The questions raised in the present case have in part been decided in the case of Goodrich v. Davis, (ante, 473,) in which an opinion has been pronounced. The remaining points, which are peculiar to the case, are, 1st, the rejection of the testimony of Edward R. Fiske, as to declarations of Simmons proposed to be offered from his reply to the following question propounded to Fiske, viz.: “ If, at or about the time Simmons printed the article or set it up, he had heard him say, or express ill will towards the plaintiff, and if so what he said?” This evidence was-excluded, as we think, correctly, and for various reasons.
*491The inquiry was as to what Simmons said at or about the time of the publication of the article. Now clearly the declarations of Simmons on this subject, at a period subsequent to the publication of the libel, were not properly admissible. If such evidence be admissible at all, it must be confined to declarations at the time, and so connected as to make them admissible as a part of the act. To make them such, they must have been made at the time, and certainly not at a period subsequent to the time, of printing the article.
The evidence of Simmons’s declarations in the matter was immaterial evidence. It could have no proper effect with the jury, in establishing any fact that would constitute a defence to the action.
It may be further added, that if this evidence was erroneously rejected, it would hardly require us to set aside the verdict and grant a new trial, inasmuch as the fact proposed to be inferred from the declarations of Simmons, viz., his actual ill will to the plaintiff, was fully established by much more direct testimony, admitted without objection. I refer to the testimony of E. B. Briggs, who testified that he knew Simmons then entertained ill will against the plaintiff. There being no reason to suppose that this last witness was not fully credited by the jury as to his statement upon this point, it would seem that the defendant had the full benefit resulting from establishing ill will on the part of Simmons toward the plaintiff. But however this may be, the court, for the reasons already stated, are of opinion that the testimony was properly excluded.
2d. The only remaining point respects the instructions given to the jury. We do not understand that they were objected to by the counsel for the defendant, except in a single particular. The general scope and tendency of the charge, upon all those points which might be urged in defence of a publisher or proprietor of a newspaper, when sued for a libel published and circulated by his agents or servants in his absence, were very liberal, and certainly sufficiently favorable to the defendant. The objection now taken is to that part of the charge in *492which it was stated, that if the defendant, after the publication of the libel by his agents, saw the piece and justified its publication, by another article published in a subsequent paper, he would be liable in like manner as though he had originally known of the publication ; and that, on this point, the jury would consider the character of the article published in the succeeding week. It is insisted, on the part of the defendant, that the libel complained of having been published June 27th, and this action instituted before the publication of the second article, the liability of the defendant must be fixed by the facts existing at that time, and that the subsequent publication of July 4th, being made after the date of the writ, can have no effect to charge the defendant in the present action. This position, we think, is untenable. In the ordinary case of a defendant, who was personally the publisher of the article alleged to be libellous, his subsequent conduct, arising either from his silent acquiescence in a construction generally and publicly given to the article, or his open avowal of his meaning and purpose in publishing it, might be resorted to as furnishing evidence of the true character and meaning of the article alleged to be libellous. But this species of evidence is peculiarly pertinent, and is of more moment, where the defendant is an absent proprietor of a public newspaper, and the article alleged to be libellous was printed by his agents or servants during his absence. If he could avail himself of a defence founded upon the fact that the publication was made contrary to his intent, and against his orders, or through some fraudulent act of another, he should avail himself of the earliest practicable opportunity to disavow the publication, and to disown it and repudiate it, in plain and direct terms, such as will, as far as possible, correct the error, and repair the wrong unintentionally inflicted through the columns of a newspaper, of which he is the proprietor. If, on the contrary, he subsequently publishes an article in reference to such previous article, giving it his sanction, or omitting to repudiate it and retract the charge contained in it, such subsequent article may properly be introduced as indicative of the true position *493of the proprietor of the paper, as to the previous article. It is true that the question of libel or no libel relates to the first publication ; but that question may be materially affected by subsequent acts or declarations of the publisher. The jury might therefore well be directed to consider the fact of such subsequent article being published, and from it might be authorized to draw inferences as to the meaning of the previous article, and whether it was published with or without the approval of the proprietor of the paper. The instructions upon this point were correct. All the objections taken by the defendant are therefore overruled.
Judgment on the verdict.