general rules of evidence as to relevancy, competency, and the like.219 A repetition by a person in a slander suit of a charge laid in the complaint, though not made in the same, or substantially the same, words, is yet admissible in evidence for the purpose of showing

v. Rosenow, 84 Wis. 620, 54 N. W. 1089. By the weight of authority, prior and contemporaneous publications of the same libel, other than that de clared on, are competent evidence to show malice, whether such other publications may themselves be made the basis of recovery in separate suits or not; and the danger of a double recovery for the same publications is to be avoided by a caution from the court that damages are to be allowed only for the article sued on. Van Derveer v. Sutphin, 5 Ohio St. 293; Pearce v. Lemaitre, 5 Man. & G. 700; Chamberlin v. Vance, 51 Cal. 75; Shock v. McChesney, 2 Yeates, 473; Gibson v. Cincinnati Enquirer, 2 Flip. 121, Fed. Cas. No. 5,392; Townsh. Sland. & L. § 392; Odger, Sland. & L. 272; Newell, Def. 331; Larrabee v. Minnesota Tribune Co., 30 N. W. 462, 36 Minn. 141; Casey v. Hulgan, 118 Ind. 590, 21 N. E. 322; Beneway v. Thorp, 77 Mich. 181, 43 N. W. 863; Wabash Printing & Pub. Co. v. Crumrine (Ind. Sup.) 21 N. E. 904; Halsey v. Stillman, 48 Ill. App. 413; Thibault v. Sessions, 101 Mich. 279, 59 N. W. 624 (including refusal to retract); Randall v. Evening News Ass'n, 97 Mich. 136, 56 N. W. 361; Ellis v. Whitehead, 95 Mich. 105, 54 N. W. 752; McCleneghan v. Reid, 34 Neb. 472, 51 N. W. 1037; Ranson v. McCurley, 140 Ill. 626, 31 N. E. 119. In New York, other publications of the same or different libels by the defendant are not admitted to prove malice, unless suit upon them is barred by limitation, or for some other reason. Frazier v. McCloskey, 60 N. Y. 337. But see Enos v. Enos, 135 N. Y. 609, 32 N. E. 123. Evidence as to publication subsequent to commencement of suit seems not to be admissible. Upton v. Hume, 24 Or. 420, 33 Pac. 810; Eccles v. Radam, 75 Hun, 535, 27 N. Y. Supp. 486. As to evidence of intention under statute, see Wynne v. Parsons, 57 Conn. 73, 17 Atl. 362; Arnott v. Standard Ass'n, 57 Conn. 86, 17 Atl. 361. Evidence that defendant, a priest, after action brought against him, mentioned it to his congregation, and said the suit was not against him but fell upon the congregation, "and we will see if the church shall destroy the vermin or if the vermin the church," is admissible to show malice. Morasse v. Brochu, 151 Mass. 567, 25 N. E. 74.

219 In an action for slander, where the case is one of qualified privilege, evidence of the falsity of the charge is admissible on the part of plaintiff to prove malice, though such evidence is not in itself sufficient for that purpose. Laing v. Nelson, 40 Neb. 252, 58 N. W. 846. In an action against a rival merchant for libel in attacking plaintiff's credit, a letter written by defendant to plaintiff's creditor, threatening to withdraw his patronage if the claim was compromised, is admissible to show malice. Simons v. Burnham (Mich.) 60 N. W. 476. Thus, as to evidence admissible, it was held: In an action for slander, all the facts and conversation leading up to the slander

malice in speaking the words charged.220 In Gribble v. PioneerPress Company,221 the defendant, inter alia, called the plaintiff (a member of the bar) a "half imbecile shyster," and subsequently apologized for its mistake in not calling him a "wholly imbecile shyster." It was held that publications before and after the one complained of, and even after suit was brought, were admissible to show actual malice, and thereby to aggravate damage. "The circumstance that other libels are more or less frequent, or more or less remote, merely affects the weight and not the admissibility of the evidence." Attempted justification may be considered as evidence of actual malice.223

DEFENSES.

176. Defenses to an action for defamation may be

(a) Statutory, or

(b) Common law.

Statutory Defenses.

Many statutes have been passed to alter the rule of the common law as to the ability of a person uttering a defamation to escape from liability in tort. The English statute provides that, on apology and payment into the court of a sum of money by way of amends for the injury sustained by the defamation in any public news

ous words are admissible, to show the intention of the person uttering them, and how they were understood by the hearers. Kidd v. Ward (Iowa) 59 N. W. 279. On the other hand: In an action for slander in charging plaintiff with the larceny of property belonging to defendant, the fact that defendant was tried and acquitted of the offense is not evidence of malice or want of probable cause. Sibley v. Lay, 44 La. Ann. 936, 11 South. 581. Knowledge of circumstances on defendant's part may be a condition of malice. Norton v. Livingston, 64 Vt. 473, 24 Atl. 247; Moore v. Thompson, 92 Mich. 498, 52 N. W. 1000. Smith v. Matthews, 9 Misc. Rep. 427, 29 N. Y. Supp. 1058 (no inference of actual malice from neglect to investigate into the truth).

220 Enos v. Enos, 135 N. Y. 607, 32 N. E. 123; Ellis v. Whitehead, 95 Mich. 105, 54 N. W. 752. See, also, McCleneghan v. Reid, 34 Neb. 472, 51 N. W. 1037; Ranson v. McCurley, 140 Ill. 626, 31 N. E. 119.

221 Gribble v. Pioneer Press Co., 34 Minn. 342, 25 N. W. 710, citing cases at page 344, 34 Minn., and page 710, 25 N. W. Id., 37 Minn. 277, 34 N. W. 30 (on another point). Tindal, J., in Pearson v. Lemaitre, 5 Man. & G. 700–718. 222 Marx v. Press Pub. Co., 134 N. Y. 561, 31 N. E. 918, and cases cited.

paper or other periodical publication, the defamer has a full defense, 223 which may be alternative.224 The apology must be full and sufficient, printed in suitable type, and conform to the statutory requirements as to time and place of publication.225 Express malice may, however, be shown by the defendant.226 There is a corresponding act in Canada,227 and in many of the states of the Union.228

SAME-COMMON-LAW DEFENSES.

177. The common-law defenses peculiar to defamation 229 may operate by way of—

(a) Justification, or

(b) Mitigation.200

178. Defamation may be justified by showing either that the charge claimed to be defamatory was

(a) True, or that it was

(b) Privileged.

179. The truth of the charge is a full justification in a civil action for defamation.

223 6 & 7 Vict. c. 96, § 2; Chadwick v. Hereapath, 3 C. B. 885; O'Brien v. Clement, 16 Mees. & W. 159.

224 Hawkesley v. Bradshaw, 5 Q. B. Div. 302, 49 Law J. Q. B. 333.

225 Lafone v. Smith, 3 Hurl. & N. 735, 28 Law J. Exch. 33.

226 Barrett v. Long, 3 H. L. Cas. 395.

227 St. 50 Vict. cc. 22, 23; Ashdown v. Manitoba Free Press Co., 20 Can. Sup. Ct. 43; article on "Libel, Act of 1890," 15 Can. Law T. 89.

228 Laws Mich. 1885, p. 354, § 3; Park v. Detroit Free Press Co., 72 Mich. 560, 40 N. W. 731; Gen. Laws Minn. 1887, c. 191; Gen. Laws 1889, c. 131; Allen v. Pioneer Press Co., 40 Minn. 117, 41 N. W. 936; Clementson v. Minnesota Tribune Co., 45 Minn. 303, 47 N. W. 781; Holston v. Boyle, 46 Minn. 432, 49 N. W. 203.

229 The conventional defenses have been discussed in chapter IV. Accord and satisfaction is a good defense to an action for defamation, as in other torts. Lane v. Applegate, 1 Starkie, 97. Thus, if by agreement mutual apologies are made, this may be a valid satisfaction of right of action. Boosey v. Wood, 34 Law J. Exch. 65. Statute of limitations: A slander once barred cannot be revived by an admission that it had formally been made, and malice cannot be attached to such admission. Vickers v. Stoneman, 73

230 Etchison v. Pergerson, 88 Ga. 620, 15 S. E. 680.

Our law allows a man to speak the truth, though maliciously, 221 without showing good motive or justifiable end. This is the common-law rule generally, but not universally, recognized by constitutions and enforced by statutes. Hence, the truth of a charge claimed to be defamatory is a full justification to a civil action.232 The justification must be as broad as the charge. Thus proof of embezzlement is not broad enough to sustain the charge of embezzlement and attempt to blow open a safe and destroy the books.253

Mich. 419, 41 N. W. 495. Leave and license: In Howland v. George F. Blake Manuf'g Co., 156 Mass. 543, 31 N. E. 656, Knowlton, J., said: “If the defendant is guilty of no wrong against the plaintiff except a wrong invited and procured by the plaintiff for the purpose of making it the foundation of an action, it would be most unjust that the procurer of a wrongful act should be permitted to profit by it." And see 1 Ames, Lead. Cas. 422, citing King v. Waring, 5 Esp. 13; Rogers v. Clifton, 3 Bos. & P. 587-592; Weatherston v. Hawkins, 1 Term R. 110-112; Smith v. Wood, 3 Camp. 323; Duke v. Harmer, 14 Q. B. 185; Palmer v. Hummerston, 1 Cab. & E. 36; Gordon v. Spencer, 2 Blackf. 286; Smith v. Sutton, 13 Mo. 129. And see Coles v. Thompson (Tex. Civ. App.) 27 S. W. 46.

231 Bigelow, Lead. Cas. 112, note h; Thorley v. Lord Kerrey, 4 Taunt. 355. 232 Castle v. Houston, 19 Kan. 417, Chase, Lead. Cas. 132; Donaghue v. Gaffy, 53 Conn. 43, 2 Atl. 397; Press Co. v. Stewart, 119 Pa. St. 584, 14 Atl. 51; Royce v. Maloney, 57 Vt.325; Wilson v. Marks, 18 Fla. 322; Perry v. Porter, 124 Mass. 338; Drake v. State, 53 N. J. Law, 23, 20 Atl. 747; Heilman v. Shanklin, 60 Ind. 424; Hathorn v. Congress Spring Co., 44 Hun, 608; Root v. King, 7 Cow. 613,4 Wend. 113; Ellis v. Buzzell, 60 Me. 209; McClaugherty v. Cooper, 39 W. Va. 313, 19 S. E. 415 (under Code, c. 158, § 4). And see Chaffin v. Lynch, 83 Va. 106, 1 S. E. 803; Atlanta Journal v. Mayson, 92 Ga. 640, 18 S. E. 1010; Bank v. Bowdre, 92 Tenn. 723, 23 S. W. 131. In Mississippi, under Code 1880, § 1004, truth operates only in mitigation of damages. McLean v. Waring (Miss.) 13 South. 236. In Michigan, notice that justification will be a defense must be given. Wheaton v. Beecher, 79 Mich. 443, 44 N. W. 927. As to Massachusetts statute. see Brown v. Massachusetts Title Ins. Co., 151 Mass. 127, 23 N. E. 733. Mr. Townshend (Sland. & L. 310) has shown that, at common law, truth was regarded as a plea in mitigation only, until 1735; that the phrase, "The greater the truth, the greater the libel," has been attributed to both Lord Mansfield and Lord Ellenborough; and that the justice and expediency of the present general rule that truth may be an absolute defense is neither universally nor generally conceded. See note 2, p. 308, and Delaware Ins. Co. v. Croasdale, 6 Houst. 181. Miller v. Brooks, 65 Hun, 624, 20 N. Y. Supp. 359.

233 Thompson v. Pioneer Press Co., 37 Minn. 285, 33 N. W. 856. A charge of incest and pregnancy is not justified by proof of incest only. Edwards v.

235

The fact that a teacher was of a grossly immoral character, and in the habit of having liquor in the school, is no defense to an action for publishing an article in the newspaper charging such teacher with taking indecent liberties with his scholars.234 A general charge cannot be justified by the truth of the charge in a single instance." But it is not necessary to prove the truth of all details of the charge. It is enough if defendant show the matter complained of to be substantially true,—that is, to prove the gist of the statement, provided the details which are not justified produce no different effect on the mind of the person to whom publication is made than the actual truth would do.236 Thus, to charge that certain

Kansas City Times, 32 Fed. 813. Cf. McNaughton v. Quay (Mich.) 60 N. W. 474 (where the charge was of perjury and larceny, and the perjury was justified, and a denial made as to the charge of larceny). And, generally, see Weaver v. Lloyd, 2 Barn. & C. 678; Bissell v. Cornell, 24 Wend. 354; Torrey v. Field, 10 Vt. 353; Burford v. Wible, 32 Pa. St. 95; Wilson v. Beighler, 4 Iowa, 427.

234 Thibault v. Sessions (Mich.) 59 N. W. 624; McClaugherty v. Cooper, 39 W. Va. 313, 19 S. E. 415 (to justify charge of perjury); Becherer v. Stock, 49 Ill. App. 270. To justify a newspaper article charging a person with both "frequent" acts of adultery and a specific act of the same nature, not only sufficient acts must be proven to justify the general charge, but proof of the specific act must be given also. Miller v. McDonald (Ind. Sup.) 39 N. E. 159. Lamphere v. Clark (Sup.) 29 N. Y. Supp. 107 (charge of lewdness); Feely v. Jones, Id. 446 (abuse of funds by an attorney); Bishop v. Latimer (1861) 4 Law T. 775 (badly treated client). Cf. Fitch v. Lemmon, 27 U. C. Q. B. 273; Clement v. Lewis (1822) 3 Brod. & B. 297, 7 Moore, 200 (shameful conduct of an attorney).

235 Clarkson v. Lawson (1829) 6 Bing. 266–587 (charge that a proctor had been suspended three times not supported by proof of a single suspension); Wakley v. Cooke (1849) 19 Law J. Exch. 91, 4 Exch. 510 (that plaintiff had been once recovered against for a libel does not justify defendant in calling him a "libelous journalist"). And see Swann v. Rary, 3 Blackf. 298; Sheehey v. Cokley, 43 Iowa, 183; Burford v. Wible, 32 Pa. St. 95; Ricket v. Stanley, Blackf. 169; Stilwell v. Barter, 19 Wend. 485. But see Alcorn v. Hooker, 7 Blackf. 58. 236 Willmett v. Harmer (1839) 8 Car. & P. 695; Alexander v. Northeastern Ry. Co., 34 Law J. Q. B. 152. Cf. England v. Bourke, 3 Esp. 80; Fraser, Torts, 90. And see Palmer v. Adams, 137 Ind. 72, 36 N.. E. 695 (kidnapping a girl); Nettles v Somervell, 6 Tex. Civ. App. 627, 25 S. W. 658 (publishing plaintiff as a dead beat); Fidler v. Delavan, 20 Wend. 57 (charging plaintiff as a cheat and a swindle).