Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-10-21
THE, sUPREME COURT.
op.nIon % one Case i sa.ss q Is. s al m
dexs, Clark d Co.

ducelon as evidence by the plalntln OF the
article copied by the defendants from the
Cincinnati Eaqutrer. It viii be remem-
bered that this article was published on the
18th of Jannary 1871, about four, months
after this action was begun, and that it was
submitted to the jury in evidence over the
objeetiens the defendants. There is per
haps no snhject treated in the books upon
which there has been greater diversity of
judicial ruling that the question whether a
plaintiff ian action Of libel can, for the
purpose of showing the quo amino and in
tent of publication, introduce others made
by the defendant after the one complained
of and after the commencement of his ae-
tion.3 The law is commended by my
Lord Coke as the perfection of rea-
son. 1.-THE law is unknown to him, 2
said he, "who knoweth rot the reasons
thereof" It would seem to be rule with
out reason that the exrjress malice of a
publication made to-day may be established
by another made twelve months after to-
day. And yet we Find many respectable
authorities occuPar g both sides of this ques-
ton. 1t is aa established principle that
either party IN yGn action of libel may intro
duce evidence to show the existence or
non-existenc of malice at the time Of the
publication We can easily see how malice
In fact at the time of libellous publication
may be shown by anterior acts indicating
hatref. and i'll win to the plaintiff-but how
the y mere angry words of a defendant,
utt ered or published afterwards, can show
s. Ich malice, unless they contain some in
trinsie and substantial admission of it, is
not easy of comprehension. We have, in
Tennessee, but one direct authority upon
this question. In the case Of Howell vs..
Cheatham, Cooke X. 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
evidence in order to ascertain the intent
with which the words declared on were
spoken. But words spoken afterwards
NAV be the ground of another action, and
therefore ought not to be received III eyl-
deDoe.. Coop. Cooke, PAP Meigs Dig.
S1,TT7. ,;Ifthe first publication be of doubt
full or equivocal mport--and the second re-
fers to and explains it, so as to remove all
doubt or ambiguity as to whether the words
were intended to be hbelous or not-thus
perhaps the second would be admissible.
Witcher VS.. Richmond Hump. 475. But
If the words Of the first publication be I'M
equivocally fbellous, we are unable to see
upon what principle a subsequent publica-
ton can be adduced in evidence for any
purpose. In'the vast number of conflicting
authorities upon this subject-the rulings
seem arbitrary and are in the main given
without reason. And as the rulings opposed
to our Tennessee doctrine are so barren OF
all reason, we are fain TO refer them to the
earlier stages of English jurisprudence,
when prosecution for scdlddliIun mdgHGtt-
UNI were commOn-and when power and
patronage were wont to ''shoye by Justice
and British Judges were less the minis
tiers of justice to the lofty and the lowly as
they now are, than the supple instruments
of a powerful peerage. Ventr. 60
Bulln. Nisi p. 4-3 Shan. 81. Comm. 124
To illustrate briefly the conflicting views OF
the Courts upon this subject it is only nee
essary to state that in some cases the admis-
sibility of other words or writings has been
limited to those which were not ill them.
selves actionable. Mead VS.. Daubigny
Peaks Cos. 125-Bodwell VS.. Swan, 3 Pick.
376. Defries VS.. Davis, Z G. 8 p. 112; or
for which damages have been recovered
SUMMONS VS.. Black, NJ. and Rob. AZ l.
In other cases it has been restricted to
| words or writings relating to those alleged
in the declaration. Finnerty VS.. Tippee. .
Campo. -, Delegalvs VS.. Highley, s. c. & P,
| 444. Burwell VS.. Adkins, NJ. & g. S07.
Akern VS.. Mcclure, l Armstr. and Macartn,
80. BodWell vs.. Swan, 9 Pick. $40. In Others
the admissibility of subsequent. words has
been limited to cases where the intention was
e4uiyoeal or the words ambiguous. Stuart
VS.. Lowell, Stark, X. 90. Pearce VS.. Orns-
| by, NJ. & Robb, 455. While in the case
of Fisher VS.. Patterson 14th Ohio il was
held that distinct or separate libels not de-
clared on, cannot be introduced in evidence
and relied on by either plaintiff or defend
| ant TO show malice, or to aggravate or miti-
| gate damages. And so says another author
! ity if the words declared ON are not ambigu-
GUS, or the lbellous intention be not equi-
vocal, evidence Of subsequent words of the
same import has been refused. 2 Saund
| Pl. and Ev: 951. Libels published in the
same paper six years before the publication
| of the libel complained of, and under the
same editorship 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 il
estimating damages-but only for the pur.
pose of ascertaining the animus of the de,
| PENDANT. 2 Saund. 952. Barrett VS.. Long
8 Is. Law r. 331. 1t is the prevailing doc
trine says billiard, though the authorities
are conflicting, confused, and by nc
means reconcilable, that evidence of defend
! ants subsequently, repeating the SANDER OF
! libel is inadmissble; but such evidence Oh
evidence of previous words when the de
/ =, g NJ Ill
| clearly admissible to show malice. l Hi
Torts, 81. Upon this distinction it is sale
with great good sense, that the purpose O
| such evidence, as stated, seems rather yer
bal than practical, inasInuch as the amount
of damages in this action must always ma.
terially depend upon the motions Of the de
PENDANT. Vid. 81, n. II. Rep, 45S. Ii
Finnerty VS.. Tippin, 2 Camph. Y, which
was an action for libel published in a per
iodical, Mansfield, c. j., refused to admi
evidence subsequent numbers of the worl
unless they expressly referred to the libe
for which the action was brought; for tn,
subsequent publication, he said, might con
tain the most scandalous matter, while tn,
former libel may have contained almos
nothing-and the necessary consequence
would be that the jury would give damage!
for the second libel in an action 70
the first Phil. Ev, 467. In Vincent vs.
Dixon, S. Ind. r. 70, it is said that th,
plaintiff cannot be permitted to prove othe
slanderous words or libels not set forth il
the compliments declaration in aggravatioI
of damages, unless the statute of limitation
has already run against the words which
are proposed to be proved. Hill r. SIS
And it is said that as to the ground for ad
hitting evidence of other libels is to show
the intention-when it is equivocal, and no
for the purpose of enhancing damages
Lord Peterborough rejected evidence of thi
nature in a case where there was no doub
respecting the intention of the defendant
Stuart VS. Lowell, 2 n. p. c., SO. In Film
nerty VS. Tippen, already cited, Mansfield, c
j., said you might as well give in eyidenc
on highway robbery on the trial of another
2 Cambp. Y. In Thomas VS. Croswel,
Johns. 271, Spencer, j., intimated his Opin
ion that subsequent publications were no
admissible in evidence even to show the q1t
dnimo. 2 Stark. on SANDER, SO. No evi
dence can be given, says Sedwick, of word
spoken after the beginning of the action
Sedg. NJ. D., 104; Goslin VS.. Cory, Mann
and CIR; Root VS.. Lowndes, Hill, 51S
Keenholts vs.. Becker, 3 DEMO-, 346. An,
so in criminal prosecutions for libel, it
held that anterior publications may be hear
with a view to establish malice in fact, bu
that posterior publications are not
Wharf. Am. Or. Law, s 25q5, Thomas vs.