delivered the opinion of the court.

This is an action for libel, and the defendant in answer thereto filed the general issue, and gave notice of special matter it would rely upon in its defense. The notice was to the effect (a) that a part of the letter was true; (b) the letter stated facts believed to be ture, and that the writer was without malice when he wrote the letter, and merely stated the facts, with no intention of casting any reflection of any kind or character on the plaintiff.

It is claimed here that the letter was written upon an occasion and under such circumstances as to make of it a qualified privilege. Conceding this to be true, it is contended by appellee that this issue was not made by the pleadings, nor by the instructions in the trial court, but is raised here for the first time. But it is said in argument that evidence was introduced upon the trial showing the occasion and the circumstances, and also showing the writer of the libelous matter was not actuated by malice. Appellee replies to this last contention, that under section 743 of the Code of 1906 this evidence was *679admissible in mitigation of damages, although it was not specially pleaded, and there being no plea in bar filed, and no notice under the general issue of special matter in bar, this evidence could only be considered by the jury in mitigagtion of damages.

We hold that the issue made by the pleadings did not authorize a consideration of the alleged qualified privilege, because notice thereof was not given, and that the case was there fought out upon other issues presented by the pleadings. Section 744, Code of 1906; Tittle v. Bonner, 53 Miss. 578. The evidence did not justify a peremptory instruction for the defendant, and the defendant must stand or fall by the record made in the lower court.

Affirmed.