action for words imputing perjury, the plaintiff was allowed, for the purpose of showing the quo animo, to give in evidence an indictment subsequently preferred by the defendant against him, and which was ignored.' But in an action of slander, for charging the plaintiff with stealing two beds, it was held not competent for the plaintiff, for the purpose of showing malice, to prove that the defendant subsequently entered a complaint against him, before a magistrate, for stealing a lot of wood and old iron; first, because the words used in the complaint did not relate to the charge which was the subject of the action; and secondly, because such using of the words was a proceeding in a court of justice, before a magistrate having jurisdiction of the supposed offense."

§ 395. The plaintiff may, it seems, to prove malice, give evidence of defamatory publications by the defendant concerning him after the commencement of the action; but the authorities are conflicting. In general, what occurs after the commencement of the action is inadmissible; but where the words published led to the arrest of the plaintiff after the commencement of his action, it was held that the defendant might have excluded all evidence of what took place after the commencement of the action, but having consented to its admission, the jury were at liberty to take it into consideration.*

§ 396. Where evidence of another or other publica

1 Tate v. Humphrey, 2 Camp. 73, note.

Watson v. Moore, 2 Cush. 133.

3 Ante, note 6, p. 660; Howell v. Cheatem, Cooke, 247; Scott v. Montsinger, 2 Blackf. 454; Teagle v. Deboy, 8 Blackf. 134; Warne v. Chadwell, 2 Stark. 457. Slanderous words (not actionable) spoken since the suit was commenced, are admissible in evidence to show the sense in which the words laid were spoken. (Carter v. M'Dowell, Wright, 100; and M'Donald v. Murchison, 1 Dev. 7; contra, Lucas v. Nichols, 7 Jones Law [N. Car.] 32.) Or to show malice. (Sonneborn v. Bernstein, 49 Ala. 168.)

Goslin v. Corry, 8 Sc. N. S. 21; 7 Man. & G. 343; and see Harrison v. Pearce, I Fos. & Fin. 567.

tions than that declared upon is admitted for the purpose of showing malice only, the jury should be instructed that it is admitted for that purpose alone, and that they are not to give damages for other than the words charged in the declaration. An instruction was given to the jury to the effect that a letter written by defendant and given in evidence by the plaintiff, was admissible only to show malice, and for no other purpose, and that they had a right to award such damages to plaintiffs as they thought them entitled to under all the circumstances proved in the case; held, that the caution to the jury in respect to the effect of the letter was not sufficient."

§ 397. Evidence tending to make out an admission by the defendant, subsequently to the speaking of the words, of a dispute existing between him and the plaintiff before the speaking of the words, about a sum of money claimed to be due from the defendant to the plaintiff, is admissible to show express malice. So to prove malice plaintiff may give evidence tending to show that defendant coveted the possession of plaintiff's land, and hoped by defaming him to compel him to remove; but he cannot show that defendant had, by promises of reward and threats of vengeance, endeavored to prevent the attendance of witnesses for plaintiff."

$398. In an action of slander for charging an infant with larceny, evidence of a previous quarrel between the defendant and the plaintiff's father and next friend, is inadmissible to prove malice in the defendant towards

1 Scott v. McKinnish, 15 Ala. 662; Barrett v. Long, 8 Ir. Law Rep. 331.

Letton v. Young, 2 Metc. (Ky.) 558.

Simpson v. Robinson, 18 Law Jour. Rep. 73, Q. B.; 13 Jur. 187.

4 Morgan v. Livingston, 2 Rich. 573.

Kirkaldie v. Paige, 17 Vt. 256. Matter occurring two years before to show

malice. (Harmon v. Harmon, 61 Maine, 233.)

the plaintiff. In an action against the publisher of the magazine in which the libel was published, evidence of personal malice of the editor against the plaintiff was held inadmissible. So the refusal of the editor of a newspaper to publish a retraction of the libel was held not to be evidence of malice against the publisher of such newspaper.3 On the trial of an action for a libel in a newspaper, it appeared that the defendant employed F. to print the newspaper in question, and that S., one of F.'s workmen, had set up the article in the absence of the defendant and of the editor of the paper; held that the plaintiff could not ask a witness if he heard S. express any ill-will towards the plaintiff. In the same case, it was held that the plaintiff might give in evidence an article published in a subsequent number of the same newspaper, with the defendant's knowledge and consent, justifying the publication of the article complained of as libelous, though such article was not published until after the action was commenced.

§ 399. The language itself whether oral or written, may be evidence of malice, and where the occasion renders the publication prima facie privileged, the jury may take the language into consideration to determine the intent with which the publication was made. And expressions in excess of what the occasion warrants may be evidence of malice."

'York v. Pease, 2 Gray, 282.

? Robertson v. Wylde, 2 M. & Rob. 101.

3 Edsall v. Brooks, 2 Robertson, 414; 33 How. Pr. R. 191; Ackerman v. Jones, 37 Superior Ct. Rep. (5 Jones & S.) 42.

4 Goodrich v. Stone, 11 Metc. 486.

5 Wright v. Woodgate, 2 C. M. & R. 573; Tyrw. & G. 12; Gilpin v. Fowler, 9 Ex. 615; Cooke v. Wildes, 6 El. & Bl. 328; Jackson v. Hopperton, 16 Com. B. N. S. 829; Spill v. Maule, Law Rep. 4, Ex. 232; ante, § 288, and last clause of § 241; also Swadling v. Tarpley, in Appendix, post.

Ante, § 244 b, and § 389.

§ 400. Interposing a justification which the defendant either abandons or fails to prove, may be regarded as an aggravation of the original wrong, and may be taken into consideration by the jury in estimating damages.' It is evidence of malice, and of continued malice.3 In New York, since the Code of Procedure, the rule allowing mitigating circumstances has been changed, and a plea of justification on the ground of truth is not to be considered as an aggravation. A justification on the ground of truth was held not to be an aggravation of the charge, where the defendant had reason to believe the charge to be true, or where the plea of truth was so defective that

1 Fero v. Ruscoe, N. Y. 162; Wilson v. Robinson, 14 Law Jour. Rep. 196, Q. B.; 9 Jurist, 726; Lee v. Robertson, I Stew. 138; Richardson v. Roberts, 23 Ga. 215; Pool v. Devers, 30 Ala. 672; Updegrove v. Zimmerman, 13 Penn. St. R. (1 Harris), 619; Gorman v. Sutton, 32 Id. 247; Doss v. Jones, 5 How. (6 Miss.) 158; Freeman v. Tinsley, 50 Ill. 497; Robinson v. Drummond, 24 Ala. 74; Beasley v. Meigs, 16 Ill. 139; Spencer v. McMasters, Id. 405; Smith v. Wyman, 4 Shep. 13; Fawcett v. Booth, 31 Up. Can. Q. B. 263; contra, Murphy v. Stout, I Ind. 372; Shoulty v. Miller, Id. 544; Shank v. Case, 1 Carter (Ind.), 170; Millison v. Sutton, Id. 508; Starr v. Harrington, Id. 515; and see Swails v. Butcher, 2 Carter, 84; Sloan v. Petrie, 15 Ill. 425; Thomas v. Dunaway, 30 Ill. 373; Rayner v. Kinney, 14 Ohio, N. S. 283; Pallet v. Sargent, 36 N. Hamp. 496; Cavanagh v. Austin, 42 Vt. 576; Ransome v. Christian, 49 Ga. 491. And by statute in Massachusetts, a plea of truth is not an aggravation of damages.

The judge, in addressing the jury, commented upon the fact that the defendant had refused, at the trial, to make an apology and withdraw his justification, though he gave no evidence in support of it, as evidence of malice. Held no misdirection. (Simpson v. Robinson, II Law Times, 266; 18 Law Jour. Rep. 73, Q. B.; 13 Jur. 187.) That the defendant procured evidence to prove the truth of his charges, and then declined to plead in justification, may be properly referred to the jury on the question of malice, though not on that of damages. (Bodwell v. Osgood, 3 Pick. 379.) The defendant endeavoring to obtain testimony of the truth of the alleged defamatory matter, is not of itself evidence of malice. (Ormsby v. Douglass, 37 N. Y. 482.) Nor is the fact of pleading a justification, of itself, evidence of malice. (Caulfield v. Whitworth, 18 Law Times, N. S. 527.) Efforts of defendant to have plaintiff indicted, may be shown to aggravate damages. (Harbison v. Shook, 41 Ill. 142.)

Jackson v. Stetson, 15 Mass. 48; Alderman v. French, 1 Pick. 1.

3 Wilson v. Nations, 5 Yerg. 211.

4 Klinch v. Colby, 46 N. Y. 427; but see Bennett v. Matthews, 64 Barb. 410; Distin v. Rose, Alb. Law Jour. 432.

Byrket v. Monohon, 7 Blackf. 83; and see Shoulty v. Miller, 1 Ind. 544.

no judgment could have been entered upon it,' or where the plea was withdrawn before the trial. Where in an action for libel defendant pleaded not guilty and a justification, he offered no proof of the justification, but gave evidence to show that the publication was made under circumstances rendering it a privileged communication ; held, that the jury, in forming their opinion (upon the first issue, whether or not the communication was privileged), ought not to take into consideration the fact that the justification had been pleaded and abandoned.3

§ 401. In an action for a libel, the defendant, to justify a charge made by him against the plaintiff of unfairness and partiality as collector of the United States taxes, proved that the plaintiff had refused to receive bills of a certain bank in payment of a tax. To rebut this evidence, the plaintiff offered a letter of instructions to him from the commissioner of the revenue, designating the description of the bills which the plaintiff should receive. It was held that such evidence was admissible as negativing the charge of unfairness and partiality in the plaintiff's conduct. It was in the same case held that the plaintiff could not repel a charge of partial and unjust conduct, in the exaction of commissions not authorized by law, by showing that such commissions were taken honestly, through a mistaken construction of the law.

1 Braden v. Walker, 8 Humph. 34.

? Gilmore v. Borders, 2 How. (3 Miss.) 824.

3 Wilson v. Robinson, 7 Q. B. 68; 9 Jurist, 726; 14 Law Jour. N. S. 196, Q. B. 4 Stow v. Converse, 3 Conn. 325.

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