Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1871-10-19

the time of libelous publication may be shown
by anterior acts indicating hatred and ill-wlll
| to the plaintiff; but how the mere angry words
| of defendant, uttered or published afterwards,
can show such malice, unless they contain some
intrinsic or substantial admission of it, is not
easy of comprehension. We have, in Tennes-
see, but one direct authority upon this question.
In the case of Howell VS.. Cheatham, Coke R.
247-249, this court said that evidence of words
spoken after the commencement of the action is
not admissible. Words spoken at different
times previous to the institution of the suit,
though not declared on, may be given in evil
dence in order to ascertain the intent with which
the words declared on were spoken. But words
spoken afterwards may be the ground of another
action and therefore ought not to be received
in evidence. Cross. Cooke, 247; Meigs Dig.
l. 1777. If the first publication be OF doubtful
or equivocal import, and the second refer to and
explain it so as to remove all doubt or ambiguity
as to whether the words were intended to be
libelous or not, then, perhaps, the second would
be admissible. Witcher VS.. Richmond, Hum,
475 But if the words of the first publication be
unequivocally libelous, we are unable to
see upon what principle subsequent
publication can be addueed in evidence for any
purpose. In the vast number of conflicting au-
thorities upon this subject, the rulings seem ar
bitrary and are in the main given without rea-
son. And as the rulings opposed to our Ten
nessee doctrine are so barren of all reason, we
are fain to refer them to the earlier stages of
English jurisprudence when prosecutions for
Scdnddttn1 nIGgnGtunI were common and where
honor and patronage were wont to "shove by
justice" and British judges, even less the min
they now are, thanthe supple instruments of a
powerful peerage-1 Vents. go; Bullu Nivi,
p. 4-3 Shars. B. G.. Comm. 124. sa a. .....r. ..r.
To illustrate briefly the conflicting views
of the courts upon this subject it is only
necessary to stats that in some cases tie admis-
cfC N,o-x knnVl
tied to those which were not in themselves ac-
tionable-Mead VS.. Davbigny Peake loi. l25;
Bodwell VS.. Swan. Peck, 876; Defries VS.. Da-
Wis, 7 G. & P 112; or for which damages have
been acknowledgements VS.. Black, l NJ,
and Rob. All. In other cases it has been re-
stricted to words or writing relating to those
alleged in the eclaration.-Finnesty vs.. Tip
pen. Camp. 72; Delegal VS.. Highley G. &
P. Al; Barwell VS.. Adkins, l NJ. & g., 807
Ahem VS.. McGuire, ] Armstr., and Macanter,
80; Bedwell VS.. Swan, 8 Pick, 376 In others
the admissibility of subsequent words has been
limited to cases where the intention was equivO-
cal or the words ambiguous.-Stuart VS. Lowell,
StIrk L SO; Pearce VS. Ormsby, / NJ & Rob,
455. While in the case of Fisher VS. Patterson,
14th Ohio 49, it was held that distinct or sepa-
rate libes not declared on, cannot be introduced
in evidence and relied on by either plaintiff or
defendant to show malice or to aggravate
or mitigate damages And so says an
other authority if the words declared
on are not ambiguous. or the libelouS intention
be not equivocal evidence of subsequent words
of the same import have been refused,-2 Sund.
Pl. & Ev., 95l. Libels published in the same
paper six years before the publication of the IL
bel complained of, and under the same editor
ship, were properly received on the part of the
plaintiff in evidence, the judge having directed
the jury not to take the prior publication into
consideration in estimating damages, but only
for the purpose of ascertaining the animus of
the defendant-2 Saund., 952, Barrett VS. Long,
8 lr. Law R., 331 1t is the prevailing doc
trine, says Hiliard, though the authorities are
conflicting, confused and by no means recon
cileable, that evidence of defendants subse-
quently repeating the SANDER or libel is inad
missible; but such evidence or evidence of pre-
vious words where the defendants intention is
at all equivocal is clearly admissible to show
malice.-1 Hill. Torts, 311. Upon this distinc-
tion, it is said with great good sense, that the
purpose of the evidence, as stated, seems rather
verbal than practical, inasmuch as the amount
of damages in this action must always material
ly depend upon the motives of the defendant =
Vid. 81, N. H. Rep, 458. In FINALLY VS. Tip
pin, l. Campb., r. which was an action for a
libel published in a periodical, Mansfield, c.
j., refused to admit in evidence subsequent
numbers of the work unless they expressly re-
ferred to the libel for which the action was
brought, for the subsequent publication, he
said, might contain the most scandalous matter,
while the former libel may have contained al
would be that the jury would give damages
for the second libel in an action for
the frst.-3 Phil Ev., 467 In Vincent
VS.. Dixon, 5 Ind. r., 76 it is said
that the plaintiff can not be permitted
to prove other sanderous words bes not set forth
in the complanant's declaration in aggrayatiOn Of
damages unless the statute of limitations has already
run against the words which proposed to be prov
ed Hill R., 5lS. And it is said that the ground
for admitting evidence of other bes is to show the in
tention when it is equivoca and NOT FOR TIE PURPOSE
OF ENHANCING DAMAGES. l. I'd Peterborough rejected
evidence of this nature in case where there was no
art We. Lowell, N. ?. c. g. In Finnesty vs. Tipton,
already cited Mansfield. c. j., said you might as well
another:--2 Canpb.. Y. In Thomas VS.. Crosswell.
John. 21. Spencer, j., intimated his opinion that
subsequent publications were not admissible in evil
dence, even to snow the quo dniWO.-2 Stark on SLAM
der 3d. No evidence be given, says SedRwick, Of
words spoken after the beginning Of the ton Sedg
Lowndes, 5 Hill, 5lS Keenholts VS.. Becker, DEMO-
46. And in every criminal prosecution for libel it
is held that anterior blicatOns may be heard with
view to establish malice in fact, but that posteriOr
publications not.-3 Wharf. Am. Cr. Law. 22595;
Thomas vs.. CrOsswe Johns. R.. go; U. S. Gran
5467 Bodwell vs.. Swan, Pick 376; Watson vs. Moore
Cash. 133; Baldwin vs., Soule Gray, 321. And the
plaintiff cannot give IN evidence other subsequent de-
cation is not equivocaL-1 Tidd Pr, 652 Stark. n.
P. SO; Moore, 467; Bing.. 4O3.
In view, therefore, of the great conflict and confu-
OF the law, feel of safety in adherng to
own rulings OpOn this subject: that plaintiff in an
action for libel cannot adduce In evidence for any
pose publication of the defendant made subsequent
that sued on unless the latter be explanation
sion of the malicious intent in the frs publication
We think that in this ruling of fathers lies the
sense and reason of the law. ..-
Reverse the judgment and remand the cause Tor a /
new trial. SNEED, Judge.
true copy.