Wilson vs. Noonan.

have understood the matter in this light at all. The questions were to all appearance addressed to the intent of the defendant as exhibited in the published article, and so apparently aimed at proving by the oath of the defendant that publication not to be libelous which, in judgment of law, had been finally and conclusively pronounced so to be. The difference is between intent in the publication and intent out of it; and here lies all the difficulty respecting the course of examination which was pursued. As already observed, intent in the publication, or that injurious and defamatory character and quality which the law adjudges it to have, the insinuation or charge of being bribed there found or inferred, is not the subject of disproof by the oaths of witnesses; for if it were, and the testimony were believed, the jury might find as matter of fact that not to be a libel, which the court as matter of law had solemnly determined to be such. There is, therefore, this plain difference between what was intended in the publication, which, for the purpose of giving compensatory damages or requiring the defendant to make full pecuniary reparation for the injuries sustained by the plaintiff, is conclusively presumed against the defendant, and he is absolutely held to and bound by, and what was intended out of the publication, which, going to the question of mental design on his part, or of malicious purpose or bad motive in him, and so only to the question of damages to be inflicted by way of punishment, is in the nature of a repellable or inconclusive inference, and may be disproved by testimony, if properly offered or introduced for that purpose.

The nearest approach to what might be considered legitimate testimony is probably that contained in the offer. The offer was this: "We propose to show that, whatever the article may say, he, the defendant, did not intend to say that." Here again was a direct reference to the publication, and to what was there said; and the proposal was to show that the defendant "did not intend to say that." Say what? we ask; and the answer immediately comes up, say that which was said in the

Wilson vs. Noonan.

publication; and we are brought face to face with an offer to give verbal testimony of intent in the publication, which is a question of law for the court, and not of intent out of the publication and in the mind of the defendant, which means the same thing as motive, good or bad, malicious or otherwise, leading to the publication, and which is a question of fact for the jury.

The conclusion is therefore irresistible to our minds, and we are constrained so to hold, that there was no question put, or offer of proof made on the trial below, which raised any issue or involved any inquiry respecting the intent of the defendant aside from that which appeared in or was inferrable from the published article itself. We are satisfied that the question of disproving or proposing to disprove intent, as synonymous with malicious motive or set purpose to injure and to defame, was not brought to the attention and understanding of the court, but that the court, in sustaining the objections and excluding the testimony, had in view and was considering quite another question, with reference to which the testimony was wholly inadmissible.

But it may be said that the course of inquiry pursued, if suffered to go on, would have resulted in calling out the very evidence which this court now holds to be admissible. Incidentally and indirectly this might have been so, but still it does not cure the defects or obviate the difficulties now to be contended with. It does not show that the court below erred in its conclusions, or tend at all to relieve the case of the defendant from the operation of the rule of practice above laid down. The most that can be said in favor of the questions, or some of them, rejected by the court below, is not that they bordered on or touched the line separating competent from incompetent evidence, but only that they remotely tended in the direction of that line. They are not questions which might indifferently have been admitted or excluded, but those the allowance of which would have been a clear violation of well settled principle.

Wilson vs. Noonan.

It may perhaps be proper here, in view of the arguments of counsel, to make some observations upon the distinction existing or which may exist between intent in the publication and malicious motive or bad intent out of it. The writer or publisher may have intended to say or to charge just what the publication imports, and which is most defamatory and injurious as to the person of whom it is written or published, and yet there may have been an entire want of actual malice or bad intent or purpose in the writer or publisher. He may have written or published in the honest belief that what he said was strictly true. He may have done so of a total stranger, against whom he had and could have no feelings of ill will or malevolence whatever. He may have done so even of a friend or near relative, whose fall he most sincerely regretted, and in whose misfortunes he deeply sympathized. Intent in the publication, therefore, and intent out of it, by which we mean unjustifiable motive or bad purpose in the writer or publisher are, or may be, according to the various circumstances by which the cases are surrounded, entirely distinct and distinguishable things.

It remains now only to say a few words respecting the fifth instruction which was asked and refused. That instruction received but a qualified approbation in the former opinion, and it was only as incidental and subsidiary to what was then considered the other and the main ground of error, that it was remarked that it ought to have been given. It might perhaps have been given with safety; and if it had been given, it may be that the plaintiff would not have been heard to complain of it as error. But when we come to consider the refusal as the principal ground of error, or the sole one found in the record on which to reverse, we must say that we do not think it can or ought to have that effect. As observed in the former opin ion, the request was in some particulars faulty and imperfect; and if, at the time of granting the motion for a rehearing, it had been considered that the refusal to grant the request was fatal crror, it would have followed as matter of course that the

now.

Wilson vs. Noonan.

motion for a rehearing should be denied. It was not at that time considered as fatal error, nor does the court so consider it We think that that part of the request which stated that if the jury found no express malice, then the law from the publication implied "malice sufficient to sustain this action, at least for nominal damages," was in some measure calculated to confuse and mislead the jury. The only instruction which could under the circumstances have been correctly given to the jury, was, that the plaintiff was entitled to recover at least actual damages. The actual damages sustained by the plaintiff were, on the facts supposed, the minimum for which the jury would have been justified in returning a verdict for the plaintiff; and that part of the request to charge where nominal damages were spoken of as the smallest sum, was clearly inaccurate. And although the actual damages sus tained by the plaintiff were afterwards mentioned in the request as being within the province of the jury to give, yet it was done in such a way, without marking the distinction between actual and nominal damages, that we are by no means sure that it would have removed the erroneous impression which might have been conveyed to the minds of the jury by the incorrect statement of the rule previously made. Without explanation or some further instruction designed more particularly to guide them, the jury might have confounded the rules with respect to actual and nominal damages, and possibly have thought under the circumstances, that both signified the same thing. We know not what impression the jury might have received from the incorrect statement of the rule of damages first made in the request, or from the giving to them of the two inconsistent rules; and this is the fault which was alluded to in the first opinion filed in this case. It may not be looked upon perhaps as a very grave or serious imperfection, but yet is sufficient, we think, to relieve the refusal of the court from the imputation of error, when such refusal is urged as the sole ground of reversal. The rule is well understood, that re

Zimmerman and another vs. Fairbank.

quests to charge, to work error in their refusal, must be themselves without fault. The request in question was, as we have seen, not without fault, and we do not think it was error to refuse it for which the judgment can be reversed.

It follows from the views above expressed, that the judg ment appealed from must be affirmed.

By the Court.-Judgment affirmed.

A second motion for a rehearing, made by the appellant, was denied at the June term, 1874.

1. A witness, on cross examination, having testified that he had written certain letters, was not permitted to state their contents. In the absence of proof of any effort to procure the letters themselves, it seems, that there was no error in ruling out secondary evidence of the contents.

2. If such ruling was erroneous, the error was cured by the subsequent introduction of the letters in evidence.

3. One of the plaintiffs having testified, on cross examination, that at a certain time plaintiffs employed one S. as their attorney-at-law in the matter of the chattels which are the subject of this action, was asked by defendant why he employed such attorney at that time, the question being put for the purpose of showing that S. was employed to collect plaintiffs' claim for said chattels, not from the defendant, but from one X. Held, that as the question did not call for anything said or done by the plaintiffs, but only for a motive or mental process, it was properly ruled out.

4. The issue being, whether said chattels were delivered by plaintiffs to defendant or to X. (for sale on commission), the same witness was asked by defendant on cross examination, whether plaintiffs had at any time heard that X. had failed; but the question was ruled out. Held, that if the object was to discredit the witness by showing that