Chesley v. Chesley

10 N.H. 327 | Superior Court of New Hampshire | 1839

Parker, C. J.

The report of the referees is regularly returned, and the burden of proof is upon the defendant, to show cause why it should be rejected. He shows that evidence of slanderous matter was admitted by the referees, which was of a character, if true, to furnish the foundation of another action, in favor of the plaintiff against the defendant. But this of itself furnishes no cause for setting aside the award.

In actions at law, for slander, evidence of actionable words, not stated in the declaration, may be admitted, to show the malice of the defendant in uttering the words upon which the action is founded. And we are of opinion that evidence of words, actionable in themselves, might well be admitted, to show the circumstances of contumely and aggravation which attended the refusal of the defendant to perform his contract. The plaintiff had a right to prove the circumstances attending the defendant’s breach of contract, and is not to be excluded from offering them in evidence, because they involved a slander, whether actionable or not. In an action for assault and battery, the declarations of the defendant, relative to the cause of the assault, whether made before, at the time, or afterwards, would be competent evidence. If those declarations contained an actionable slander, the defendant could not require that this part of his declaration should be severed from the connection in which he had placed it.

But the referees could not, under the submission, lawfully give damages for this slander, as a substantive grievance to the plaintiff. Here, again, the burden of proof is on the defendant ■ and he fails to show that any damages were given for any matters, other than those submitted.

Nor can the motion be sustained upon the second point. We have decided, that in an action of slander, evidence of general good character cannot be admitted, to rebut proof of specific facts, offered in justification, on the part of the defendant. Matthews vs. Huntley, 9 N. H. Rep. 146. But in this case the evidence of the plaintiff’s good character was introduced partly to show the aggravated nature of the defendant’s breach of contract. Even if it was not admissible at law, the report cannot be rejected for that reason. The referees, in admitting it, do not appear to have undertaken to decide according to law, and to have mistaken its principles. If they thought proper to receive evidence which might, equitably, have a bearing upon the case, but which could not have been admitted in a court of law, the report cannot be impeached for that reason.

Judgment upon the report.