which the jury, and the jury alone, ought to determine." (Per Lord Campbell, C.J., in Cooke and another v. Wildes, 5 E. & B. at pp. 340, 341; 24 L. J. Q. B. at pp. 372, 373.) Illustrations. The defendant on a privileged occasion used language stronger than necessary; but the jury found "that the words were spoken honestly in the discharge of a public duty, without malice, but carelessly." Judgment for the defendant upheld. Pittard v. Oliver, (1891) 1 Q. B. 474; 60 L. J. Q. B. 219; 39 W. R. 311; 63 L. T. 247; 64 L. T. 758; 55 J. P. 100. Defendant charged the plaintiff, his porter, with stealing his bed-ticks, and with plaintiff's permission subsequently searched his house, but found no stolen property. The jury found that defendant bonâ fide believed that a robbery had been committed by the plaintiff, and made the charge with a view to investigation ; but added, "the defendant ought not to have said what he could not prove." Held, that this finding was immaterial, that the occasion was privileged, and that there was no evidence of malice. Judgment for the defendant. Howe v. Jones, (1884) 1 Times L. R. 19; (1883) ib. 461. A young lady, the daughter of a clergyman, wrote a letter about her investments at her father's dictation; the letter was a libel on the plaintiff, but the occasion was privileged. She stated in the box that she believed what she wrote to be true, because her father told her to write it: she was ready to sign or write what her father told her; and she believed he would not tell her what was wrong. It was contended that belief must not be merely passive and irrational; that the young lady could have no real and honest belief in the truth of what she was writing, if she chose to believe whatever her father told her without any inquiry. The jury found that "the young lady had been like wax in the hands of her father." Verdict for a farthing damages. The Divisional Court set the verdict aside on the ground that there was no evidence whatever of malice. Hesketh v. Brindle, (1888) 4 Times L. R. 199. A lady wrote a libellous letter on a privileged occasion. It was admitted, on the one hand, that she had therein truthfully stated what she had heard from others, and, on the other hand, that what others so stated to her was untrue. Cave, J., withdrew the case from the jury, and directed a verdict for the defendant. Aberdein v. Macleay, (1893) 9 Times L. R. 539. 66 You did The defendant on a privileged occasion, asserted that the plaintiff had written to his agent a letter which showed that a claim which the plaintiff had made was fraudulent. At a subsequent interview with the plaintiff, he said: write such a letter. I have seen the letter and I have a copy of it." challenged to produce his copy, however, he said he had mislaid it. no such letter. Cockburn, C.J., left the question of malice to the jury, and they found a verdict for the plaintiff for 408. damages. Hancock v. Case, 2 F. & F. 711. When There was When a tradesman or manufacturer publishes advertisements vaunting the excellence of his own goods and stating that they are better than those of his rivals, such action is not malicious if it be done solely in order to promote the sale of his own goods, unless, indeed, it can be shown that he knew that his statements were false. That they now prove to be exaggerated is no evidence of malice. White v. Mellin, (1895) A. C. 154; 64 L. J. Ch. 308; 43 W. R. 353 ; 72 L. T. 334; 59 J. P. 628. Mogul Steamship Co. v. McGregor, 15 Q. B. D. 476; 21 Q. B. D. 544 ; 23 Q. B. D. 598; (1892) A. C. 25. I. Extrinsic Evidence of Malice. Malice may be proved by extrinsic evidence showing that the defendant bore a long-standing grudge against the plaintiff, that there were former disputes between them, that defendant had formerly been in the plaintiff's employ, and was dismissed for misconduct. Any previous quarrel, rivalry, or ill-feeling between plaintiff and defendant,—in short, almost anything defendant has ever said or done with reference to the plaintiff-may be urged as evidence of malice. The plaintiff has to show what was in the defendant's mind at the time of publication, and of that no doubt the defendant's acts and words on that occasion are the best evidence. But if plaintiff can prove that at any other time, before or after, defendant had any ill-feeling against him, that is some evidence that the ill-feeling existed also at the date of publication; therefore, all defendant's acts and deeds that point to the existence of such ill-feeling at any date, are evidence admissible for what they are worth. (Cooper v. Blackmore and others, (1886) 2 Times L. R. 746.) In fact, whenever the state of a person's mind on a particular occasion is in issue, everything that can throw any light on the state of his mind then, is admissible, although it happened on some other occasion. (See R. v. Francis, L. R. 2 C. C. R. 128; and Blake v. Albion Assurance Society, 4 C. P. D. 94; 48 L. J. C. P. 169; 27 W. R. 321; 40 L. T. 211.) Thus any other words written or spoken by the defendant of the plaintiff, either before or after those sued on, or even after the commencement of the action, are admissible to show the animus of the defendant; and for this purpose it makes no difference whether the words tendered in evidence be themselves actionable or not, or whether they be addressed to the same party as the words sued on or to some one else. (Pearson v. Lemaitre, 5 M. & Gr. 700; 12 L. J. Q. B. 253; 7 Jur. 748; 6 Scott, N. R. 607; Mead v. Daubigny, Peake, 168.) Such other words need not be connected with or refer to the libel or slander sued on; provided they in any way tend to show malice in defendant's mind at the time of publication. (Barrett v. Long, 3 H. L. C. 395; 7 Ir. L. R. 439; 8 Ir. L. R. 331; Bolton v. O'Brien, 16 L. R. Ir. 97, 483.) And not only are such other words admissible in evidence, but also all circumstances attending their publication, the mode and extent of their repetition, &c.; the more the evidence approaches proof of a systematic practice of libelling or slandering the plaintiff, the more convincing it will be. (Bond v. Douglas, 7 C. & P. 626; Barrett v. Long, 3 H. L. C., p. 414.) The jury, however, should be told, whenever the other words so tendered in evidence are in themselves actionable, that they must not give damages in respect of such other words, as though they were being sued on (Pearson v. Lemaitre, suprà); but the omission by the judge to give such a caution will not amount to a misdirection. (Darby v. Ouseley, 1 H. & N. 1; 25 L. J. Ex. 227; 2 Jur. N. S. 497.) The defendant is always at liberty to prove the truth of such other words so given in evidence; for he could not plead a justification as to them, as they were not set out on the record. (Stuart v. Lovell, 2 Stark. 93; Warne v. Chadwell, 2 Stark. 457.) So if the defendant reasserts the libel in numbers of his periodical appearing after commencement of the action. (Chubb v. Westley, 6 C. & P. 436); or in private letters. written after action (Pearson v. Lemaitre, suprà); (unless such letters be themselves privileged, as in Whiteley v. Adams, 15 C. B. N. S. 392; 33 L. J. C. P. 89; 10 Jur. N. S. 470; 12 W. R. 153; 9 L. T. 483); or if the defendant continues to sell copies of the libel at his shop up to two days before the trial (Plunkett v. Cobbett, 5 Esp. 136; Barwell v. Adkins, 2 Scott, N. R. 11; 1 M. & Gr. 807); these facts. are admissible as evidence of deliberate malice, though no damages can be given in respect of them. A plea of justification may be such a reassertion of the libel or slander. No doubt where the words are privileged, the mere fact that a plea of justification was put on the record is not of itself evidence of malice sufficient to go to the jury; it is rather proof that the defendant still honestly believes in the truth of his assertion. (Wilson v. Robinson, 7 Q. B. 68; Caulfield v. Whitworth, 16 W. R. 936; 18 L. T. 527; Brooke v. Avrillon, 42 L. J. C. P. 126.) But if there be other circumstances suggesting malice, the plaintiff's counsel may also comment on the justification pleaded; and, indeed, in special circumstances, as where the defendant at the trial will neither abandon the plea, nor give any evidence in support of it, thus obstinately persisting in the charge to the very last without any sufficient reason, this alone may be sufficient evidence of malice. (Warwick v. Foulkes, 12 M. & W. 508; Simpson v. Robinson, 12 Q. B. 511; 18 L. J. Q. B. 73.) Illustrations. The defendant wrote a letter to be published in the newspaper. The careful editor struck out all the more outrageous passages, and published the remainder. The defendant's manuscript was admitted in evidence, and the obliterated passages read to the jury, to show the animus of the defendant. Tarpley v. Blaby, 2 Scott, 642; 2 Bing. N. C. 437; 1 Hodges, 414; 7 C. & P. 395. A long practice by the defendant of libelling the plaintiff is cogent evidence of malice; therefore other libels of various dates, some more than six years old, some published shortly before that sued on, are all admissible to show that the publication of the culminating libel sued on was malicious and not inadvertent. Barrett v. Long, 3 H. L. C. 395; 7 Ir. L. R. 439; 8 Ir. L. R. 331. A libel having appeared in a newspaper, subsequent articles in later numbers of the same newspaper, alluding to the action and affirming the truth of the prior libel, are admissible as evidence of malice. Chubb v. Westley, 6 C. & P. 436. Barwell v. Adkins, 1 M. & Gr. 807; 2 Sc. N. R. 11. Mead v. Daubigny, Peake, 168. So, if there be subsequent insertions of substantially the same libel in other newspapers. Delegal v. Highley, 8 C. & P. 444; 5 Scott, 154; 3 Bing. N. C. 950; 3 Hodges, 158. Where the defendant has made charges of crime or fraud on a privileged occasion, which have subsequently been clearly disproved in a legal proceeding, it will be deemed malicious for him to repeat these charges or re-assert his belief in their truth. Glendinning v. Emanuel, (1886) 3 Times L. R. 110. Seaman v. Netherclift, (1876) 1 C. P. D. 540; 45 L. J. C. P. 798; 24 So, if the defendant persists in repeating the slander or disseminating the libel pending action. In Pearson v. Lemaitre, 5 M. & Gr. 700; 6 Scott, N. R. 607; 12 L. J. Q. B. 253; 7 Jur. 748, a letter was admitted which had been written subsequently to the commencement of the action, and fourteen months after the libel complained of. In Macleod v. Wakley, 3 C. & P. 311, Lord Tenterden admitted a paragraph published only two days before the trial. Defendant was director of a company of which plaintiff was auditor. Defendant made a charge against plaintiff in his absence at a meeting of the Board. At the next meeting of the Board plaintiff attended with his solicitor, having in the meantime written to defendant threatening an action. Defendant in consequence refused to make any charge or produce any evidence against the plaintiff in the presence of his solicitor. Held, no evidence of malice. Harris v. Thompson, 13 C. B. 333. Where the defendant verbally accused plaintiff of perjury, evidence that subsequently to the slander defendant preferred an indictment against the plaintiff for perjury, which was ignored by the grand jury, was received 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, n. And see Finden v. Westlake, Moo. & Malkin, 461. In an action for slander and libel on privileged occasions, the only evidence of malice was some vague abuse of the plaintiff, uttered by the defendant on Saturday before the trial in a public-house at Rye. Such abuse had no reference to the slander or the libel or to the action. Held, that this evidence was admissible; but that the judge should have called the attention of the jury to the vagueness of the defendant's remarks in the public-house, to the fact that they were uttered many months after the alleged slander and libel, and that therefore they were but very faint evidence that the defendant bore the plaintiff malice at the time of the publication of the alleged slander and libel. A new trial was ordered. Costs to abide the event. Hemmings v. Gasson, E. B. & E. 346; 27 L. J. Q. B. 252; 4 Jur. N. There had been a dispute between plaintiff and defendant prior to the slander about a sum of 207. 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, ample evidence of malice. Damages 407. Simpson v. Robinson, 12 Q. B. 511; 18 L. J. Q. B. 73; 13 Jur. 187. |