must prove that he held such office or exercised such profession or trade at the date of publication, and that the words complained of were spoken of him in that capacity." Newell, Defamation, Slander & Libel, 751.

Upon a recent trial, plaintiff was permitted to prove, under objection and exception, the nature of his business, and that he was a married man. Held, no error; and this proof was competent, not to show special damages, as none had been alleged, but as bearing upon the hurtful tendency of the libel and the general damage. Morey v. Morning Journal Asso. 9 L. R. A. 621, 123 N. Y. 207.

Repetition of slanderous charge prior to the commencement of the suit may be proven to show motive. Root v. Lowndes, 6 Hill, 518, 41 Am. Dec. 762; Johnson v. Brown, 57 Barb. 118; Bassell v. Elmore, 48 N. Y. 561; Gray v. Nellis, 6 How. Pr. 290; Inman v. Foster, 8 Wend. 602; Distin v. Rose, 69 N. Y. 122; Clapp v. Devlin, 3 Jones & S. 170; Flanders v. Groff, 25 Hun, 553; Titus v. Sumner, 44 N. Y. 266; Miller v. Kerr, 2 McCord, L. 285, 13 Am. Dec. 722.

There is a conflict of authority as to whether repetitions subsequent to the commencement of the suit may be shown. In addition to the authorities above cited, see Frazer v. McCloskey, 60 N. Y. 337, 19 Am. Rep. 193; Distin v. Rose, 69 N. Y. 122; Storck v. Buffalo German R. Printing Asso. 22 Alb. L. J. 135; Johnson v. Brown, 57 Barb. 118; Miller v. Kerr, 2 McCord L. 285, 13 Am. Dec. 722, 1 Whart. Crim. Ev. p. 44, § 32; Abbott, Trial Brief, 666; Kennedy v. Gifford, 19 Wend. 296.

On a trial the witness was asked on behalf of the people, "When you read this article did you recognize its application or any particular individual?" He answered, "I did." Then he was asked, “Who was the person that you recognized that this article referred to?" and he answered "Leo Oppenheim." This evidence was improper. It was for the people to show facts from which the jury might infer that Oppenheim was the person intended by defendant. The testimony of witnesses that they recognized Oppenheim as referred to, was only the statement of their opinion. This matter was not one for experts. Their opinion must have been based upon facts known to them. They should have testified only to such facts. If this kind of testimony were proper, then the defendant could have called witnesses to testify that they

did not recognize Oppenheim as the person referred to. But such testimony would be plainly improper. This principle is distinctly decided in Van Vechten v. Hopkins, 5 Johns. 211, 4 Am. Dec. 339; Gibson v. Williams, 4 Wend. 320; Maynard v. Beardsley, 7 Wend. 561, 22 Am. Dec. 595; Weed v. Bibbins, 32 Barb. 315, and by implication in Wright v. Page, 36 Barb. 441; People v. Parr, 5 N. Y. Crim. Rep. 34.

§ 563. A Restriction upon Plaintiff's Evidence Noted."The plaintiff should never be permitted to give in evidence words which might be the subject of another action. Root v. Lowndes, 6 Hill, 518, 41 Am. Dec. 762, per Bronson, J.; DeFries v. Davies, 7 Car. & P. 112, per Tindal, J. The reason is obvious; the defendant might be compelled to pay damages twice for the same injury. In the present case, the words allowed to be proven, being actionable per se, and having been spoken after the commencement of the action, a second action would have been clearly maintainable for them. They were spoken in September, 1871, and the trial was in September, 1872. In Keenholts v. Becker, 3 Denio, 346, it was expressly adjudicated that words spoken after the commencement of the action were not admissible to aggravate the damages; and we see no reason to question the correctness of that decision." Rapallo, J., in Frazer v. McCloskey, 60 N. Y. 338, 19 Am. Rep. 193.

§ 564. Evidence in Aggravation of Damages. The violence of the language, the nature of the imputation conveyed and the fact that the defamation was deliberate and malicious will aggravate the damages. All the circumstances attending the publication may, therefore, be given in evidence, and any previous transaction between the plaintiff and the defendant which has any direct bearing on the subject-matter of the action, or is a necessary part of the history of the case; the rank or position in society of the parties; that the attack was entirely unprovoked; that defendant could easily have ascertained that the charge he made was false; and evidence may be given to show that the defendant was culpably reckless or grossly negligent in the matter; the mode, the extent and the long continuance of publication. Such evidence is admissible with a view to damages, although the publication has been admitted in the pleadings. The defendant's subsequent conduct may aggravate the damages, as if he has refused to listen to any explanation or to retract the charge he

had made. Lea v. Robertson, 1 Stew. (Ala.) 138; Gorman v. Sutton, 32 Pa. 247; Fero v. Ruscoe, 4 N. Y. 162. Defamation, Slander & Libel, 785.

Newell,

§ 565. Malice as an Element, Presumptions as to.-Malice is a necessary ingredient of the offense; but it is not necessary to render an act malicious that the party be actuated by a feeling of hatred or ill-will, or that he pursue or entertain any general bad purpose or design. Express malice may be shown by other libels not materially different; and untruthfulness and other circumstances raise an inference of express malice. It is a question of fact to be submitted to the jury. The mere fact of publication shows malice. Malice in a legal sense means a wrongful act done intentionally, without just cause or excuse. Desty, Am. Crim. L.

140 b., citing Com. v. Snelling, 32 Mass. 337; Com. v. Bonner, 9 Met. 410; Com. v. Blanding, 3 Pick. 304, 15 Am. Dec. 214. See 2 Whart. Am. Crim. L. (8th ed.) § 1648; Com. v. Harmon, 2 Gray, 289; McCullough v. McIntee, 13 U. C. C. P. 441; White v. Nicholls, 44 U. S. 3 How. 266, 11 L. ed. 591; Wheeler v. Nesbitt, 65 U. S. 24 How. 544, 16 L. ed. 765; Bromage v. Prosser, 4 Barn. & C. 247; Fairman v. Ives, 1 Dowl. & R. 255; Thompson v. Shackell, 1 Mood. & M. 187; Maynard v. Firemans Fund Ins. Co. 34 Cal. 48, 91 Am. Dec. 672; Reg. v. Gathercole, 2 Lew. C. C. 237, ante, § 8 a.

The law not only imputes malice to the defendant, but presumes that damages have been sustained by the plaintiff in consequence of the unlawful act of the defendant.

The plaintiff cannot, by innuendoes, extend the meaning of the words beyond what is justified by the words themselves, and the extrinsic facts with which they are connected. And when, however, they convey only a general imputation upon his character, equally injurious to any one of whom they might be spoken, they are not actionable, unless such application is made. Sanderson v. Caldwell, 45 N. Y. 398, 6 Am. Rep. 105.

"A publication is to be deemed malicious, if no justification or excuse therefor is shown. The publication is justified when the matter charged as libelous is true, and was published with good motives and for justifiable ends. The publication is excused when it is honestly made, in the belief of its truth and upon reasonable grounds for this belief, and consists of fair comments upon the conduct of a person in respect of public affairs,

or upon a thing which the proprietor thereof offers or explains to the public." N. Y. Penal Code, § 244.

Presumption of malice can only arise when the publication, on its face, is capable of conveying an injurious effect. Every man is presumed to foresee and intend all the mischievous consequences that may justly be expected to flow from his voluntary acts. But the cases of constructive malice are exclusively such as involve words capable of bearing in themselves a libelous meaning. The law in such cases reasonably presumes no more than this, and when a hidden defamatory meaning is sought to be attributed to words in themselves innocent, and on their face containing no such sense, by extrinsic facts outside and independent of the publication itself, the knowledge of such facts must be shown, by averment and proof, to have existed in the breast of the defendant at the time of publication. Knickerbocker L. Ins. Co. v. Ecclesine, 6 Abb. Pr. N. S. 30.

§ 566. Privileged Communications. The occasion that makes a communication privileged is when one has an interest in a matter, or a duty in regard to it, or there is a propriety in utterance, and he makes a statement in good faith to another who has a like interest or duty, or to whom a like propriety attaches to hear the utterance. Van Wyck v. Aspinwall, 17 N. Y. 190; Klinck v. Colby, 46 N. Y. 431; Sunderlin v. Bradstreet, 46 N. Y. 191, 7 Am. Rep. 322. And, in a qualified way, the occasion exists when there has been put forth a publication of general public interest, or the publication thus made in itself is one to which public interest has been invited. Then there is a right to make comment upon that publication. And like to this are the acts and conduct of public functionaries, and, of course, their official productions, when made public by themselves or in the due course of the public business. Hamilton v. Eno, 81 N. Y.

116.

"A communication made to a person entitled to, or interested in the communication, by one who was also interested in or enti tled to make it, or who stood in such a relation to the former as to afford a reasonable ground for supposing his motive innocent, is presumed not to be malicious, and is called a privileged communication." N. Y. Penal Code, § 253.

The general rule is that in the case of a libelous publication the law implies malice and infers some damage. What are called

privileged communications are exceptions to this rule. Such communications are divided into several classes, generally formulated thus: "A communication made bona fide upon any subjectmatter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contained criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation." The rule was thus stated in Harrison v. Bush, 5 El. & Bl. 344, and has been generally approved by judges and text-writers since. In Toogood v. Spyring, 1 Cromp. M. & R. 181, an earlier case, it was said that the law considered a libelous "publication as malicious unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned:" and that statement of the rule was approved by Folger, J., in Klinck v. Colby, 46 N. Y. 427, and in Hamilton v. Eno, 81 N. Y. 116. In White v. Nicholls, 44 U. S. 3 How. 266, 291, 11 L. ed. 591, 602, it was said that the description of cases recognized as privileged communications must be understood as exceptions to the general rule, and "as being founded upon some apparently recognized obligation or motive, legal, moral or social, which may fairly be presumed to have led to the publication, and, therefore, prima facie relieves it from that just implication from which the general law is deduced."

Where a communication is privileged on its face, plaintiff must show both malice and want of probable cause. Streety v. Wood, 15 Barb. 105.

The legend "private and confidential" above the caption of a letter, or the word "personal" or words of similar import will not, as matter of law, impart the status of privilege to the writing unless the evidence shows some relationship between the parties which may justly be regarded as confidential. Bradley v. Heath, 12 Pick. 163, 22 Am. Dec. 418. See Byam v. Collins, 2 L. R. A. 129, 111 N. Y. 143.

This principle applies to other cases of the same nature, and is meant to protect the communications of business and the necessary confidence of man in man, as where one employed by a sheriff to ascertain and inform him of the facts relating to an interference