he wrote or spoke them (y), or that they were uttered with the intention of injuring the plaintiff (2), or that the plaintiff and defendant were rivals or had previously quarrelled (a), or that the defendant was actuated by personal resentment (b) or any other wrong motive (c).

Sometimes, also, malice may be proved by the unnecessarily extensive publication of the words (d), or by their unnecessary violence (e). "No doubt a customer may complain to a tradesman with whom he deals of what he deems irregular or dishonest; but if he does so outside the door of the tradesman's shop-so as to be heard by the public-or even inside the shop, he speaks slanderous words unnecessarily in the presence of third parties, or to third parties, and uses language which is extreme and beyond the occasion; all this, with

(y) Gerard v. Dickenson (1590), 4 Rep. 18; Cro. Eliz. 197; Smith v. Hodgeskins (1633), Cro. Car. 276.

(z) Peacock v. Reynal (1612), 2 B. & G. 151.

(a) Hooper v. Truscott (1836), 2 Bing. N. C. 457; 2 Scott,

672.

(b) Gilpin v. Fowler (1854), 9 Ex. 615; 23 L. J. Ex. 152; 18 Jur. 293; Dickson v. Earl of Wilton (1859), 1 F. & F. 419.

(c) Rogers v. Clifton (1803), 3 B. & P. 587; Jackson v. Hopperton (1864), 16 C. B. N. S. 829; 12 W. R. 913; 10 L. T. 529.

(d) Gilpin v. Fowler (1854), 9 Ex. 615; 23 L. J. Ex.

152.

(e) Per Parke, B., in Wright v. Woodgate (1835), 2 C. M. & R. at p. 578; Fryer v. Kinnersley (1863), 15 C. B. N. S. 422; 33 L. J. C. P. 96.

the tone and manner in which the words were spoken, will be evidence for the jury to consider whether, in law, the words were spoken maliciously and without excuse "(f). “It may be that the language used in a libel, though under other circumstances justifiable, may be so much too violent for the occasion and circumstances to which it is applied as to form strong evidence of malice upon the issue of whether the communication is covered by the privilege, and that an inference of actual malice may be drawn from its use"(g). All evidence showing the state of defendant's mind at the time he uttered the words complained of is admissible in order to show malice, and upon this principle proof is allowed that the defendant has previously () or subsequently (i) published other libels or slanders of the plaintiff.

But it is no evidence of malice to prove that the defendant, under a sense of duty, volunteered to write or speak the words complained of (j), or

(f) Per Lush, J., in Oddy v. Lord George Paulet (1865), 4 F. & F. at p. 1010.

(g) Per Cockburn, C. J., in Still v. Maule (1869), L. R. 4 Ex. at pp. 235, 236.

(h) Stuart v. Lovell (1817), 2 Stark. 93; Barrett v. Long (1851), 3 H. L. C. 395.

(i) Mead v. Daubigny (1792), Peake, 168; Pearson v. Lemaitre (1843), 5 M. & Gr. 700; 12 L. J. Q. B. 253; 7 Jur. 748; 6 Scott, N. R. 607.

(j) Gardner v. Slade et ux (1849), 13 Q. B. 798; 18 L. J. Q. B. 336.

published them by mistake (k), or that the words used were not in fact true (7).

And though it is no doubt some evidence, and generally speaking strong evidence, of malice, it is not necessarily conclusive proof of malice to show that the defendant did not believe his statement to be true, for as Kelly, C. B., observed in Botterill v. Whytehead (m), "he may believe it to be untrue, and yet may be perfectly justified in publishing it to persons with whom he is in communication, and with whom it may be his duty to communicate freely on the subject of the information he has received." So, too, "it is not enough to show a want of reasoning power or stupidity, for those things of themselves do not constitute malice. A man may be wanting in reasoning power, or he may be very stupid, still he may be acting bonâ fide, honestly intending to discharge his duty. The question is not whether the defendant has done that which other men, as men of the world, would not have done, or whether the defendant acted in the belief that the statements he made were true, but whether he acted as he did from a desire to discharge his duty" (n).

(k) Scarll v. Dixon (1864), 4 F. & F. 250; Brett v. Watson (1872), 20 W. R. 723; Tompson v. Dashwood (1883), 11 Q. B. D. 43; 52 L. J. Q. B. 425; 48 L. T. 943.

(1) Caulfield v. Whitworth (1868), 16 W. R. 936; 18 L. T.

537.

(m) (1879), 41 L. T. at p. 590.

(n) Per Cotton, L. J., in Clark v. Molyneux (1877), 3 Q. B. D. at p. 249, cited with approval in Murdoch v. Funduklian (1885), 2 Times L. R. at p. 217.

ART. 37.-Defence of apology under sect. 2 of Lord Campbell's Act, 6 & 7 Vict. c. 96. In an action for libel contained in any public newspaper or other periodical publication, it is a good defence to prove that such libel was inserted in such newspaper or other periodical publication without actual malice, and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, the defendant inserted in such newspaper or other periodical publication a full apology for the said libel; or if the newspaper or periodical publication in which the said libel appeared should be ordinarily published at intervals exceeding one week, that he had offered to publish the said apology in any newspaper or periodical publication to be selected by the plaintiff in such action (o).

There must, however, be a payment of money into Court by way of amends at the time the plea is filed (8 & 9 Vict. c. 75, s. 2); and therefore, having regard to Order XXII. rule 1, no other defence denying liability can be pleaded together with such plea.

NOTE. It should be noticed that this defence is only available in an action for a libel contained in any public newspaper or other periodical publication, words which would apparently cover almost every kind of journalistic publication. It is not enough for the defendant to plead that he inserted the apology "at the earliest opportunity after" the commencement of the action, if he had

(o) 6 & 7 Vict. c. 96 (Lord Campbell's Act), s. 2.

an opportunity before action (p). Any defendant relying upon this defence must offer some evidence to prove positively that there was no gross negligence on his part (q).

The apology should be full and free, and published in a conspicuous part of the paper. It should be given at least as prominent a position as the words complained of.

ART. 38.-Accord and satisfaction.

Accord and satisfaction is an agreement that the plaintiff will forego his right of action on the execution of a valuable consideration. Such agreement may be made by the defendant himself (r), or by one jointly liable with him (s), or by a third party (t), and is a good defence to an action for libel or slander.

NOTE. Thus the defendant will escape liability by proving that the plaintiff agreed to accept from him certain apologies in full discharge of

(p) Per Keating, J., in Ravenhill v. Upcott (1869), 33 J. P.

299.

(9) Per Wills, J., in Peters and another v. Edwards and another (1887), 3 Times L. R. 423.

(r) Boosey v. Wood (1865), 34 L. J. Ex. 65; 3 H. & C. 484; Marks v. Conservative Newspaper Co. (1886), 3 Times L. R. 244.

(s) Thurman v. Wild and another (1840), 11 A. & E. 453; Bainbridge v. Lax and others (1846), 9 Q. B. 819.

(t) Jones and another v. Broadhurst (1850), 9 C. B. 173.

F.

L