Commons v. Walters

1 Port. 323 | Ala. | 1835

■ -By Mr. Justice Thornton-: "

This was an action of slander,'brought by the defendant in error; and the declaration contains five counts; in all of which except one, the slander is charged to consist, in the verbal imputation, by the plaintiff in error, that the defendant bought cotton of negro slaves ; and in that one, it is charged to be, that the defendant hired negroes.to steal cotton, and then bought it of them. There appears to have been a demurrer to the whole declaration, which being overruled, was abided by ; arid pleas of not guilty, and justification, were filed to all the counts, on which issues were joined. During the progress of the trial, a bill of exceptions was signed, taken by the plaintiff in error to the rejection by the court of the following testimony, viz : “ that it was generally suspected in the neighborhood, that the keeper of this shop (one proved to be kept by the defendant in error) traded with negro slaves.”— The defendant further offered “to prove that it was generally suspected in the neighborhood that the plaintiff did trade with negro slaves for cottonThe assignment of errors, relates alone to this matter. Under the plea of justification, I do not hesitate to conclude that this evidence was inadmissible ; for great precision is required, both in the plea, and in. the proof under it. The truth is undertaken to be proved,, which if established, removes all ground of claim for dama- " ges.^a No suspicion, however stronger general, will amount to proof of a fact. Nor is common,frme any ground for justification. But the general issue is abo pleaded here, and feel well assured that the construction of our statute authoris-ing both pleas, should be such, as not to restrict in any manner the latitude of the pleaders evidence; but that any, which might be introduced under either plea, may still bo adduced, though both are on file. Then we must consider, whether the rejected evidence is admissible under the general issue. If at all, it can only he with a view to the mitigation of damages. If a plaintiff sue for an injury done to his character by a particular charge, uttered and published 'against him ; as the loss of character, is the basis of damages, the conclusion in my mind is irresistible, that proof of want of it, previous to the timo of uttering the accusation, by' a general ¡suspicion of his guilt in the very particular charged, is most appropriate testimony under the general issue.^b This then being the o:i!y ground on which the admissibility of evidence of the nature of that oMc::e:l in this case, cambe maintained, it is plain, that it should relato obviously, and expressly, to a time anterior to the uttoring of the slander ; for if.it be referable to a ti. o sub.'jauoat to its promulgation, and. admitted, then the shando.vr bus only to be artful, and industrious in the propagation of his calumny, and the success of Ids crime will insure Lis impunity. The testimony offered in this case is not thus explicit in its application; and for that cause was properly rejected.

There being no ether assignment of error,, the judgment, must bo affirmed.

a 3 Bl. Com. 125.

b gtnrkio on Slander 409; 2 Camp. N. 251.