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being disappointed, wrote the libel; that the words used. are grossly exaggerated in describing the plaintiff's conduct; that the communication was made unnecessarily public, as in the hearing of third persons, etc., or to persons who had no interest in it;3 that the defendant knew the charge was false; that it was made wantonly, without the defendant's knowing or caring whether it was true or false; that defendant caused the libel to be industriously circulated; that defendant subsequently refused to retract the slanderous words; that he refused to publish a card expressing a belief in plaintiff's innocence, save as an advertisement. Where a master has given a servant a bad character, the circumstances under which they parted, any expressions of ill-will uttered by the master then or subsequently, the fact that the master never complained of the plaintiff's misconduct whilst she was in his service, or when dismissing her would not specify the reason for her dismissal, and give her no opportunity of defending herself, together with the circumstances under which the character was given, and its exaggerated language, are each and all evidence of malice."

But on the question of malice, evidence is not admissible that the defendant has libeled or threatened to libel other persons.10 And two articles cannot be coupled to ascertain if one of them is libelous or not, the articles not being published in the same paper." In an action of slander for charging plaintiff with the commission of a

crime, the record of acquittal in a criminal prosecution for the same crime is not admissible to show malice.'

ILLUSTRATIONS.-The rector dismissed the parish schoolmaster for refusing to teach in the Sunday-school. The schoolmaster opened another school, on his own account, in the parish. The rector published a pastoral letter warning all parishioners not to support "a schismatical school," and not to be partakers with the plaintiff "in his evil deeds," which tended "to produce disunion and schism," and "a spirit of opposition to authority." Held, evidence to go to the jury that the rector cherished anger and malice against the school-master: Gilpin v. Fowler, 9 Ex. 615. The defendant wrote a letter to be published in the newspaper. The editor struck out all the more outrageous passages, and published the remainder. Held, that the defendant's manuscript was admissible in evidence, and the obliterated passages to show the animus of the defendant: Tarpley v. Blaby, 2 Scott, 642. Defendant, subsequently to the slander, admitted that there had been a dispute between himself and the plaintiff prior to the slander about a sum of money which the plaintiff claimed from the defendant. At the trial, also, the plaintiff offered to accept an apology and a verdict for nominal damages, if defendant would withdraw his plea of justification. The defendant refused to withdraw the plea, yet did not attempt to prove it. Held, evidence of malice: Simpson v. Robinson, 12 Q. B. 511. The defendant verbally accused the plaintiff of perjury. Subsequently to the slander, defendant preferred an indictment against the plaintiff for perjury, which was ignored by the grand jury. Held, admissible as evidence that the slander was deliberate and malicious, although it was a fit subject for an action for malicious prosecution: Tate v. Humphrey, 2 Camp. 73, note. The defendant tendered to B. two one-pound notes on the plaintiffs' bank, which B. returned to him, saying there was a run upon that bank, and he would rather have gold. The defendant, the very next day, told two or three people confidentially that the plaintiffs' bank had stopped, and that nobody would take their bills. Held, that this exaggeration of the report was some evidence of malice to go to the jury: Bromage v. Prosser, 4 Barn. & C. 247; 6 Dowl. & R. 296; 1 Car. & P. 475. A told the second-master of a school that he had seen one of the under-masters of the school on one occasion coming home at night "under the influence of drink,' and desired him to acquaint the authorities with the fact. The second-master subsequently stated to the governors that it was notorious that the under-master came home "almost habitually

1 Corbley v. Wilson, 71 Ill. 209; 22 Am. Rep. 98.

in a state of intoxication." There was no other evidence of malice. Held, evidence of malice to go to the jury: Hume v. Marshall, Odgers on Libel and Slander, 282. Defendant was a customer at plaintiff's shop, and had occasion to complain of what he considered fraud and dishonesty in the plaintiff's conduct of his business; but instead of remonstrating quietly with him, defendant stood outside the shop-door and spoke so loud as to be heard by every one passing down the street. The language he employed, also, was stronger than the occasion warranted. Held, evidence of malice to go to the jury: Oddy v. Lord George Paulet, 4 Fost. & F. 1009. Action against the proprietors of a newspaper for publishing a libel; the report was received from an established news agency, published in but one edition of the paper, suppressed in subsequent ones; some of the copies of the paper, unsold when it was discovered, were not destroyed, and one copy was sold, and on the following day a retraction was published. Actual malice on the part of the corporation or any of its officers was not proved. Held, that the evidence would not authorize the jury to find actual malice on the part of the defendant: Samuels v. Association, 16 N. Y. Sup. Ct. 288.

§ 1302. General Damages-Measure of.-General damages are such as the law presumes to be the natural or probable consequence of the defamatory words. Such damages are presumed only where the words are actionable per se,1 and they need not, in such cases, be proved. But if the words are not actionable per se, some damage, however slight, must be proved.3

1

The amount at which the plaintiff's general damages are to be assessed lies with the jury, who may, if they please, give vindictive damages to punish the defendant for his misconduct.

Damages for wounded feelings are

1 I. e., where the words are printed or written, and in three cases where they are oral (as to these, see ante, §§ 1245). Evidence of pecuniary loss is unnecessary to a right of action for a libelous charge of an attempt to commit murder: Republican Pub. Co. v. Miner, Col. 1889. So from the fact that one is charged with being a thief, it may be presumed that he suffered mental anguish: Peters v. Bourneau, 22 Ill. App. 177.

2 Sanderson v. Caldwell, 45 N. Y. 398; 6 Am. Rep. 105; Yeates v. Reed, 4 Blackf. 463; 32 Am. Dec. 43; Newbit v. Statuck, 35 Me. 315; 58 Am. Dec. 706.

Brooks, 20 Ill. 115; 71 Am. Dec. 252; Lick v. Owen, 47 Cal. 252; Nolan v. Traber, 49 Md. 460; 33 Am. Rep. 277; Bowe v. Rogers, 50 Wis. 598; Klewin v. Bauman, 53 Wis. 244; Sowers v. Sowers, 87 N. C. 303; Burckhalter v. Coward, 16 S. C. 435; Meyer v. Bohlfrig, 44 Ind. 238; Wilms . White, 26 Md. 380; 90 Am. Dec. 113. In Gibson v. Cincinnati Enquirer, 2 Flipp. 121, in refusing to set aside a verdict of $3,875 against a newspaper for charging the plaintiff with adultery, Brown, J., reviewed the cases on the measure of damages, saying: "A few instances where applications have been refused will show the general reluctance of courts to set aside verdicts in actions of this kind upon the ground of excessive damages. In McDougall v. Sharp, 1 City H. Rec., the charge was perjury, and the verdict $3,500, which the court refused to disturb; in Tillot

allowable, if the plaintiff's character, public or private, is proved to have been injured by the libel.' But damages for prospective suffering are not recoverable.2

The fact that the libel renders the defendant liable to an indictment does not prevent the jury from giving vindictive damages. If the jury decide that all the actual damages sustained are merely nominal, punitive damages are