This was an action on the case for slander. The words laid in the declaration amounted to a charge of larceny. Plea, not guilty. The evidence tended to prove the speaking of the words as charged; and it did not appear that they were spoken in the heat of passion, or in the way of privileged or confidential communications. The court refused an instruction asked by the plaintiff, in these words: “ If the jury believe, from the evidence, that the defendant spoke and published the words charged in the declaration, the law presumes that the words were spoken maliciously, with a view to injure and defame the plaintiff; and this presumption of malice is not rebutted or removed, by the evidence given by the defendant in this case.” At the request of the defendant, "the court gave, among other instructions, the following: “ If the defendant charged the plaintiff with a felony, the law presumes malice, but this presumption of malice is not conclusive, but may be rebutted by the defendant; and if, from the whole evidence, the jury shall believe that there was no malice in fact, they should find for the defendant, notwithstanding the legal presumption of malice.” The verdict and judgment were for the defendant.
Malice is the gist of the action of slander. But the term malice has a twofold signification. There is malice in law, as well as malice in fact. In the former and legal sense, it signifies a wrongful act, intentionally done, without any justification or excuse. In the latter and popular sense, it means ill-will towards a particular person; in other words, an actual intention to injure or defame him. This distinction runs through the elementary books, and the reports of adjudged cases. Starkie, in his valuable Treatise on Slander, at page 210, holds this language : “ It seems to be clear, as well upon legal principles as *275on those of morality and policy, that where the wilful act of publishing defamatory matter derives no excuse or qualification from collateral circumstances, none can arise from a consideration that the author of the mischief was not actuated by any deliberate and malicious intention to injure, beyond that which is necessarily to be inferred from the very act itself. For if a man wilfully does an act likely to occasion mischief to another, and to subject him to disgrace, obloquy, and temporal damage, he must, in point of law as well as in morals, be presumed to have contemplated and intended the evil consequences which were likely to ensue.” And again, on p. 219 : “ It follows that every one who ventures to propagate an unfounded calumny, to the injury of the character of another, does it at his peril, and that, unless he can show some lawful excuse for publishing, that is, some cause for publishing under the particular circumstances which the law recognizes as affording a sufficient excuse, the total absence of an actual intention will not avail as a justification.” In Bromage v. Prosser, 4 B. & C. 247, it was said by Bayley, J., in delivering the judgment of the court: “ If I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not; and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces ? And I apprehend the law recognizes the distinction between these two descriptions of malice, malice in fact and malice in law, in actions of slander. In an ordinary action for words, it is sufficient to charge that the defendant spoke them falsely ; it is not necessary to state that they were spoken maliciously. But in actions for such slander as is primé facie excusable, on account of the cause of speaking or writing it, as in the case of servants’ characters, confidential advice, or communications to persons who ask it, or have a right to expect it, malice in fact must be proved by the plaintiff. But in an ordinary action for libel, or for words, though evidence of malice may be given to increase the damages, it never is considered as essential, nor is there any instance of a verdict for the defendant on the ground *276of the want of malice.” See also Haire v. Wilson, 9 B. &. C. 643, and Bodwell v. Osgood, 3 Pick. 380.
There is a class of cases, where the occasion of the speaking of the words may, without regard to their truth or falsity, afford an excuse or justification to the party; such, for instance, as the statements of a master respecting the character of a servant; communications addressed to the appointing power, relative to the conduct of a public officer, or concerning the qualifications of an applicant for office; expressions used in the course of a judicial proceeding, by a judge, attorney, witness, juror, or party; and communications made to others in confidence, or in the way of admonition or advice. In such cases, an action cannot be sustained without proof of actual malice. If the party acted from honest motives and for justifiable purposes, the law, from reasons of public policy, excuses him. But he is not permitted, under the pretence of discharging a duty to himself or society, to inflict an injury to the reputation of another. If he makes use of the occasion for the purpose of traducing another, the occasion will not protect him, and he will be answerable for the consequences.
But the reverse is the rule in the case of actionable words, where no excuse or justification can arise from the particular circumstances under which they were uttered. The plaintiff is not bound to prove that the charge was maliciously made; nor can the defendant relieve himself from liability by showing the absence of express malice. He makes the publication at his peril, and, if untrue, he is-responsible for all the consequences naturally flowing from the act. The real motive by which he was actuated is unimportant, except upon the question of damages. The injury to the plaintiff may be as serious where the charge is made without an actual intention to defame, as if it proceeds from the most malignant motives. It would be a great reproach to the law, if a party who had causelessly ruined the reputation of another should be exempted from civil responsibility, merely because he did not design to produce such a result.
In this case, the words were actionable in themselves, and they were not published under circumstances that afforded any excuse or justification to the defendant. He was therefore liable *277for the consequences, unless the plaintiff had committed the crime of larceny. And he did not by his pleadings offer to prove the truth of the charge. The existence of malice in fact was not necessary to maintain the action. The law raised the presumption of malice, and that presumption was conclusive. The court erred in refusing the instruction demanded by the plaintiff, and in giving the one asked by the defendant. The judgment must be reversed, but the cause need not be remanded. The death of the plaintiff, since the judgment was entered, will prevent a further prosecution of the suit.- The cause of action died with the person. The administrator, however, had the right to prosecute this writ of error, to relieve the estate from the payment of an unjust judgment. The judgment is reversed.
Judgment reversed.