ON REHEARING.
Young, C. J.A rehearing was ordered in this case upon a number of assignments which were not considered in the foregoing opinion. The questions raised by them have now been fully presented.
The first, and it is a controlling question, relates to the admission in evidence, over defendant’s objection, of a certain affidavit made by the defendant, which is known in the record as “Exhibit E.” Inasmuch as we have reached the conclusion that the admission of this exhibit was prejudicial error, it will be necessary to set forth the circumstances of its execution and its general character, to the end that the reasons for our conclusion may clearly appear. In 1901 one Joseph Gunn, who was a party to an action in the district court of Richland county over which the plaintiff presides, filed an affidavit of prejudice against the plaintiff, pursuant to the provisions of section 5454a, Rev. Codes 1899, authorizing that procedure, and demanded .that the plaintiff arrange for the attendance of another judge to try his case. He was represented in the action by McCumber, Bogart & Forbes, a firm of attorneys of which P. J. McCumber was the leading member. On July 18, 1901, Gunn, through his attorney, P. J. McCumber, and upon the latter’s affidavit, caused an alternative writ of mandamus to issue out of this court to compel the plaintiff to comply with the statute above referred to and arrange for another judge. The plaintiff alleged that the affidavit of prejudice had not been made and filed in good *550faith, and also alleged that it, as well as a number of similar affidavits which had been filed in other cases, had been made solely at the instigation of P. J. McCumber, and purely from motives of personal and political hostility to the plaintiff, and for the purpose of injuring and discrediting him; that in fact he was not prejudiced or biased in any respect, and had always accorded to litigants represented by said' firm of McCumber, Bogart & Forbes all of their legal rights, and extended to them every courtesy possible in their cases. To contradict this and in support of his affidavit of prejudice, Gunn filed in evidence an affidavit of the defendant Jones, which is the affidavit in question. It is of considerable length, and its substance only need be stated. In it the defendant testified that he had been sheriff of Richland county for four years, and as such had ample opportunity to observe the plaintiff’s conduct and attitude in the trial of cases. From the knowledge thus acquired, as well as from personal conversation with the plaintiff, he testified to a personal and political hatred on the part of the plaintiff toward P. J. McCumber, so intense in its character that it was visited upon the other members of the firm of which said McCumber was a member, upon the political friends of said McCumber and upon those who> became clients of Iris firm. He further testified that he had been a party to a large number of actions; that when he was represented by the firm of which said McCumber was a member he invariably filed affidavits of prejudice; that when he was represented by other attorneys he filed no affidavits. The affidavit does not charge the plaintiff with personal or official dishonesty or corruption either directly or indirectly, by imputation or otherwise, and no such issue was involved in the proceedings before this court. The entire scope of the testimony given by the defendant in this affidavit is to charge the plaintiff with an intense prejudice against the said P. J. McCumber, and this it does in strong language. This affidavit was offered by the plaintiff and received by the court expressly “for the purpose of showing the state of feeling of the defendant toward the plaintiff, * * *” and “as bearing upon the question of the malice of the defendant in publishing the libel.” It was objected to by counsel for defendant upon a number of grounds, and particularly upon the ground that it “has no tendency to show any personal malice, or any malice that would render the matter published actionable, * * *” and “as not tending to show any such malice as would *551make a defendant liable for publishing a privileged communication. * * *” The existence of malice, either as a legal fiction or in fact, is essential to a recovery in every action for defamation. “Malice has always been divided into two kinds — implied malice, or malice in law, and express malice, or malice in fact. The first is shown by mere proof of the unauthorized use of the defamatory words charged. The second may be shown by the acts or conduct of the defendant immediately accompanying the utterance of the words, or by the utterance at other times of other and similar defamatory words having reference to the subject-matter of the words charged.” Gambrill v. Schooley (Md.) 52 Atl. 500, 508, 63 L. R. A. 427. When the defamatory charge is made upon an occasion which is not privileged, malice in law, or legal malice, is conclusively presumed for the purpose of sustaining the action and a recovery of actual damages, but no further. Wrege v. Jones, 13 N. D. 267, 100 N. W. 705. When it is made upon an occasion which the law deems privileged, legal malice is not thus inferred. Bearce v. Bass, 88 Me. 521, 34 Atl. 411, 51 Am. St. Rep. 446. On the contrary, the law presumes that it is made in good faith and without malice, and in such cases proof of actual malice is essential to sustain the action even for compensatory damages. Evidence of malice is always admissible where punitive damages are claimed. The trial court held that the Wendall affidavit was published on a privileged occasion. Evidence of actual malice was therefore admissible for the twofold purpose — (1) to sustain the action, and (2) upon the question of punitory damages. The sole question is whether the Jones affidavit was admissible for that purpose. In our opinion, it was not, and for two wholly independent reasons. The general rule in actions for slander or libel is that, for the purpose of showing malice, “any action or language of the defendant (before suit brought), tending to prove malice on his part in respect to the particular publication complained of, as distinguished from general ill will, is competent.” Under this rule it is competent to show that the defendant spoke or published words imputing the same general charge as that sued upon, although in different language. Enos v. Enos, 135 N. Y. 609, 32 N. E. 123; Cruikshank v. Gordon, 118 N. Y. 178, 23 N. E. 457; Barker v. Prizer, 150 Ind. 4, 48 N. E. 4; Austin v. Remington, 46 Conn. 116; Kennedy v. Gifford, 19 Wend. 295; Thomas v. Croswell, 7 Johns. 264, 5 Am. Dec. 269; Larrabee v. Tribune Co., *55236 Minn. 141, 30 N. W. 462; Gribble v. Pioneer Press Co., 34 Minn. 342, 25 N. W. 710; Fredrickson v. Johnson, 60 Minn. 337, 62 N. W. 388. But this rule does not permit the introduction in evidence in such action of words spoken or published on another occasion and of a different nature from those sued upon, although they are offered entirely for the purpose of showing that the words charged were spoken with a malicious intent. Finnerty v. Tipper, 2 Campb. 72; Howard v. Sexton, 4 N. Y. 157; Frazier v. McCloskey, 60 N. Y. 337, 19 Am. Rep. 193; Root v. Lowndes, 6 Hill, 518; Distin v. Rose, 69 N. Y. 122; Bodwell v. Swan, 3 Pick. 376; Schenck v. Schenck, 20 N. J. Law, 208; Watson and Wife v. Moore, 2 Cush. 135.
From an examination of the cases just cited it will appear that the rule which permits the proof of a repetition of the same charge or of words of the same import does “not permit a distinct calumny uttered by the defendant to be given in evidence to prove his malice in speaking the words for which the action is brought.” In Distin v. Rose, supra, it was said that “the repetition of the words and the publicity of the circumstance of their utterance were proper to show the motives of the defendant and extent of the injury. * * * A repetition of words imputing the same charge alleged in the complaint to have been made may be proved to have been spoken at any time before the commencement of the action, but not words imputing a different charge (citing 60 N. Y. 337, and 4 N. Y. 161).” In Howard v. Sexton, supra, the defendant had charged the plaintiff with having sworn falsely before arbitrators. The trial court permitted the plaintiff to prove that at a different time and place the defendant, in speaking of the arbitration, said, “The way they got the money was no better than highway robbery.” The court received the testimony “as evidence of malice, to show with what mind the words laid in the declaration were spoken, and for no other purpose.” This was held to be reversible error. The court said: “It has sometimes been argued that proof of this character shows general malice upon the part of the defendant which may properly enhance the damages against him. So would evidence that he had set fire to the house of the plaintiff or committed a battery upon his person furnish stronger proof of general malice than words, however opprobrious. * * * The modern, and I think the better, doctrine, is that the action for slander was not designed to punish the defendant for general ill will towards *553his neighbors, but to afford the plaintiff redress for specific injuries. To constitute that injury, malice must be proved, not merely general ill will, but malice in the specific case set forth in the pleading, to be inferred from it and the attending circumstances. The plaintiff may show a repetition of the charge for which the action is brought, but not a different slander for any purpose.” The doctrine in ¡this case was also laid down in Watson v. Moore, 2 Cush. 133, and was followed and approved in Barr v. Hack, 46 Iowa, 308. See, also, Scougale v. Sweet (Mich.) 82 N. W. 1061, 1065; Jacobs v. Cater, 87 Minn. 448, 92 N. W. 397. Tested by this rule it is apparent, we think, that the Jones affidavit was not admissible. It was made by the defendant upon another occasion, six months before Wendall had made the affidavit which is the basis of this action and eight months before the defendant published it. It does not relate to the latter in any way or to the substance of any of the charges contained in it. The Wendall affidavit, by imputation, charges the plaintiff with a corrupt and willful refusal to perform a legal duty and with shielding criminals for a money consideration; in short with gross and willful judicial corruption and dishonesty. Exhibit E contains no such charges. It is doubtful whether it even shows the existence of general malice. Apparently it negatives it, for it expressly states that when the defendant was represented by attorneys other than McCumber, Bogart & Forbes he filed no affidavit of prejudice. But if it were conceded that an affidavit of prejudice which is made and filed for the purpose of securing another judge and under a statute authorizing that procedure, or a corroborating affidavit of like effect, is per se defamatory and prima facie indicates actual malice in its execution, a proposition we do not admit, still Exhibit E was not admissible in this case, for the charge contained in it is only prejudice (and in this case it is prejudice, not toward the defendant, but toward a third person), and is not a charge of willful corruption, such as is charged in the Wendall affidavit. If the charge of prejudice could be said to be defamatory, it was of a different nature, and under the rule above stated it was not admissible.
The second reason for its inadmissibility does not rest upon the character of its contents, but rather upon the circumstances under which it was made. It was made and filed in a judicial proceeding, and was pertinent to the issues. The occasion was privileged, and exempted the defendant from liability, even though the state*554ments contained in it were both false and malicious. It is well settled that “no action for slander will lie against a witness for wh^t he says or writes in giving evidence in a judicial proceeding, notwithstanding it may be malicious and false. The privilege which exempts a witness from such action is absolute.” Hunckel v. Voneiff, 69 Md. 179, 14 Atl. 500, 17 Atl. 1056, 9 Am. St. Rep. 413; Hoar v. Wood, 3 Metc. (Mass.) 193; Liles v. Gaster, 42 Ohio St. 631; Torrey v. Field, 10 Vt. 353, 413 ; Mower v. Watson (Vt.) 34 Am. Dec. 704; White v. Nidholls, 3 How. 266, 11 L. Ed. 591. Even “words spoken by a witness in a judicial proceeding concerning a stranger to the suit, which are pertinent to the issues involved and fairly responsive to the question propounded to him, are absolutely privileged, notwithstanding actual malice.” Cooley v. Galyon (Tenn.) 70 S. W. 607, 60 L. R. A. 139, 97 Am. St. Rep. 823; Cooper v. Phipps (Or.) 33 Pac. 985, 22 L. R. A. 836 and note; Blakeslee v. Carroll (Conn.) 29 Atl. 473, 25 L. R. A. 106; Shinglemeyer v. Wright (Mich.) 82 N. W. 887, 50 L. R. A. 129; Hutchinson v. Lewis, 75 Ind. 55. But this exemption from liability does not mean that the testimony of a witness is privileged in the same sense that communications between husband and wife, attorney and client, and physician and patient are privileged, i. e., that they cannot be offered in evidence. The conditions under which the testimony of a witness may be introduced in other actions or proceedings are so well known that they need not be stated. The words of a witness are privileged in a sense that they are not actionable. For greater freedom in eliciting truth the law makes the occasion one of absolute privilege, and presumes that the statements of the witness are made in good faith and without malice. It is not because the testimony of a witness is privileged ■that it is not admissible to prove actual malice. The real reason, and it is a simple one, is that the statements of the witness, having been made upon a privileged occasion, are presumed to have been made in good faith and without malice. It ought to be self evident that a statement made under circumstances from which the law presumes that it was made in good faith and without malice cannot afford proof that a similar or other statements were made with malice. As one case puts it, “a malicious intent cannot be predicated upon a truthful exposition of facts.” Throckmorton v. Evening Post P. Co., 35 App. Div. 396, 54 N. Y. Supp. 887. The case of Watson and Wife v. Moore, 2 Cush. 133, is directly in point. *555■The plaintiff alleged in that case that the defendant had stated that he was guilty of “stealing two beds.” For the purpose of showing his actual malice in making the statement, the plaintiff was permitted to introduce a sworn complaint which the defendant had filed with a magistrate, charging the plaintiff with stealing “a lot of wood and old iron,” and also to introduce the testimony of the defendant given upon the trial. This was held to be error, for two reasons: (1) Because the words used in the sworn complaint did not relate to the charge which was the subject of the action, and (2) because the words were used before a magistrate having jurisdiction of the supposed offense. Upon the second ground the court said: “The complaint made by the defendant, and his testimony in support of it, on the hearing before the magistrate, are not to be regarded as slanderous words spoken by the defendant. They were proceedings in a court of justice, before a magistrate who had jurisdiction of the offense charged; and the defendant is in no way to be held answerable for them as for a slander. This has been the settled law, ever since the reign of Henry VII. Beauchampe v. Croft, Keilw. 26, and Dyer, 285; March on Slander (Ed. 1674) 92; Bac. Ab. ‘Slander', E; 2 Stark. Ev. 874; 2 Leigh’s Nisi Prius, 1369; Fowler v. Homer, 3 Camp. 294; Hoar v. Wood, 3 Metc. (Mass.) 197. If the charge then made by the defendant was false, and known by him to be so, he may , be indicted for perjury. If the charge was malicious, and without probable cause, he is liable to the plaintiffs in an action for malicious prosecution. Even in such an action, neither malice nor want of probable cause would be presumed in the first instance, but both must be proved by legal evidence. In the present case, the proceedings before the magistrate, as given in evidence at the trial, do not warrant the inference that the defendant was actuated by malice. The legal presumption is that he acted bona fide, and the contrary cannot be shown on the trial of the issues joined in this case. If it is not shown, and cannot be shown, that the defendant was then actuated by malice, those proceedings furnish no evidence that the charge for which this action is brought was maliciously made by him. * * * In the present case, the defendant made a complaint to the magistrate, on oath, and testified, on oath, at the hearing. For this reason, as before stated, he must now be presumed to have acted with good faith.”
*556McDavitt v. Boyer (Ill.) 48 N. E. 317, is to the same effect. The court said: “It is true, as a general rule of law, that, if words are in themselves actionable, malicious intent in .publishing them is an inference of law, and therefore needs no proof. * * * Generally speaking, every defamation is presumed by law to be malicious. * * * But this general -rule is subject .to the important qualification that, where the 'injurious utterance is privileged, the law does not presume malice, and express malice must be .proved by the plaintiff. Privileged communications constitute an exception to the general rule that the utterance of actionable words implies malice. Such privileged communications are presumed not to be malicious; in other words, the law does not imply malice when the injurious communication is privileged. In such case the occasion on which the utterance was made prevents the ordinary inference of malice. * * * The question then arises, what are privileged communications, within the signification of the term as applicable to cases like the present? In other words, when are injurious utterances privileged, so as to prevent the inference of malice? In the first place, such privilege belongs to a witness testifying upon the stand in a court of justice. No action for slander will lie against a witness for what he says or writes in giving evidence in a judicial proceeding, notwithstanding it may be malicious or false. The privilege that exempts a witness from such action is absolute. An action for slander will not lie for testimony given in a case if such testimony is pertinent and material to the subject of inquiry. No witness should be compelled to take the stand with the fear hanging over him that an action of slander may at some time be brought against him for what he says as a witness. Public policy and the interests of public justice require that statements made by witnesses when testifying^ in courts of justice should be privileged, and that witnesses should not be liable in civil actions for reflections thrown out in delivering their testimony. * * * Cooley, in his work on Constitutional Limitations (6th Ed. 542), says: ‘Among the cases which are absolutely privileged on reasons of public policy, that no inquiry into motives is permitted in an action for slander or libel, is that of a witness giving evidence in the course of a judicial proceeding. It is familiar law that no action will lie against him at the .suit of a party aggrieved by his false testimony, even though malice be charged.’ * * * Whatever is said or written in a legal pro*557ceeding, pertinent and material to the matter in controversy, is privileged; and no action can be maintained upon it. Spaids v. Barrett, 57 Ill. 289, 11 Am. Rep. 10; Strauss v. Meyer, 48 Ill. 385. Malice cannot be predicated of what is said or written in a proceeding in a court of justice. Words spoken to a magistrate in the course of a judicial proceeding, though they may be slanderous and malicious, are not actionable. * * * Mere proof of what he uttered under these circumstances is not prima facie proof of malice. The utterances thus made do not of themselves imply malice.” The following cases directly sustain our conclusion that a statement made upon a privileged occasion is no evidence that the same or other statements were made with actual malice: Fahr v. Hayes (N. J.) 13 Atl. 261; Evening Journal Association v. McDermott, 44 N. J. Law, 430, 43 Am. Rep. 392; Shinglemeyer v. Wright (Mich.) 82 N. W. 887, 50 L. R. A. 129. The contrary view, expressed in Davis v. Starrett, 97 Me. 568, 55 Atl. 516, and relied upon by plaintiff’s counsel, is based upon reasons which wholly ignore the presumption of good faith with which the law clothes all statements made upon privileged occasions. For the reasons already stated it is patent that the admission of Exhibit E was error, and it is equally clear, we think, that it was highly prejudicial. It was introduced solely to show the defendant’s malice in publishing the Wendall affidavit, and was submitted to the jury for that purpose and no other. In it the defendant testified to facts bearing upon an alleged personal and political enmity existing between the plaintiff and P. J. McCumber, adversely to the plaintiff, and that as a consequence tire plaintiff was prejudiced in all cases in which said McCumber was interested. The trial court submitted this to the jury as competent evidence of malice, and upon it the jury were authorized to'sustain the plaintiff’s action and to measure the damages to be awarded. To what extent the erroneous admission of this affidavit, and its emphatic statements in reference to a bitter controversy wholly foreign to this case, contributed to sustain the plaintiff’s cause of action, or how much it added to1 the award of punitory damages, cannot, of course, be known; but that it was highly damaging is certain. Whether, as counsel for plaintiff contend, the affidavit was competent for impeaching the testimony of Jones, which was, in effect, that he was and had been personally friendly to the plaintiff, and had always said that he was an upright judge and an upright man, we need not determine. It is sufficient *558to say that it was not offered in evidence or given to the jury for that purpose. It is true, evidence which is competent for one purpose cannot be excluded because it is incompetent for another purpose. It may be admitted and restricted to the proper purpose. As to' such evidence this court had said that: “Where evidence is properly admitted in the ease for one purpose, it will not be presumed, in the absence of a showing, that it was considered for a purpose for which it was not proper; particularly when the court, in its charge, directs the jury to consider it only for its proper purpose.” State v. Kent, 5 N. D. 516, 67 N. W. 1052, 35 L. R. A. 518; Letton v. Young, 2 Metc. (Ky.) 558. Had the affidavit in fact been offered for impeachment, the above rule would have been applicable; but it was not offered for that, but for an improper purpose solely, and the injury resulting is not diminished by the fact that it might have been offered and1 restricted in its use for another and proper use.
One further question remains. It is urged on behalf of the defendant that the rule followed in the original opinion, i. e., that the truth of the alleged libelous charge cannot be proved under a general denial and in the absence of a plea of justification, does not apply when the charge is privileged. There is authority for this view. In Edwards v. Chandler, 14 Mich. 474, 90 Am. Dec. 249, this language was used: “Where a communication is privileged, the plaintiff cannot recover without proving affirmatively, not only the falsehood of its contents, but also that it was published with express malice. Unless he can prove both of these grounds, he must fail. The falsehood being a necessary part of the case to be made out by the plaintiff, the truth is but a contradiction of that case, and may be made out under the general issue, therefore without resort to a special plea or notice.” The rule laid down in this case and others tending to sustain it is unsound in principle and opposed to • the great weight of authority. It is not a part of the plaintiff’s case to prove the falsity of the words. “The falsity of the words is indeed always presumed in the plaintiff’s favor.” Newell on Slander and Libel 771; Palmer v. Mahin, 120 Fed. 737, 57 C. C. A. 41; Mallory v. Bennett (C. C.) 15 Fed. 371. And this is true when they are used on a privileged occasion. “A libelous statement made on a privileged occasion is presumed to be untrue, and the burden of proving its truth is on defendants, though the nature of the occasion saves them, in the first instance, *559from the imputation of malice.” Cranfill v. Hayden (Tex. Civ. App.) 75 S. W. 573. In Atwater v. Morning News Co. (Conn.) 34 Atl. 865, the contention was advanced that as to a statement made upon a privileged occasion the plaintiff has the burden of proving its falsity. This the court denied, and said: “The opinion of the court in Edwards v. Chandler, 14 Mich. 475, 90 Am. Dec. 249 (and one or two other cases cited by the defendant), seems to afford excuse for this claim, but we hardly think that such was the real intention of the learned judges who gave the opinion in those cases.” The only exception that occurs to us, and it is more apparent than real, is when a plaintiff, to prove actual malice, attempts to show that the defendant published the statement, knowing it to be false, a method of proving malice which is always available, and which, if successful, affords conclusive evidence of malice. The plaintiff must, in that event, show (1) that the statements are false in fact, and (2) that defendant knew them to be false when he published them. In such cases the defendant may meet the plaintiff’s evidence with evidence that the statements were true. This is meeting the .issue as to the truth of the charge, which the plaintiff has voluntarily tendered. When it is not thus tendered, the defendant cannot offer evidence of the truth of the charge unless he pleads it.
(101 N. W. 907.)For the error above pointed out, the order denying a new trial must be reversed, and it is so ordered.
All concur.