BEEHLER against STEEVER, 2 Whart. 313

The opinion of the Court was delivered by Rogers, J. This is an action of slander, for falsely and maliciously uttering the following words : “You are a villain and a swindler, and you conspired with others to cheat me.” And in another count, “'You are a damned villain and a swindler, and you conspired with others, to cheat and swindle me out of my money.” The plaintiff gave in evidence the speaking of the words laid in the declaration, with evidence of the violent conduct of the defendant, and then asked the following question: “ Wha.t was the general size and build of Mr.

Beehler’s person1?” The court admitted the testimony, and of this the defendant complains. It is difficult to perceive what connection evidence of this description can have with an action for slanderous words; and accordingly it is admit- > ted, that, in general, such evidence is inadmissible. But it is said this case forms an exception ; but I have been unable to discover any thing peculiar in its circumstances, which exempts it from the general rule.

The evidence is not merely irrelevant, but, from its character, it is calculated to be highly prejudicial to the defendant, by influencing the feelings and passions of the jury, by highly coloured representations of the herculean strength and gigantic size of the defendant. In the hands of skilful and eloquent advocates, we may readily conceive, that topics of this kind may be wielded with great effect.

If evidence of the size and general build of the defendant’s person may be admitted, for the same reason we must enter into a comparative estimate of the bone, sinew and muscle of the respective parties, with a view to test their relative strength, in an action of slander. And if such testimony may be received to measure the damages, there can be no reason assigned why evidence of the size and strength of the plaintiff may not be admitted in mitigation; and this would lead to an inquiry, totally foreign to the issue, and tending, in its results, to mislead and distract the jury.

It is difficult to conceive that words spoken may be more or less slanderous or obnoxious to small or excessive damages, merely from the relative strength of the plaintiff and defendant. If this was an action for assault and battery, some reasons might be offered that might avail the plaintiff; but in this action, it seems to me, there was most manifest error in- the admission of this evidence. The last branch of the first error has not been sustained. It is clearly competent to show' the number of children, and the state of the plaintiff’s family.

The defendant also complains of the rejection of the testimony, embraced in the second, third and fourth errors. That may be included under one head, and was in substance this. The defendant offered to prove that he was in the habit of signing notes for the accommodation of a certain A.

M'Caraher, through the influence of Steever, the plaintiff; that the notes were renewed by the same influence; that they remained unpaid at maturity; and this maturity occurred after the assignment of M'Caraher had been made; that the defendant had a conversation with Mark Richards, one of the assignees of M'Caraher, respecting the assignment, within forty-eight hours of the time the words were spoken, in which he expressed his dissatisfaction with the order in which the creditors were preferred in the assignment; that he, Beehler, was a creditor of A.

M'Caraher; and that in the assignment, which was also offered in evidence,- dated the 16th of July, 1836, to Mark Richards and E. Vansyckel, such a disposition was made of the property of A. M‘Caraher, as was injurious to the defendant, and of such a character, as probably to produce loss to him. And that M. Richards, the assignee, who was the uncle and employer of Steever as his confidential clerk, was so largely preferred therein as a creditor, as probably to absorb the funds of the estate; that the debt of Mr.

Richards was contracted in the ordinary course of dealing; notwithstanding which, he was preferred over the defendant, who signed the notes of- M‘Carahei', without value, for his accommodation ; that the conversation, in which the words laid in the declaration, were spoken, had relation to the assignment; and that, under the influence of his losses, he used these words at an accidental meeting between him and the plaintiff', Steever. The evidence was offered, as is expressly stated in the bill of exceptions, in mitigation of damages, and not in justification of the slanderous words.

It was opposed, as is now stated, on two grounds. 1. Because there was no notice given, under the thirty-sixth rule of the District Court, which requires ten days notice of the special matter intended to be offered on the trial under the general issue- 2. Because the facts thus offered, cannot be given in evidence, in • mitigation of damages. As to the first, it is by no means clear that this objection was taken at the trial; but if it had been, it cannot avail the plaintiff.

The rule, in actions of slander, notwithstanding some loose expressions to the contrary, is, that any defencé, which does not amount to a justification, may be given in evidence under the general issue, in mitigation of damages. A justification must either be pleaded specially, or, according to a very general practice in this state, may be given in evidence under the general issue, on notice given to the opposite party, ten days before the trial.

The only effect of the rule in the District Court would seem to be, to substitute notice* of a justification, rather than put the party to the trouble of drawing out. a formal special - plea. But it was not intended to require that notice should be given, of facts which go in mitigation of damages merely. But can the evidence be given in mitigation of damages ?—is the next question.

Malice is of the very essence of an action of slander, and as a general rule, any thing which shows the existence of the malice on the one hand, and the want of it on the other, or 'the degree and extent of the malice, may be laid before the jury, and has a material bearing as the case may be, either on the maintenance of the suit, or on the amount of the damages. And such allowances have been made for the infirmities of our nature, that in Knobel v. Fuller, (2 Peake Ev. 287,) which case is referred to, and approved in .Morris v.

Duane, it was ruled, that the defendant may in mitigation of dam ages, prove, on the general issue, such facts and circumstances, as show a ground of suspicion, not amounting to actual proof of the plaintiff’s guilt. If a person truly believes, although mistaken in point of fact, that he has a good cause, and in a moment of irritation and passion makes a criminal charge against another, he is surely not as culpable as where the accusation is made without any reason, either actual or supposed.

The malice is much greater in the one case than the other, and the party is liable to be mulcted in damages to a much greater extent; for the actual injury which the plaintiff’s character has suffered, is not the only criterion of damages, but the jury may take into their estimate the wickedness of the plaintiff in making an accusation against his neighbour without any cause-for suspicion. On the same principle it has been decided, that a person may give in evidence that another told what he related ; and this even when the slander is spoken without reference to the informer.

Kennedy v. (Gregory, 1 Hinn. 90.) And in Morris v. Duane, in a note to 1 Bin. 90, Chief Justice Tilghman, at Nisi Prius, pennitted the defendant to prove in an action for a libel, a writing purporting to be the copy of an anonymous letter, which from certain marks on the back of it, was inferred to have been in the possession of B. F. Bache, and upon his death to have come to the defendant, who succeeded him as editor of the Aurora, in which the libel was published. “ The effect, - (says the Chief Justice,) of any evidence which a defendant may offer is _with the jury, the. competency with the court.

The question in this case is, whether the defendant is entitled to offer to the jury this letter, with the explanations for any legal purpose connected-with the cause. It certainly cannot be offered to prove the plea of not guilty, and it is no legal justification. But still, is it not material? Can it be that like damages should be given against two defendants, one of whom received his information from such sources as were entitled to a certain degree of credit, while the other devised it of his own wicked imagination ? I think it cannot.

Such evidence certainly goes to the degree of malice, and must weigh with the jury according to the circumstances which attended it. Whether these circumstances are such as ought in .reason to mitigate the damages, they will determine.” This was not a hasty decision of the Chief Justice, and has been repeatedly recognised in subsequent cases. Its bearing on this case is most obvious.

The evidence was offered in mitigation of damages, by showing the degree and extent of the defendant’s malice; for it is some extenuation of his conduct when we consider the occasion of his speaking the slanderous words', the transaction to which he alluded, and of which he had so much reason to complain; the connexion which Steever had with the parties to it, and the share he had in the transaction; the influence he exerted in procuring the accommodation of Beehler for M'Carahex’, and in acting in some .measure as his general agent in procuring accommodations for him.

Nor can the same blame be attached to him as if he had devised the charge without cause or shadow of suspicion.

Although thex-e is no proof of the actual participation of Steever in procuring the assignment, or of his agency in inducing M'Caraher, over whom Beehler naturally thought he had some influence, to prefer his uncle and employer, for a debt which was not particularly mexitorious, in exclusion of Beehler who was an endorser, and as such, usually preferx’ed in such assignment; yet there were circumstances connected with the transaction, which might have caused suspicion of some extraordinary influence in producing such a state of things, in a mind even more enlightened than the defendant’s appears to have been.

But it is said that forty-eight hours had intervened between the conversation and the speaking of the slanderous words, and this is a sufficient reason for excluding this testimony, and for this position the plaintiff relies on Avery v. Ray, (1 Mass. Rep. 12.) Lee v. Woolsey, (19 John. 329.) Cushman v. Waddell, (1 Baldw. 57.) But these were all cases of actions for assault and battery, which depend on different principles.

If the defendant had cause, to believe in the truth of the charge he made against the defendant, of what conse^ quence is it so far as affects the competency of his testimony, whether he heard the facts which were the grounds of his belief, forty-eight hours before, or at the very moment of speaking the slanderous words. This objection was not thought of either in Kennedy v. Gregory, or in Morris v. Duane; nor has it ever been alleged as a reason for excluding such testimony, that the information on which the defendant relied, was communicated to him some time before the speaking of the offensive words.

In actions for an assault and battery, it may be conceded that the defendant'in mitigation of damages, is confined to provocations which immediately precede the assault. It must be so recent, as to afford a fair presumption that the violence was committed under the influence, and during the continuance of excited feeling and passion, and this on a principle of policy which should repress, an'd not countenance revengeful feeling, nor in any way encourage an appeal to force and violence. But it is said, that this doctrine as to time was applied to slander in Beardsley v.

Maynard, (4 Wendell, 337.) In that case it was decided, that in an action for a libel, the defendant cannot give in evidence other libels published of him by the plaintiff, not distinctly relating to the same subject; and that the publication of a libel three days previous to the publication of the defendant’s libel against the plaintiff will not be received in evidence, in palliation of the offence, on the ground of provocation.

When the passions have had time to cool, redress can only be had by a resort to the legal tribunals of the country; for no man whose rights are protected by the law, should be the avenger of his own wrong. And where the previous publication has no no relation to the libel, it should not be received' to mitigate the damages. Nor is there any excuse for a libeller, that the other party has before libelled him.

But the evidence here was not offered on the ground of provocation, but to show that Beehler had some reason to believe in the truth of the epithets he applied to the plaintiff, as affecting the degree of malice in uttering the slanderous words, so as to explain the transaction to which he alluded. In no case that I have seen, has it been thought material, on the question of the competency of the testimony, that the party has received his erroneous impression, either recently, or at a remote period from the time the charge is made. In Beardsly v.

Lathrop, the principle is recognised, that if a connection can be traced between the publication of the one as an answer to the other, the former publication is evidence. The testimony was excluded, expressly because no such connection had been discovered. And in Hotchkiss v. Lathrop, in an action for a libel, it was permitted to give in evidence a former publication by the plaintiff, to which the libel was an answer, to explain the subject-matter, occasion, and intent of the defendant’s publication.

And for the same reason we think this should have been received, as it seems to explain the transaction, the occasion and reason of the offensive charge. It is also a circumstance of some weight, that the conduct of which the plaintiff complains, occurred at an accidental meeting, and that immediately after Beehler being convinced of the impropriety of his conduct, he acknowledged his error, and tendered all the amends in his power.

In answer to the errors assigned to the charge: We have examined the charge in connection with the errors, and we can discover nothing, of which the defendant can justly complain; nor is there any thing which has been alleged as error, which requires particular notice, except the answer of the court to one of the defendant’s points.

The court was requested to charge the jury, that if they believe that the words spoken were, “ I believe you are conspiring with others to cheat me out of my money,” they are not actionable; and that there is a variance between the words laid and proved, and that the verdict ought to be in favour of the defendant. It cannot be urged, with any prospect of success, that the words, “ I believe you are conspiring with others to cheat me out of my money,” are not actionable. The question has been too often settled, now to admit of doubt.

Nor was this point pressed, but the latter branch of the proposition was insisted on. This is a point, not without plausibility, but yet it. seems tq be settled by authority. In actions of slander, it is only necessary to prove, in substance, the words laid in the declaration; and for the defendant to say, “ I believe you are conspiring with others to cheat me,” amounts, in substance, to a positive charge, that you are conspiring with others to cheat me. It is equal to a positive averment of'guilt; for a man only avers a thing because he is cognisant of it. And this point was so decided in Miller v.

Meller, (8 Johns. Rep. 74.) The words laid in the declaration were, “ Tina Miller has stole my watch, and Polly Miller has concealed it for her.” The proof at the trial was, that the defendant said that his watch had been stolen from him in. the plaintiff's bar-room, and that he had reason to believe that Tina Miller took it, and that her mother concealed it. It was held by the court that the words, in substance, were the same, and supported the declaration.

The court say, “the defendant made a positive charge that his watch had been stolen in the bar of the plaintiff, and he added, that he had reason to believe that Tina Miller had taken it, and that her mother had concealed it. The assertion that he had reason to believe that the one took, and the other concealed it, is equivalent to the charge that the one stole, and the other concealed it.” Oldham v. Peck, (2 Bl. Rep. 961,) is to the same point, where the court held, that to say, “ I am thoroughly convinced that you are guilty,” is equal to a positive averment of guilt.

Besides, so much depends upon the manner in which the words are spoke, that the court were right in saying to the jury; that it was not for them to pronounce peremptorily that there was such a variance as to require a verdict for the defendant. Judgment revérsed, and a venire de novo awarded.