by this same witness, that her character for chastity had not been good in that neighborhood for the past eight or ten years.

Counsel have cited many authorities and discussed at length, and with much learning, the question as to whether evidence of general reports of the guilt of plaintiff as to the particular vice or crime charged is admissible in mitigation of damages, both upon the ground that it proves the plaintiff's character to be less valuable (being already smirched) and because it tends to rebut malice upon the part of the defendant. Upon these questions, we find both the authorities and text-books in much conflict and confusion. There is no principle upon which all can be harmonized.

In Odgers on Libel and Slander, second English edition, 312, 313, it is declared that, save in one or two exceptional cases, such evidence is inadmissible for any purpose. To the same effect is Mahoney v. Belford, 132 Mass. 393.

are di

The text of Newell on Slander and Libel follows that of Odgers largely, but the numerous authorities collated 590 vided, some being for and some against the proposition. Townshend on Slander and Libel, section 411, says that some cases permit such evidence, but numerous decisions hold the contrary. In Folkard's Starkie on Slander and Libel, sections 714719, it appears that the authorities preponderate slightly in favor of the admission of such evidence.

In some cases, the existence of a general report of plaintiff's guilt of the charge imputed has been admitted to rebut malice: Calloway v. Middletown, 2 A. K. Marsh. 372; 12 Am. Dec. 409; Young v. Slemons, 1 Wright, 124; B—————— v. I———————, 22 Wis. 372; 94 Am. Dec. 604. In the case last cited, the statement appears to be wholly unsupported as to this point, by the authority relied on to sustain it, viz: v. Moor, 1 Maule & S. 285.

In a few cases, also, the existence of mere reports communicated to the defendant have been admitted to show the motive: Galloway v. Courtney, 10 Rich. 414; Williams v. Greenwade, 3 Dana, 432; Kennedy v. Gregory, 1 Binn. 85.

In our own state, all the authorities seem to be in accord that mere reports and rumors of guilt are not to be received, but that general rumors or reports of such guilt are admissible, but the ground of their admission is placed upon the fact that they throw light upon the character of the plaintiff and its value: Sanders v. Johnson, 6 Blackf. 50; 36 Am. Dec. 564; Kelley v. Dillon, 5 Ind. 426; Blickenstaff v. Perrin, 27 Ind. 527.

In Kelley v. Dillon, 5 Ind. 426, it is said: "In the cases of

Henson v. Veatch, 1 Blackf. 369, and Sanders v. Johnson, 6 Blackf. 50, 36 Am. Dec. 564, this court has distinctly drawn the line between rumors and suspicions, and general rumors and general suspicions. While the former have been held wholly inadmissible, 591 the latter have been allowed, not to prove the truth of the words, but to show the character the plaintiff sustained at the time the words were spoken, for the purpose of measuring the damages."

In Blickenstaff v. Perrin, 27 Ind. 527, after stating that general rumors, etc., are allowable, while mere rumors, etc., are not, the court says: "The reason for the distinction is plain. If, before the speaking of the words complained of, there exists a general rumor or suspicion that the party is guilty of the criminal act charged against him, the character is already traduced, and the evidence is, in effect, the same as that of general bad character in reference to the crime imputed, which is only admissible when the charge has obtained general notoriety, and a general belief or suspicion of its truth is entertained. Here it was not alleged that the report referred to was general, nor that any belief or suspicion of its truth was entertained, even by those who heard it, and, therefore, it was not proper matter in mitigation."

Thus it is plain that in our state, evidence of these general rumors is received because such evidence is the same in kind and quality, at least, as proof of general bad character with reference to the vice or crime imputed.

While there is some authority to support the claim that such evidence may be heard to rebut malice, our own decisions, to which we have referred, and the weight of authority outside of our state, are to the effect that such evidence is received in mitigation simply to show the value of the character attacked, and because a slander will not inflict so much damage upon a character already disparaged and sullied as upon one pure and unsullied: Clark v. Brown, 116 Mass. 504; Mahoney v. Belford, 132 Mass. 393; Drown v. Allen, 91 Pa. St. 393; 592 Wetherbee v. Marsh, 20 N. H. 561; 51 Am. Dec. 244; v. Moor, 1 Maule & S. 285.

There was here no question of privilege, and where there is no confidential relation, no existing duty to speak, and no common interest, a private individual has no right to repeat a slanderous accusation merely because he has heard it: Burton v. Beasley, 88 Ind. 401; Branstetter v. Dorrough, 81 Ind. 527.

We are unable to say there was any harmful error in the court's refusal to permit a witness to answer the question, "Did you

The only answer respon-
Neither, standing alone,
The offer to prove in-

hear the elder brother speak about it?" sive to this question was "yes" or "no." would have aided appellant in the least. cluded much more, but the additional matter is not available because not responsive to the question.

The speaking of the actionable words being shown, and their falsity admitted and proved, the law infers malice unless they were privileged: Byrket v. Monohon, 7 Blackf. 84; 41 Am. Dec. 212; Burton v. Beasley, 88 Ind. 401.

The plaintiff then becomes entitled to compensatory damages, at least, without regard to the existence of express malice or malice in fact: Branstetter v. Dorrough, 81 Ind. 527; Belck v. Belck, 97 Ind. 73.

If express malice also exists, then the plaintiff is allowed to recover punitive or exemplary damages as well. These damages are allowable only upon proof of express malice. Express malice, however, is abundantly and overwhelmingly established by the evidence of appellant himself. The character of the stories related by him to the near relatives of the appellee, and the fact that they were admitted to have been intended as a counter-irritant, or by way of reprisal, leave no room for us to doubt the existence of express malice upon his part. There was, therefore, no harmful error in the instruction complained 593 of, even if it did fail to limit the right to give punitive damages to cases where express malice had been proved: Belck v. Belck, 97 Ind. 73; Meyer v. Bohlfing, 44 Ind. 238; De Pew v. Robinson, 95 Ind. 109; Casey v. Hulgan, 118 Ind. 590.

To sustain a complaint for slander, it is not required to prove the charge to have been made in the precise words alleged in the pleading, but it is necessary to prove that the defendant spoke the words, in substance, or substantially as alleged in the complaint; that is, the words themselves must be proved, or enough of them to substantially make out the charge included in some set of words counted on. It is not enough to prove the speaking of similar or equivalent words: Wheeler v. Robb, 1 Blackf. 330; 12 Am. Dec. 245; Linville v. Earlywine, 4 Blackf. 469; Creelman v. Marks, 7 Blackf. 281; Iseley v. Lovejoy, 8 Blackf. 462; Tucker v. Call, 45 Ind. 31; Durrah v. Stillwell, 59 Ind. 139; McCallister v. Mount, 73 Ind. 559.

The fifth cause for new trial is: "The court erred in refusing to give the jury the first instruction as asked by the defendant, and in modifying said instruction, and in giving said instruction as modified."

It is a well-established rule that where an exception is taken to several acts of the court jointly, or where several acts of the court are assigned as a cause for new trial jointly, and not severally, all of the acts complained of must be erroneous in order to sustain the exception or cause for new trial: Cincinnati etc. R. R. Co. v. Madden, 134 Ind. 462; Kackley v. Evansville etc. R. R. Co., 7 Ind. App. 169; King v. Easton, 135 Ind. 353; Louisville etc. Ry. Co. v. Renicker, 8 Ind. App. 404.

The first instruction asked by appellant disregarded the rule that enables the plaintiff to recover by proving the words charged in his complaint substantially, although 594 not exactly. This instruction was, therefore, rightly refused, and the error assigned is not well taken.

The record fails to show any exception to the refusal to give the third instruction asked. The tenth instruction asked was properly refused for the same reason as the first.

The thirteenth was not strictly accurate as asked. It contains this statement: "Other words of similar import will not sustain this action, and if such be the proof, your verdict must be for the defendant." The conclusion drawn does not necessarily follow. Other words of similar import might have been proven, and the substance of the charge might also have been proven. In fact, this is exactly what did occur on this trial. Unless an instruction accurately states the law, there is no error in refusing it: Over v. Schiffling, 102 Ind. 191.

It must be admitted that there is some confusion in the instructions given, but we find no question saved upon them which will justify a reversal of the judgment. We have read the evidence with considerable care, and are strongly of the opinion that the punishment of the appellant was richly deserved. Judgment affirmed.

SLANDER-CHARGING ADULTERY.-Words imputing adultery to a married woman are actionable by statute, but not at common law: Smalley v. Anderson, 2 T. B. Mon. 56; 15 Am. Dec. 121; Elliot V. Ailsberry, 2 Bibb. 473; 5 Am. Dec. 631. An imputation that a woman is unchaste is actionable in itself: Barnett v. Ward, 36 Ohio St. 107; 38 Am. Rep. 561; Alfele v. Wright, 17 Ohio St. 238; 93 Am. Dec. 615. Words charging an unmarried woman with fornication are actionable per se: Kelley v. Flaherty, 16 R. I. 234; 27 Am. St. Rep. 739, and note.

SLANDER-EVIDENCE OF CURRENT RUMORS IN MITIGATION OF DAMAGES.-A defendant may prove that, when the slanderous words were spoken, there was a general report current to the same effect as the words spoken: Wetherbee v. Marsh, 20 N. H. 561; 51 Am. Dec. 244, and note; Farr v. Rasco, 9 Mich. 353; 80 Am. Dec. 88, and note. In an action for slander, statements by others than the defendant about the matter respecting which the slanderous

words were spoken are admissible in evidence to show want of actual malice: Callahan v. Ingram, 122 Mo. 355; 43 Am. St. Rep. 583. In actions for slander, general reports of the truth of the charges are not admissible for any purpose: Pease v. Shippen, 80 Pa. St. 513; 21 Am. Rep. 116. See, also, the note to Anthony v. Shepens, 13 Am. Dec. 499, 500.

SLANDER-IMPLIED MALICE.-Under the Louisiana law, malice may be implied from any kind or form of words slanderous in their nature: Tarleton v. Legarde, 46 La. Ann. 1368; 49 Am. St. Rep. 353, and note. In actions for slander, if actionable words, not privileged, are proved, malice is inferred: Estes v. Antrobus, 1 Mo. 197; 13 Am. Dec. 497; Jellison v. Goodwin, 43 Me. 287; 69 Am. Dec. 62, and note; Mousler v. Harding, 33 Ind. 176; 5 Am. Rep. 195.

SI.ANDER-VARIANCE.-In slander, the plaintiff need only prove the words alleged substantially as laid. He need not prove the precise words: Posnett v. Marble, 62 Vt. 481; 22 Am. St. Rep. 126; Herst ▼. Ringwalt, 3 Yeates, 508; 2 Am. Dec. 392; Desmond v. Brown, 29 Iowa; 53; 4 Am. Rep. 194; Bundy v. Hart, 46 Mo. 460; 2 Am. Rep. 525. In an action for slander, the language laid in the declaration must be proved, or at least so much as fully sustains the charge. Equivalent words in meaning will not be sufficient: Baker v. Young, 44 Ill. 42; 92 Am. Dec. 149. and note.