Husband and wife, father and child, brothers and sisters, guardian and ward, master and servant, principal and agent, landlord and tenant, lawyer and client, partners, and in one case it was held that intimate friendship might be a sufficient ground.

§ 329. Communications in self-defense.-If the statement complained of be one which has been invited or requested by the plaintiff, it is privileged, even though false, provided it be made in good faith. For example, if the defendant had previously made the statement under a privilege, and the plaintiff demands an explanation in the presence of strangers, or if defamatory words had been said by the defendant to the plaintiff alone, and plaintiff afterwards bring a stranger and demand whether defendant had used the defamatory words, such subsequent statements are deemed to be made in self-defense and are privileged if in good faith.

§ 330. The remedy.-The civil remedy for libel or slander is an action for damages. The courts will not interfere by injunction to restrain the publication of a libel or slander, for the reason that it must first be established before a jury whether the matter is or is not actionable. But after a verdict for the plaintiff, a court of equity may enjoin the subsequent repetitions of the defamatory matter.

§ 331. The damages.-Considered from the point of view of the jury, the damages awarded may be:

1st. Contemptuous, as where the defendant has been technically guilty of defamation, but the jury think the plaintiff greatly in fault, and therefore assess the damages at a nominal sum.

2d. Substantial or compensatory, where the jury

aims to arrive at the actual injury suffered by the plaintiff.

3d. Exemplary or punitive, where the jury seek to express their sense of the defendant's harsh and malicious conduct by fining him in an amount beyond the compensatory damages.

Considered from the judge's point of view the damages assessed may be either:

1st. General damages, viz., the natural and probable consequences of the false charge, which are presumed by the law without evidence in all cases where the words are actionable per se.

2d. Special damages, viz., such as the law will not infer, but requires to be established by evidence.

Wherever general damages are recoverable, special damages may also be recovered if specially pleaded and proven. Where a charge is not actionable per se, there is no cause of action unless the special damages be alleged and proven, and the recovery is limited to such special damages.

The amount recoverable by the plaintiff as compensatory damages may be larger or smaller according to the evidence. Whatever goes to show the greater extent of the injury is said to be in aggravation of damages; whatever goes to show the less extent of the injury is said to be in mitigation of damages.

By way of aggravation, evidence may be received of the social position and influence of both plaintiff and defendant and their pecuniary circumstances so far as the same may bear upon the influence exerted by the charge, the publicity of the charge, the fact that it was wholly unprovoked, and by some courts it is

held that an unsuccessful plea of justification may be considered in aggravation, though such is not the general rule.

By way of mitigation of damages, evidence may be received that the words were spoken in passion or excitement provoked by plaintiff, and hence all the injury is not attributable to defendant's fault; that the defendant had no actual malice, was insane or drunk, so far as the same may have appeared at the time of the defamation, and so have caused the wrong to have a less injurious effect; that plaintiff's character was bad, or that general rumors existed. that he was guilty; that the defendant has made ample retraction. While the fact that others had previously published the same defamatory matter is not in itself admissible in mitigation, yet the defendant ought not to be held liable for any injury not resulting from his act, and it seems that evidence of previous publication by others will be received, if it can be shown that part of the injury claimed by plaintiff was in fact caused by such other publications and not by the defendant's act. Whether upon a plea of justification only, any evidence in mitigation may be given has been a disputed question, but the weight of authority is that such evidence may be admissible, whatever the issue.

Exemplary or punitive damages are based upon the mental attitude of the wrong-doer, and are by way of rebuke or punishment for his malice. They may be given on account of the violent or exaggerated character of the charge as showing deliberate malice. Evidence may be received of previous

transactions that indicate malice in the case at bar; of recklessness in uttering the false statement; of the publicity and repetitions of the charge, as showing unusual malice; of a refusal to listen to explanations, or after explanation to make retraction. It is the uniform rule, however, that exemplary damages can not be allowed where the defamation is punishable criminally. Hence, where libel is an indictable offense, evidence of the defendant's actual motive, malicious or otherwise, is not properly admissible, except so far as it can be shown to have affected the actual injury.

It is to be noted that in slanders of the fourth class, i. e., those actionable only by reason of special damages, the plaintiff is confined to such actual injury as he alleges and proves, and since exemplary damages are not based upon actual injury, it follows that in cases of slander not actionable per se, no exemplary damages can be recovered.

CHAPTER XXVIII.

WRONGS TO CIVIL AND POLITICAL RIGHTS.

§ 332. General nature. In a large sense every right is a civil or political right. The right to be free from assault is one phase of the civil right to life, liberty and the pursuit of happiness. So of the right to reputation and personal freedom.

It is now intended, however, to cover such civil rights as every person has in a public way-rights in and toward the community. Many of these will be found to be rights of imperfect obligation, in so far as the law does not undertake to redress infringements upon them.

It may be stated as a general rule that all such rights are held subject to the control of the sovereign power, and by that power may be curtailed or enlarged. Many are protected by the constitution and can be affected only by amendment of the constitution. Others are subject to modification from time to time by legislative enactment. For any alterations of rights by the sovereign power or by its representatives within their authority, it is clear that there can be no remedy.

§ 333. The right of suffrage.-Every qualified voter has the right to cast his vote and have it duly counted. He may be deprived of that right in a