However counsel may look upon it, this court cannot but regard the question presented on this rehearing,» considered as a question-of practice merely, as one of much gravity and importance; and it is certainly a great pity that the learned counsel for the defendant, intending, as they say, to show the absence of malicious motive or bad intent on the part of the defendant, did not so frame their questions and make their offer of proof in the court below as to make that purpose clearly and unequivocally plain and intelligible to the court and to counsel opposed. Such course, which was very easy, would have saved counsel on both sides much time and trouble, and the members of this court much patient study and anxiety over the question. As to what the practice is and should be in such cases our views are as stated in the opinion granting the motion for a rehearing. They are the same as expressed by BRONSON, J., in delivering the opinion of the court in Daniels v. Patterson, 3 N. Y., 51, where he says: “ Before a party excepts on account of the rejection of evidence, he should make the offer in such plain and unequivocal terms as to leave no room for debate about what was intended. If he fail to do so, and leave the offer fairly open to two constructions, he has no right to insist, in a court of review, upon that construction which is most favorable to himself, unless it appear that it was so understood by the court which rejected the evidence. And if the meaning of the offer depends on argument or inference, he must have much the best of the argument before a court of review should reverse the judgment.”
In view of this well settled rule respecting the manner of introducing proof and conducting the examination of witnesses, which we think most important to be adhered to and enforced, we must say that the arguments of counsel for the defendant, able and well considered as they confessedly are, fail to convince us, and we think must fail to satisfy any court, *361that there was error, or at least reviewable error, in the rulings of the circuit court in sustaining the objections taken to the questions put to the defendant as a witness, and in rejecting the offer of evidence which was made. In order to the just appreciation and proper solution of this question, it is necessary for us, as near as may be, to suppose ourselves in the place of the court below, and deciding the question of admissibility as it presented itself to the mind of that court, and as thar court had the right to understand, and must be reasonably presumed to have understood the proposition before it, and the object of counsel' in calling out the testimony. "We must do this, and give a construction to the questions put to the witness and the offer of proof made, as the same were, or must, or might reasonably have been understood by the court below-, without the aid of the elaborate arguments- and re-arguments and thorough investigations which have taken place in this court. We can only learn in what light the court below viewed the proposition, and what it considered, and was justified in considering, to be the purpose of counsel, by examining the interrogatories, the objections which were taken to them, and the rulings of the court upon those objections. The objections taken and reasons assigned show very clearly how counsel for the plaintiff understood the questions put, and the object in putting them; for the principal ground of objection was, and it was several times repeated, that the questions called for an answer, giving a construction to the article against that given to it by the court, and contrary to the legal import and construction of the Words used in it. The objections so taken, and for the reasons given by counsel, were sustained by the court, which raises a very strong presumption that the court must have held the same opinion respecting the purpose and effect of the questions asked, and the offer of proof made. But it is the questions themselves, which, as it seems to us after the most mature deliberation, furnish the clearest evidence of how the court must have understood the matter, and how and why it was fully *362justified in such understanding. The form and words of the questions are such as to produce the impression, which, wrestle and strive against it as we may, can not be shaken off, that it was a construction of the writing which was sought, and not mere evidence of the want of malicious intent or bad motive in the writer at the time it was written. The frequent and almost constant recurrence in the questions, of the words, “in that article,” or “in the article,” as in the first question asked, and several which followed it, point clearly and definitely to the construction of the.article, and to nothing else with ariy certainty and precision, or with so much certainty and precision. The intention having been, as the learned counsel assert, to show the intent ■ of the defendant, not as exhibited in or by the article, but as it existed outside of the article and in the mind of defendant at the time of writing it, it seems certainly very strange that these words should have found their way so often and with such' persistency,, into the questions which were asked. Whatever learned counsel may have intended, the presence of these words can not be disconnected, in the mind of the reader or hearer, from the idea that it was the witness’s construction of the article that was sought after and intended. The idea forces itself upon the mind with so much strength, after reading the questions, that it is difficult to conceive how the court could have otherwise understood them ; and knowing, as we now do, that something else was intended by counsel, it becomes a marvel almost that some different form of expression was not adopted. If, in place of the words above quoted, the words “at that time,” or “ at the time,” had been used, they would have had some tendency to enlighten the court as to the meaning and purpose of counsel putting the questions. They would have had some tendency to show that the object was to bring out from the witness something separate from and independent of the legal intent or construction which the court had put upon the article.
The legal intent or judicial construction of the article was *363not a matter to be disproved or avoided by the oath of the defendant, and for that purpose his testimony was wholly incompetent and inadmissible. It was only the defendant’s individual intent, or intent as the operation of his mind, hidden from others and known only to himself, to which he was competent to testify. It was this intent which we said in a former opinion was, on a fair construction of the article, open to him to disprove. "We • said that the article, however it might carry that impression to the minds of others or be so construed by the courts,'yet furnished no such clear and indisputable evidence on its face of this individual or inward intent and purpose to malign or to charge the plaintiff with having received a bribe, as to exclude direct evidence to the contrary, or that such inward intent did not exist. Of course, cases have arisen and may arise again, where the language of the publication is so clear and positive to show the inward intent and malicious purpose and motive, that the rejection of such evidence could not be looked upon as error. But we said and still say of this case, notwithstanding the outward manifestations, that exculpatory evidence of the kind was admissible when offered to rebut the presumption of malice in fact raised by the publication, and to meet and negative any claim which might be made for vindictive or punitory damages on that ground. Now, with this understanding of the proposition on the part of this court and the same on the part of the learned counsel for the defendant at the trial, it is certainly somewhat remarkable that no question should have been put to the witness directly calling for his intent as it existed in his mind independently of the article and apart from what he there wrote and published, or from what there appeared or might be inferred to have been his intent at the time of publication. It would have been very easy to put the questions in that form, which would at once have made the object of counsel apparent to the mind of the court; but no such questions were put, and there is nothing in the record to show that the court below understood or could *364have 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 *365publication/ 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.
*366It may perhaps be proper here, in view of tbe arguments of counsel, to mate some observations upon tbe distinction existing or wbicb may exist between intent in tbe publication and malicious motive or bad intent out of it. Tbe writer or publisher may bave intended to say or to charge just what tbe 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 strangei’, 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 error, it would have followed as matter of course that the *367motion for a rehearing should be denied. It was not at that time considered as fatal error, nor does the court so consider it now. We think that that part of the request which stated that if the jury found no express malice, then the law from the publication impliedmalice sufficient to sustain this action, at least for nominal damages,” was in some measure calculated to con.fuse 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 sustained 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 partic-' ularly 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*368quests to charge, to work error in their refusal, must be themselves without fault. The request in question was, as we have seen, not wit'hout 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 judgment 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.