it is held that the defendant may testify directly that he did not intend to charge the plaintiff with the commission of a crime, where punitive damages are demanded, to negative malice in fact as distinguished from malice in law. And declarations and statements of the plaintiff tending to establish the truth of the libel have been held. proper evidence against himself."

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§ 2458. Evidence in mitigation.-"There are various matters which it is said may be proved in mitigation of damages. We do not understand this expression to mean that any of these matters ought to or can deprive plaintiff of his right to recover such damages as he has actually suffered, but rather that they may wholly or partly remove the presumption of malice, which will otherwise be indulged, and will therefore relieve the defendant from the imposition of punitive damages."75 It has been held that a defendant may prove, in mitigation of damages, that he received letters purporting to have been written by reputable persons charging the plaintiff with certain wrongful acts; that these letters were, in fact, forgeries, and that he, believing them to be genuine, was imposed upon and induced to pub

Hankinson v. Bilby, 16 Mees. & W. 445; Gribble v. Pioneer Press, 37 Minn. 277, 34 N. W. 30; Curtis v. Mussey, 6 Gray (Mass.) 261; Stermau v. Marx, 58 Ala. 608; Hayes v. Ball, 72 N. Y. 418; Newell Defamation, Libel and Slander (2d ed.), 301; Marks v. Baker, 28 Minn. 162, 9 N. W. 678, where substantially the same question was put to the defendant, and the court held that it was not objectionable. But that case is clearly distinguishable from that at bar. There the publication complained of was a statement of facts purporting to be disclosed by public records, and was not upon its face actionable per se. It was rendered actionable only by all allegations that the defendant intended by its publication to accuse the plaintiff of having embezzled public moneys while acting as a public of ficer. In cases of that kind it is

perhaps, proper to permit the defendant to testify whether he intended, by the publication, to charge the commission of a crime. But that rule can have no application in cases like that at bar, where the libelous article is actionable upon its face; charging, as it does, open and persistent violations of the law;" but see, Friedman v. Pulitzer Pub. Co., 102 Mo. App. 683, 77 S. W. 340.

73 Short v. Acton, (Ind. App.) 71 N. E. 505; Wrege v. Jones, (N. Dak.) 100 N. W. 705.

74 Davis v. Hamilton, 88 Minn. 64, 92 N. W. 512; Barkly v. Copeland, 74 Cal. 1, 15 Pac. 307, 5 Am. St. 413; Bullard v. Lambert, 40 Ala. 204.

75 McAllister v. Detroit Free Press Co., 76 Mich. 338, 15 Am. St. 339, note; citing, Rearick v. Wilcox, 81 Ill. 77; Shipp v. Story, 68 Ga. 47; Wozelka v. Hettrick, 83 N. Car. 10.

But it

lish the libel complained of, in the belief that it was true. seems that if the defendant's belief in the truth of a libelous publication can be proved in mitigation of damages, it can only be in those cases in which he distinctly disavows all right to urge that the words published were true in fact, and merely seeks to remove the presumption of malice by disclosing "the circumstances which induced him erroneously to make the charge complained of.""" In criminal prosecution for libel, there are cases where, though the truth of the defamatory publication is not a complete defense, it may be given in evidence in mitigation of the offense.78 The general rule as to the reception of evidence in mitigation of damages is, that any circumstances may be proved "which tend to disprove malice, but do not prove the truth of the charge."79 Evidence may therefore be admitted to show what were the motives of the defendant in making the publication. There is also one class of evidence in mitigation which appears to establish rather than to disprove actual malice, that is, evidence of the existence of circumstances connected with the libelous charge, and showing provocation therefor received from the plaintiff.81 While the retraction of a libel does not relieve its publisher from liability for its publication, it may be proved in mitigation of damages.82 So, the alleged libel or slander is in the nature of a reply to the previous libel and in refutation of its charges, accompanied with disparaging remarks on the libeler not entirely irrelevant to the subject under consideration, the previous libel is in some instances received in justification, and in all proper cases is admissible in mitigation of damages. 83 And it has also been held that if the libelous statement purports to have been taken from a certain newspaper or the like the defendant may prove in mitigation that it had previously

80

76 Storey v. Early, 86 Ill. 461. "Minesinger v. Kerr, 9 Pa. St. 312; Shilling v. Carson, 27 Md. 175, 92 Am. Dec. 632; Howard v. Thompson, 21 Wend. (N. Y.) 319, 34 Am. Dec. 238; Petrie v. Rose, 5 Watts & S. (Pa.) 364.

78 Commonwealth v. Morris, 1 Va. Cas. 175, 5 Am. Dec. 515; Commonwealth v. Blanding, 3 Pick. (Mass.) 304, 15 Am. Dec. 214; Commonwealth v. Clap, 4 Mass. 163, 3 Am. Dec. 212.

80

7 Storey v. Early, 86 Ill. 461. Heilman v. Shanklin, 60 Ind. 424, 441.

81 Knott v. Burwell, 96 N. Car. 279, 2 S. E. 588; May v. Brown, 3 Barn. & C. 113, 10 E. C. L. 24.

82 Cass v. New Orleans Times, 27 La. Ann. 214.

83 Chaffin v. Lynch, 83 Va. 106, 1 S. E. 803; Myers v. Kaichen, 75 Mich. 272, 42 N. W. 820; Stewart v. Minneapolis Tribune Co., 41 Minn. 71, 42 N. W. 787.

84

appeared in such paper. But, in general, it is only such facts and circumstances as were known to the defendant and which might have influenced him in making the defamatory statements that are available in mitigation of damages.85

§ 2459. Character-Damages.-The general bad character or reputation of the plaintiff may be shown in mitigation of damages.86 There are also some instances, contrary to the prevailing rule, in which the reputation or report as to his guilt of the specific act has been held admissible. So, there are some instances in which the character of the plaintiff has been deemed to be in issue and evidence of good character or as to specific acts has been admitted on that theory, but this general subject has been sufficiently treated elsewhere. So, the subject of the competency of evidence to show the character, social relations, financial standing, or the like, of either of the parties, as well as to show the elements of damages generally, has been treated in this volume in the chapter on damages.

4 Wyatt v. Gore, 1 Holt N. P. 303; see also, McDonald v. Woodruff, 2 Dill. (U. S.) 244; Williams v. Greenwade, 3 Dana (Ky.) 438; Hewitt v. Pioneer Press Co., 23 Minn. 178; Bennett v. Bennett, 6 Car. & P. 586; but see, Sun Print. & Pub. Co. v. Schenck, 98 Fed. 925; Gray v. Pub. Co., 55 N. Y. S. 35; Tucker v. Lawson, 2 Times L. R. 593; Ingram v. Lawson, 9 Car. & P. 326.

85 Sun Pub. Co. v. Scheuck, 98 Fed. 925, 929; Morning Journal Asso. v. Duke, 128 Fed. 657; Butler v. Barrett, 130 Fed. 944; Hatfield v. Lasher, 81 N. Y. 246; Bush Prosser, 11 N. Y. 347.

v.

86 Morning Journal Asso. v. Duke, 128 Fed. 657; Davis v. Hamilton, 88

VOL. 3 ELLIOTT Ev.-60

Minn. 64, 92 N. W. 512; Lamos v. Snell, 6 N. H. 415, 25 Am. Dec. 468; Stone v. Varney, 7 Metc. (Mass.) 86, 39 Am. Dec. 762; Clark v. Brown, 116 Mass. 504; Byrket v. Monohon, 7 Blackf. (Ind.) 83, 41 Am. Dec. 212; Shaw v. State, (Tex.) 12 S. W. 741.

ST See, Wetherbee v. Marsh, 20 N. H. 561, 51 Am. Dec. 244; Sanders v. Johnson, 6 Blackf. (Ind.) 50, 36 Am. Dec. 564; Nelson v. Evans, 1 Dev. (N. Car.) 9; Calloway v. Middleton, 2 A. K. Marsh. (Ky.) 372, 12 Am. Dec. 499; Hallowell v. Guntle, 82 Ind. 554; but see, Gray v. Elzroth, 10 Ind. App. 587, 37 N. E. 551. 88 See Vol. I §§ 167, 171.

But many other authorities hold that the burden is upon the plaintiff to show that his case is not within the statute." This is generally held to be the rule, where the plaintiff in making out his case shows prima facie that it falls within the bar of the statute. The burden, in one sense at least is generally upon him, where in reply to a plea of the statute he sets up part payment or a new promise or acknowledgment,10 or a fraudulent concealment of the cause of action, or absence of the defendant, or similar exceptions taking the case out of the statute. It is held, however, that when such an exception is shown it then devolves upon the defendant to show such facts or circumstances as prevent the operation of the exception.12

§ 2462. Special statutes affecting the right.-As shown in the preceding section, under certain special statutes, particularly those creating new liabilities and rights, the special limitation therein contained is a limitation or condition of the right itself. It is the general rule that a party whose cause of action is based upon the statute must bring himself and his case within the statute. It is therefore held that under such statutes, even if the burden in other cases is upon the defendant as to the general statute of limitations, it is upon the plaintiff to show that his action based on such a special statute was instituted within the time therein limited. This subject is well explained by the court, in a recent case, as follows: "As the plaintiff failed in an essential respect to make out a case as defined by the statute, the defendant's motion for a nonsuit should have been granted. The burden was upon her to show that her action was begun within the time limited. Without such proof, the defendant's liability could not be claimed. Unlike the general statute of limitations, this special statute creating the right and giving the remedy does not merely confer at privilege upon the defendant to interpose a definite time limitation as a bar to the enforcement of a distinct and independent liability, but it defines and limits the existence of the right itself. In the one case the statute furnishes the defendant with a technical defense to which he may resort or not, as he sees fit; while in the other it gives the plaintiff a right conditioned upon its enforcement within a defined time. Hence, while it has been generally held that the defendant must plead the general statute of limitations, or set it out in a brief statement under the general issue, in order to be protected by it, the reasoning that leads to that result, as a matter of pleading, has no application, when, as in this case, the statute confers upon the plaintiff a peculiar right, which, if not exercised, ceases to exist by its own limitations."13

§ 2463. Questions of law or fact.-Where there is a trial by jury. and the question is as to whether the cause of action is barred by the statute of limitations the court usually instructs the jury as to the law, as in other cases, and leaves the jury to determine the facts, and, in

230; Smith-Frazer Boot &c. Co. v. White, 7 Kans. App. 11, 51 Pac. 799; Burnham v. Courser, 69 Vt. 183, 37 Atl. 288; see also, Faust v. Hosford, 119 Iowa 97, 93 N. W. 58.

13 Poff v. New England Tel. &c.

Co., 72 N. H. 164, 55 Atl. 891, citing: Bomar v. Hagler, 7 Lea (Tenn.) 85; Caldwell V. McFarland, 11 Lea (Tenn.) 463; Buswell Limitations, § 375.