The evidence is clearly of a nature to tempt the jury into giving excessive damages; and much opposition has been shown toward the doctrine. It is urged with force that the slander receives its added force not from the defendant's wealth, but from his character, and that the latter, not the former, should be shown. In Palmer v. Haskins (*) Marvin, J., said :

"The question, so far as principle is concerned, hinges upon the assumption that wealth influences the rank in society of its possessor, and that the slander of a man of rank and influence is more injurious than the slander of one of less influence. It may be admitted that the slander of a man of high character and influence would be more destructive to the character of the party slandered than the slander of one without character and influence. Hence the character and standing in society of the defendant have long been admitted in evidence in this class of cases. But I am not satisfied that wealth is a necessary ingredient to constitute character, standing, and influence in society. It may form an element in fixing character and influence, but not necessarily. Why not limit the inquiry, then, to the question, what are the character, standing, and influence of the defendant in the society where the slander was uttered?" ()

Since it is the influence of the defendant's wealth on the mind of the hearers that aggravates the offense, rather than the mere possession of wealth, it has been held in Maine that proof should be made of the general reputation of the defendant for wealth in the place where the slander was uttered, rather than the amount of property he in fact possesses. (©) But perhaps the best solution of the question is that all facts bearing on character, standing, and influence should go to the jury, subject to a charge that they must only consider them in this bearing. The poverty of the plaintiff cannot be

(*) 28 Barb. 90, 92.

() Acc. Justice v. Kirlin, 17 Ind. 588.
(c) Stanwood v. Whitmore, 63 Me. 209.

9446.

REPETITION.

29

shown in aggravation; (*) but his social position and standing may be shown, that the jury may properly estimate compensation for injury to them.()

§ 446. Repetition.-No damages are usually allowed to be given in slander for any repetition of the defamatory words by the defendant subsequent to the commencement of the suit. Such repetition may be, in some cases, shown in order to prove the character of the original transaction, and the motives of the defendant, (c) but not with a view to enhancing the damages by obtaining any relief for the new injury.' So it has been held in Pennsylvania, that while the jury may consider the degree of malice with which the words were spoken in assessing the damages, as shown by the subsequent acts and declarations of the defendant, they cannot give damages for such acts or declarations, however infamous or criminal they might be.(4) But in some jurisdictions it is held that though other charges of a similar nature made against the plaintiff by the defendant cannot be shown in aggravation, (*) yet a subsequent

'Pearson v. Lemaitre, 5 Man. & Gr. 700; Schoonover v. Rowe, 7 Blackf. 202.

(*) Case v. Marks, 20 Conn. 248; Perrine v. Winter, 73 Ia. 645; Reeves v. Winn, 97 N. C. 246; contra, M'Almont v. M'Clelland, 14 S. & R. 359 (semble).

() Peltier v. Mict, 50 Ill. 511; Wilson v. Shepler, 86 Ind. 275; Clements v. Maloney, 55 Mo. 352; Klumph v. Dunn, 66 Pa. 141; but contra, Prescott v. Tousey, 50 N. Y. Super. Ct. 12.

(c) Ward v. Dick, 47 Conn. 300; Stowell v. Beagle, 79 Ill. 525; Hinkle v. Davenport, 38 Ia. 355; Ellis v. Lindley, 38 Ia. 461; Rea v. Harrington, 58 Vt. 181. In Vincent v. Dixon, 5 Ind. 270, they were not allowed to be proved in aggravation where they were not alleged in the declaration. In Saunders v. Baxter, 6 Heisk, 369, it was said that subsequent publications of a libel could only be given in evidence when they contain an explanation or confession of the former publication, or an express admission of malice. (4) Stitzell v. Reynolds, 67 Pa. 54.

(*) Schenck v. Schenck, 20 N. J. L. 208; Frazier v. McCloskey, 60 N. Y. 337. Unless such charges cannot form the subject of an action on account

repetition of the very slander sued on may be shown to aggravate damages. (")

447. Plea of justification. It has been held that an unsuccessful plea of justification was a good ground for increasing the damages. But the inclination of the later cases is against this idea; which, in truth, leads to an effort to punish what may be a perfectly innocent act. So, in Indiana, in slander for perjury, if the defendant plead the truth of the words in justification, and fail to prove the plea, the filing of that plea is not an aggravation; and, on the contrary, if, from the evidence, it appear that the defendant, though he cannot strictly justify, had reason to believe, from the plaintiff's conduct, that the charge was true, such fact may go to the jury in mitigation of damages. So, in Tennessee, an invalid and insufficient plea of justification in an action of slander upon which no judgment could have been entered, is entitled to no weight in aggravation of damages under the plea of not guilty.'

The decisions upon this point are, however, not in harmony. In some jurisdictions it is held that such a plea is evidence of actual malice, and a high aggravation of the offense. (b) So, in Vermont, it is competent for 1 Byrket v, Monohon, 7 Blackf. 83. 2 Braden v. Walker, 8 Humphreys 34.

of the statute of limitations: Inman v. Foster, 8 Wend. 602; Titus v. Sumner, 44 N. Y. 266. In such a case it is said that they are allowable to show animus; if they might still serve as a cause of action, the jury might be influenced to give damages twice for the same matter.

(^) Darby v. Ouseley, 1 H. & N. 1; Hatch v. Potter, 7 Ill. 725; Stowell v. Beagle, 79 Ill. 525; Leonard v. Pope, 27 Mich. 145; Williams v. Harrison, 3 Mo. 411; Johnson v. Brown, 57 Barb. 118.

() Simpson v. Robinson, 12 Q. B. 511; Robinson v. Drummond, 24 Ala. 174; Pool v. Devers, 30 Ala. 672; Downing v. Brown, 3 Col. 571; Henderson v. Fox, 83 Ga. 233; Jackson v. Stetson, 15 Mass. 48; Clark v. Binney, 2 Pick. 113, 121; Doss v. Jones, 5 How. Miss. 158; Gorman v. Sutton, 32 Pa. 247; Burckhalter v. Coward, 16 S. C. 435; Wilson v. Nations, 5 Yerg. 211; Faucitt v. Booth, 31 Up. Can. Q. B. 263.

§ 447.

PLEA OF JUSTIFICATION.

31

the jury, on the question of damages, to take into consideration the fact that the defendant, in his pleadings, has repeated and attempted to justify his statements.(*) On the other hand, in other jurisdictions, such a plea, interposed in good faith, is no ground for increasing the damages.() As just stated, we think the last rule is the true one, and that the plea should not, as matter of law, carry with it any effect of aggravation. The necessity of such a consequence may prevent an honest defense. As was said, in Rayner v. Kinney, the motive with which the justification is pleaded, should be "for the consideration of the jury. If they find that it was done with the intention to injure the plaintiff, they may rightly consider it an aggravation of the damages; but where no wrongful intention is found, there is no just ground for the punishment of the defendant." In New York, the severer rule formerly obtained, () although, before the Code of Procedure, it had perhaps been modified by a limitation of the increase of the damages to the extent of the injury sustained by the repetition. (") But it would seem to have been wholly superseded by that act, which permits the defendant, in his answer, to allege both the truth of the matter charged as defamatory, and any mitigating circumstances, and whether he prove the justification or not, to give in evidence the mitigating circumstances.() And it is now held by the New York

(*) Cavanaugh v. Austin, 42 Vt. 576.

() Ward v. Dick, 47 Conn. 300; Cummerford v. McAvoy, 15 Ill. 311; Sloan v. Petrie, 15 Ill. 425; Thomas v. Dunaway, 30 Ill. 373; Corbley v. Wilson, 71 Ill. 209; Murphy v. Stout. I Ind. 372; Pallet v. Sargent, 36 N. H. 496; Rayner v. Kinney, 14 Oh. St. 283, overruling the dictum contra in Dewit v. Greenfield, 5 Oh. 225.

(c) Fero v. Ruscoe, 4 N. Y. 162.

(4) Fulkerson v. George, 3 Abb. Pr. 75.

() N. Y. Co. Civ. Proc., § 535; Bush v. Prosser, 11 N. Y. 347.

Court of Appeals, that where the defendant, in an action of libel or slander, pleads under this section, facts both in justification and mitigation, the allegations in justification, though unproved, are no longer evidence of malice to be considered by the jury, or taken as enhancing the plaintiff's damages. (*) In these jurisdictions, however, the malicious filing of a plea in justification may be considered in aggravation of damages. (")

§ 448. Mitigation-Disproof of actual malice.-Damages may be mitigated by disproof of actual malice. So in an action for a printed libel, it is proper to admit evidence of what was said by the defendant in directing the printing, in order to disprove actual malice in the publication, and to influence the question of damages. The terms and conditions on which the defendant requested the printing and publication to be done, and on which the witness agreed to do it, are admissible in evidence as pertinent and material in respect to the motives of the defendant in procuring the publication complained of. (©) In Illinois, where the plaintiff was a candidate for an office, and, in the excitement of a campaign and without the defendant's knowledge, a libellous article was published in a paper of which the defendant was editor, it was held that these facts could be proved to show that there was no actual malice, and thus reduce exemplary damages, but could not be shown in mitigation of compensatory damages.(4) So where it appears that the defendant was

(^) Klinck v. Colby, 46 N. Y. 427; Decker v. Gaylord, 35 Hun 584. The remarks, therefore, of Mr. Justice E. D. Smith, to the contrary, in delivering the opinion of the Supreme Court of New York, in Bennett v. Matthews, 6+ Barb. 410, were at variance with the settled law.

() Beasley v. Meigs, 16 Ill. 139; Freeman v. Tinsley, 50 Ill. 497; Aird v. Fireman's Journal Co., 10 Daly 254.

(c) Taylor v. Church, 8 N. Y. 452. (d) Rearick v. Wilcox, 81 Ill. 77.