James Lathan vs. John Berry, 1 Port. 110

By Mr. Justice Saffold : Berry, the defendant in error, having sued Lathan for slanderous words, obtained a judgment ¿gainst him for'five hundred dollars, in the Circuit Court of Madison county ; to revise which, Lathan prosecuted this Writ of error. The pleas on which Lathan relied,' were justification, and not guilty. The only matter excepted to, is the decision of the court., excluding .frpm the jury evidence offered by Lathan, to prove that a few days after using the slanderous word’s, he explained to the person before whom the same were expressed, the nature of the charge he had intended to impute to Berry.

The substance of the evidence was, that the plaintiff below, had proved by several witnesses, that the defendant, on or about the day mentioned in the declaration, speaking of a suit in which the false evidence was charged to have been given, (and which related Jo the failure of Lathan, as a justice of the peace, to return a recognizance,) said, the plaintiff had sworn to a lie against him, in saying that the recognizance was taken at the house of James Lathan, when in fact it was taken at the house of Barbary Lathan, two and a half miles from James Lathan’s residence.

The plaintiff also proved by another witness, Ball, that the defendant told him, that plaintiff Berry had sworn to a lie on the same trial, against him, without specifying the circumstances. Lathan’s counsel then proposed to interrogate Ball to the fact, whether or not, a few days afterwards, and before the institution of the suit, Lathan had explained the charge, and informed him in what the lio consisted, as before charged. This evidence being objected to, was excluded by the court. The exclusion of this testimony is the cause here assigned for error.

Some of the principles embraced by the argument, are conceived not to be necessarily involved in the question presented for the consideration of the court. Whether in an action of slander, where the defendant pursuant to the statute, pleads justification, and also thé general issue— any facts are admitted of record, so as to vary the proofs that would otherwise be necessary or admissible on either side, (even if it is to be viewed as res integra, in this court,) is considered immaterial in the determination of this cause.

It was the defendant below who moved the introduction of this testimony, which consisted of his own declarations or assertions, made on a day subsequent to the utterance of those for which he was charged to answer, and of course in a different conversation.

If it could be conceded that this plea of justi-ficatio'n, in conjunction with that of not guilty, (Superseded tlie necessity of proof on the part of the plaintiff, of the truth of the allegations, accoi-ding to the Massachusetts decisions; or if the contrary principle, of more' general prevalence, be reecognized, yet the rule is uniform that an offending party can. not, after the commission of the offence, purge it by his own declarations, and thus manufacture evidence for himself.

Nor can a defendant, who has pleaded in justification, and therein varied the state of the facts from those alleged (as is here suggested to be the case) be allowed any greater privilege in this respect. In this case, however, the words attempted to be justified, are substantially the same with those charged, as they must necessarily have been. A defendant is not permitted by such plea to vary the issue— ^ie lmlst confess the words as laid. One against whom slander has at any time been uttered, has a right to sue for the same, and to found his action on the most offensive words.

For these alone, with such qualification, explanation, &c. as then accompany them, within the hearing of the same persons, the defendant is responsible. Any thing said by him at a different time or place, either of denial, mitigation, br aggravation, is not evidence for any purpose, except so far as the plaintiff may choose to- use it as such. The right contended for on the part of the plaintiff in error, tO' mitigate the damages, by introducing evidence of his subsequent explanatory conversation, is believed to derive no sanction from any authority referred to in argument.

The case of Buford McLung, cited in opposition to the right, recognises the principle of many other cases — that facts and .circumstances, showing a ground of suspicibn, though not amounting to actual proof of guilt, may be available in mitigation of damages. The evidence in question related to the bad character of the plaintiff. The decision in Baily vs. Hyde, maintains the same principle. But it is argued that this case may be assimilated to an action of trespass for taking and carrying away the plaintiff’s goods, and that there the defendant would be permitted to prove a subsequent return of the

article in mitigation. If the principle be admitted, the analogy between the cases is conceived tobe very slight. In the one case, the injury is to property, and consists not only in the taking and carrying away, but also in depriving the owner of the use and value of it, if not returned. If returned in a short time, in-the same or nearly the same condition, the injury is rather nominal than real, and the damages are obviously mitigated, so as to admit of a satisfactory computation of the amount. Not so with respect to this subsequent and explanatory conversation.

The defendant below may have uttered the slanderous words in the hearing of many, yet proof of it by one, or a few, would be sufficient to sustain the. plaintiff’s action. If one of these same witnesses who heard the imputation, af-terwards received an explanation, mitigating the nature of the chai-ge, it does not follow that all of them have; or that the same witness would communicate the explanation to all to whom he or others may have disclosed the matter.

To render the case supposed, parrallel to this, it would appear necessary to maintain the right of a defendant in trespass, to introduce evidence of his own declarations subsequently made, to establish the authority for, or motive of his action, and thereby show that the plaintiff’s injury was less than it would otherwise appear to be. We are of opinion that the judgment must be affirmed. Stark. on Sl. 339. 1 Noot & M'Cord, 268. 3 Con. Rep. 463.