the well recognized rule was that the courts should affix to the words a plain and natural meaning. The modern rule, however, sustained by the weight of authority and founded in better reason, is that where there is any ambiguity in the language the words may be construed in the reasonable sense in which the hearers or readers actually understood them, and to that end the testimony of the hearers or readers is received, together with evidence of all the surrounding circumstances.

The meaning actually intended by the author is immaterial upon the question of liability, except so far as he may have made it apparent at the time. If his ambiguous language was intended harmlessly, but was reasonably understood in an injurious sense, he is responsible. And if the language is not defamatory and was not so taken, there is no injury, although the author desired and intended there should be.

§ 318. Certainty.-The rule of law is that there is no liability unless there is certainty, (1) as to the person charged, (2) as to the imputation made. The reference must be to some ascertained or ascertainable person, who must, of course, be the plaintiff. The person may be ascertained either from the language itself or from the surrounding circumstances which give peculiar point to the language. So, where the reference is to a class of individuals and not to any member, the circumstances may be such that the jury can determine which was meant. to merely charge as to two witnesses who have testified contradictorily, "one of you two has committed

But

perjury," is not actionable, for it is not and can not be certainly applied to either.

The imputation made must be certain, or capable of being made certain. The words need not, however, be technically exact as a description of the charge. Any words that distinctly assume guilt in the party charged are sufficient. But it is not essential that the words be affirmative. They may be actionable where the form of the language is interrogative; and it is conceivable that a statement in the negative may be so worded or emphasized as to convey the meaning of an affirmative charge. In determining whether an imputation is certain, it is proper to consider not only the words, but all the surrounding circumstances that may give especial force to language used.

§ 319. Malice. By most law writers and by the courts it is stated that malice is an essential ingredi ent of actions for libel or slander. But, as in cases for malicious prosecution, the term malice has a peculiar meaning. It is not synonymous with hatred or ill-will. Malice may in a legal sense exist, where in fact the defendant's real motive was to benefit the plaintiff. For example, where a newspaper publishes the fact that a defamatory charge has been made, and adds the comment that the publisher believes it to be false.

Malice is said to be either express or implied; and the distinction is clearly marked. Radically different principles control. As the equivalents of express and implied malice, the words, " malice in fact," and "malice in law," are also used.

Some confusion in the law has resulted from the

failure to keep the distinction clear. The courts have often used the word malice without qualification to express either meaning, and some decisions have therefore been misleading.

Malice in law or implied malice is such as the court infers without evidence of malice. The inference is made from the fact of the falsity of the charge, in accordance with the presumptions heretofore noted. This inference is not permitted by the law to be overcome by evidence that the motive was not in fact malicious. It can be overcome only by showing that the words complained of were published upon what is called a privileged occasion. On account of this inflexible rule of law, some text-writers have sought to establish the proposition that there is but one kind of malice, i. e., express malice, or malice in fact, and that instead of holding that there is "malice in law" in certain cases, the courts should hold that in such cases malice is not essential. The results, however, are the same, and the courts have declined to adopt the nomenclature urged by these text-writers.

Express malice, or malice in fact, includes actual malice in its popular acceptation. As an eminent judge said, "It means a wrong feeling in a man's mind." Any indirect or dishonest motive which induces one to defame another may be malice. Gross negligence or wantonness in the disregard of other's rights may be sufficient evidence to warrant a finding that malice existed.

Actual malice may be shown by intrinsic evidence, viz., the kind of language used, its exaggerated character, the manner of its publication; or it may

be shown by extrinsic evidence, viz., by any facts not contained in the publication itself, as for instance, by other publications, subsequent repetitions, refusal to retract, the existence of an old grudge. Actual malice is always a question to be determined by the jury, and not by the court.

By reason of the presumptions in plaintiff's favor, above referred to, it results that the questions arising are usually as to the sufficiency of the facts to afford a defense. The defenses will now be considered.

§ 320. Justification.-In libel and slander this word means only that the charge made is true. The presumption being that a defamatory charge is false, the burden falls upon the defendant to prove, if he can, the truth of the charge. And the uniform rule is that if the defendant wishes to avail himself of this defense he must affirmatively plead it. This is called a plea or answer of justification. The defendant may always defend by showing the truth of the imputation, and the defense, if established, is complete; for, there can be no legal wrong of defamation by speaking the truth of anyone. Under a plea of justification, however, the defendant must show that not only the words but their meaning, as alleged, are true. If he disputes that the words mean what they are alleged to mean, he does not do so by way of justification, but to that extent by denial.

It is a principle peculiar to civil suits for libel and slander that where the defamatory charge is that crime has been committed, it is necessary, in order to sustain a plea of justification, to prove the truth of the charge by the same degree of proof that would be required to convict the party if under indictment

for the crime. In other words, justification of a charge of crime must be proven beyond a reasonable doubt. But if no crime is charged the justification may be established by a mere preponderance of evidence.

Where justification is the issue, it is wholly immaterial to the question of liability whether the defendant acted maliciously or not. If the charge is true, the defense is complete, even though there was gross malice; and if the charge is found not true, the defendant is not relieved from liability by the fact that he acted in good faith. The only effect of evidence as to defendant's motive in such case can be to enhance or diminish the amount of damages recovered.

§ 321. Privilege.-As has been said, the truth is a complete defense in libel and slander. Wherever truth is shown the action fails. The question now arises, when does the law excuse a defamatory charge that is false? Upon grounds of public policy, common convenience and the general welfare of society, there must be immunity upon certain occasions. Statements made upon such occasions are called privileged communications. They are divided into two classes and are said to be of either:

1st. Absolute privilege.

2d. Qualified privilege.

It is to be noted that the privilege attaches to the occasion, and not to the matter stated, for, if the same matter be afterward repeated upon an unprivileged occasion, it has no protection.

§ 322. Absolute privilege.-The occasions of absolute privilege are few, and the tendency of the