 495.) And where words actionable in themselves, and not set out in the declaration, are admitted in evidence to prove malice, the court must caution the jury that they are not to increase the damages on account of such words. (Letton v. Young, 2 Metc. [Ky.] 558; Barrett v. Long, 8 Ir. Law Rep. 331; Scott v. McKinnish, 15 Ala. 662; Burson v. Edwards, I Carter [Ind.] 164; see § 392, post.) A publication by defendant after the commencement of the action cannot be proved to aggravate damages. (Frazier v. McCloskey, 60 N. Y. 337.)

5

Chubb v. Westley, 6 C. & P. 436; post, § 394. Where the words, complained of are unambiguous-held that proof of the publication subsequently of other words of the same import is inadmissible. (Pearce v. Ormsby, I M. & Rob. 455; Symmons v. Blake, Id. 447.)

Post, $$ 394, 395; Barwell v. Adkins, 2 Sc. N. S. 11; Hesler v. Degant, 3 Ind. 501; Williams v. Harrison, 3 Mo. 411; Hutch v. Potter, 2 Gilman, 75; Scrimper v. Heilman, 24 Iowa, 505; Kean v. McLaughlin, 2 S. & R. 469; contra, McGlenery v. Keller, 3 Blackf. 488.

In an action for a libel in a weekly periodical publication, a witness was allowed to prove a purchase of a copy after the action brought. (Plunkett v. Cobbett, 2 Selw. N. P. 1042; 5 Esp. 136.) If a defendant, after action brought, issues a new publication, mingling the matter for which he has been sued with new libelous matter, he cannot call upon the court to analyze the publication, and separate what refers to the former libel from the new slanderous matters it may contain, but the whole may be read in evidence. (Schenck v. Schenck, I Spencer, 208.) As to admissibility of proof of repetition to aggravate the damages, see Burson v. Edwards, 1 Carter (Ind.) 164; Shoulty v. Miller, 1 Ind. 544; Lanter v. McEwen, 8 Blackf. 495; Forbes v. Myers, Id. 74; Leonard v. Pope, 27 Mich. 145. Proof of a repetition of the words after action commenced not permissible. (Frazier v. McCloskey, 60 N. Y. 337 ; 2 Sup. Ct. Rep. [T. & C.] 266.)

the slanderous report in the place of his practice, following the utterance of the same by the defendant, may be given in evidence, as well as the effect of such report upon the professional gains of the plaintiff, in aggravation of damages, without strict proof connecting the current report with the slander of the defendant; the fact of such connection being for the jury, and not for the court to pass upon. A libel charged M. with kidnapping a free colored man, and referred to two numbers of a newspaper which showed the transaction in full; Held, an aggravation of the libel. If the publication was in a newspaper, the plaintiff may, to aggravate the damages, prove the extent of the circulation of that paper at the time of the publication of the alleged libelous matter, and to prove this, may give a copy of the defendant's paper in evidence containing a statement of the amount of circulation.3

§ 391. The plaintiff, to aggravate damages, cannot prove the defendant's wealth, nor that it was currently

'Rice v. Cottrell, 5 R. I. 340. In Hotchkiss v. Lothrop, I Johns. 286; Dole v. Lyon, 10 Johns. 447, doubted if defendant being indemnified was not admissible in aggravation. Semble not, as indemnity void. (Ante, § 305.) Where the plaintiff in an action for a libel charging her with theft, published in a newspaper, had alleged as special damage that in consequence of said libel she had been discharged from the employment of one W., on the trial plaintiff offered evidence that a few days after the publication of the libel, W. had said to her that there were flying reports in the newspapers about her and her sister, and that it would injure his shop to have such girls there, and had thereupon discharged them-held that such evidence was admissible in support of the allegation of special damage, although there was no evidence either that W. had seen the publication in question, or as to what reports and what newspapers he referred to. (Moore v. Stevenson, 27 Conn. 14.) Plaintiff cannot give in evidence to enhance damages that detectives put his name in their books, without showing that defendant was connected with such act of the detectives. (Garvey v. Wayson, 42 Md. 178.)

Nash v. Benedict, 25 Wend. 645.

3 Fry v. Bennett, 28 N. Y. 330.

Myers v. Malcolm, 6 Hill, 292; Ware v. Cartledge, 24 Ala. 622; Palmer v. Haskins, 28 Barb. 90; Morris v. Barker, 4 Harring. 520; but see Fry v. Bennett, 4 Duer, 247; Buckley v. Knapp, 48 Mo. 152; Bennett v. Hyde, 6 Conn. 24; Case v. Marks, 20 Conn. 248; Adcock v. Marsh, 8 Ired. 360; Karney v. Paisley, 13 Iowa (5 With.)

reported that defendant had charged the plaintiff with the crime mentioned in the declaration,' nor that the plaintiff had suffered distress of mind, nor that the defendant, when requested, refused to give the name of the author of the alleged defamatory language.3

§ 392. The plaintiff may prove express malice-i. e., ill-will or hostility on the part of the defendant towards the plaintiff either to aggravate the damages or to defeat a defense of privileged publication. To establish such malice, the plaintiff may, it is held, in some cases, give in evidence other publications by the defendant of defamatory language concerning the plaintiff, whether it be the same as or other than the language declared upon if of the like import. But the better opinion appears to

89; Humphries v. Parker, 52 Maine, 502; Stanwood v. Whitmore, 63 Id. 209: Hosley v. Brooks, 20 Ill. 115; Harbison v. Shook, 41 Ill. 142; Lewis v. Chapman, 19 Barb. 252; Kunkel v. Markell, 26 Md. 391.

1 Leonard v. Allen, 11 Cush. (Mass.) 241.

? Terwilliger v. Wands, 17 N. Y. 54; Wilson v. Goit, Id. 442; contra, Burk v. McBain, 29 Mich. 260; Swift v. Dickerman, 31 Conn. 285; ante, note, p. 102.

3 Harle v. Cotterall, 14 Law Times, N. S. 8o1.

4 Fry v. Bennett, 28 N. Y. 330; True v. Plumley, 36 Maine (1 Heath), 466; Sawyer v. Hopkins, 9 Shep. 268; Jellison v. Goodwin, 43 Maine, 287; 2 Greenl. Ev. $418; Spilling v. Carson, 27 Md. 175. Until some of the actionable words laid have been proved, evidence of the quo animo of the defendant is inadmissible. (Abrams v. Smith, 8 Blackf. 95.)

Baboneau v. Farrell, 15 C. B. 360; 24 Law Jour. Rep. N. S. 9 C. P.; 1 Jur. N. S. 14; Littlejohn v. Greeley, 13 Abb. Pr. Rep. 41; Suydam v. Moffat, 1 Sandí. 459; Root v. King, 4 Wend. 113; Garrett v. Dickerson, 19 Md. 418; see Holt v. Parsons, 23 Texas, 9. It is no objection to a recovery for the slanderous words charged, that the publication of the same words has been proved against the defendant in a former action between the same parties, for the purpose of proving malice. (Swift v. Dickerman, 31 Conn. 285; Campbell v. Butts, 3 N. Y. 173.) Where privilege is shown, express malice must be proved, or plaintiff will be nonsuited. (Caulfield v. Whitworth, 16 Weekly Rep. 936.)

Burson v. Edwards, I Carter (Ind.) 164; Pearson v. Le Maitre, 6 Sc. N. S. 607; 5 Man. & G. 700; Delegal v. Highley, 8 C. & P. 444; Elliott v. Boyles, 31 Penn. St. R. 65; The State v. Jeandell, 5 Harring. 475; Price v. Wall, 2 Quart. Law Jour. 63; Cavanagh v. Austin, 42 Vt. 576; Johnson v. Brown, 57 Barb. 118; Meyer v. Bohlfing, 44 Ind. 238; Clapp v. Devlin, 35 Superior Ct. Rep. (3 J. & S.) 170; Alpin v. Morton, 21 Ohio St. 536. Proof may be given of the publication of other words of like im

be, that evidence of a charge of a different nature, and at a different time from that alleged in the declaration, is inadmissible to prove malice or for any purpose.' This is in effect only another form of the rule that actionable words not counted upon cannot be given in evidence,2 unless a suit upon them is barred by the statute of limitations, and their admission, where the statute has run, is opposed to principle, as it in effect restores a cause of action which has been taken away by the law. It seems clear that a repetition by the defendant of the defamatory matter complained of is admissible to prove malice in fact; and it is said that within this rule any act or language of the defendant tending to show malice beyond

port. (Thompson v. Bowers, 1 Doug. 321; Stearns v. Cox, 17 Ohio, 590; Taylor v. Moran, 4 Metc. [Ky.] 127.) Extracts from a newspaper, being separate and independent libels not declared on, may be offered in evidence to prove express malice, or as showing the quo animo; such words cannot be made the foundation of a recovery of damages for an injury the plaintiff may have suffered from them, but can only affect the damages by showing the degree of malice. (Van Derveer v. Sutphin, 5 Ohio, N. S. 293; Markham v. Russell, 12 Allen [Mass.] 573.)

1 Howard v. Sexton, 4 N. Y. 157. Although in slander, the plaintiff, to prove the animus, may show a repetition of the words, or of such as show the same train of thought, yet he cannot give in evidence other words which may be the subject of another action; held, also, that it appearing that the plaintiff had recovered in another action against the defendant's son, what passed after the verdict, by way of proposal to compromise the second action was admissible to show that it was not vexatiously prosecuted. (Deffries v. Davies, 7 C. & P. 112.)

* Rundell v. Butler, 7 Barb. 260; Mead v. Daubigny, Peake, 125; and see Campbell v. Butts, 3 N. Y. 173; Keenholts v. Becker, 3 Denio, 346; Thomas v. Croswell, 7 Johns. 264; contra, Duvall v. Griffith, 2 Har. & Gill, 30; Scott v. McKinnish, 15 Ala. 662; Long v. Chubb, 5 C. & P. 55; Bartow v. Brands, 3 Green (N. J.) 248; Brittain v. Allen, 2 Dev. 120; 3 Dev. 167.

3 Inman v. Foster, 8 Wend. 602; Throgmorton v. Davis, 4 Blackf. 174; Flamingham v. Boucher, Wright, 746; see also, Lincoln v. Chrisman, 10 Leigh, 338. In an action of slander for words imputing perjury, an affidavit of the defendant, on which an indictment had been preferred, and which had been made so long before as to be barred by the statute of limitations, charging the plaintiff with the same perjury set out in the declaration, is admissible in evidence as proof of the repetition of the same words in a different form, and with more deliberation, and to show the quo animo. (Randall v. Holsenbake, 3 Hill [S. Car.] 175.)

Root v. Lowndes, 6 Hill, 518.

that implied by the original publication, the subject of the action, may be proved.'

§ 393. In an action for libel, the defendant pleaded the general issue, and also a plea under the 6th & 7th Vict. c. 96, denying actual malice, and stating an apology. On the trial, the plaintiff, in order to prove malice, tendered in evidence other publications of the defendant, going back above six years before the publication complained of held that these publications were admissible in evidence; but the court should in such a case call attention to the distance of time elapsed before the subsequent statements, and that those statements might have referred to some other and subsequent matter, so as not to show malice at the time of the publication complained of.3

2

$394. A plaintiff may, to prove malice, give evidence of a publication by the defendant made subsequently to the publication declared upon, when the subsequent publication is of a like import with that declared upon, or relating thereto, or is not actionable of itself, or explains any ambiguity in the matter declared upon.

And in an

1 Fry v. Bennett, 28 N. Y. 328; Johnson v. Brown, 57 Barb. 118. Damages recovered for previous slander may be given in evidence to show malice. (Symmons v. Blake, I M. & Rob. 477.) Where, in slander, plaintiff introduces evidence tending to show that defendant repeated the same words in another conversation, defendant is entitled to the whole of that conversation. (Perry v. Breed, 117 Mass. 155; see Distin v. Rose, 15 Alb. Law Jour. 432.)

2 Barrett v. Long, 3 Ho. of Lords Cas. 395; 8 Ir. Law Rep. 331; Adkins v. Williams, 23 Ga. 222.

3 Hemmings v. Gasson, 36 Law Jour. Rep. 252, Q. B.; 1 El. B. & E. 346.

Pearce v. Ormsby, 1 M. & Rob. 455; Mix v. Woodward, 12 Conn. 262; Williams v. Miner, 18 Id. 464; Symmons v. Blake, 1 M. & Rob. 477; Baldwin v. Soule, 6 Gray, 321; Shock v. McChesney, 2 Yeates, 473; Smith v. Wyman, 4 Shep. 13; Howard v. Sexton, 4 N. Y. 157; Kendall v. Stone, 2 Sandf. 269; Kennedy v. Gifford, 19 Wend. 296; Frazier v. McCloskey, 60 N. Y. 337; Miller v. Kerr, 2 McCord, 285; Pearson v. LeMaitre, 6 Sc. N. S. 607; 5 Man. & G. 700; Chubb v. Westley, 6 Car. & P. 436; Shrimper v. Heilman, 24 Iowa, 505; Robbins v. Fletcher, 101 Mass. 115; Ellis v. Lindley, 38 Iowa, 461; Hunsborough v. Stinnett, 25 Gratt. (Va.) 495; see Saunders v. Baxter, 6 Heisk. (Tenn.) 369.