4 Wend. 659 | N.Y. Sup. Ct. | 1830
By the Court,
There is no pretence for the application for granting a new trial in this case. The defendant had openly and publicly said that the plaintiff had stolen a sheep and he could prove it by a certain boy. When he is sued for the slander, instead of producing the boy or any body else to prove the charge, he wishes to excuse himself by proving that the boy told him so. The judge properly excluded the testimony, and was perfectly justified in the remark that the defendant had endorsed the slander of Archer by making the positive charge, and asserting his ability to make proof of its truth!
Where a defendant in slander does not pretend to justify, he may mitigate damages in two ways: 1. He may shew that the plaintiff’s general character is bad, not that it Was bad 15 years ago, provided it has been good ever since ; 2. He may shew any circumstances which tend to disprove malice, but do not tend to prove the truth of the charge.
Proving in this case that Archer had reported what the defendant charged upon the plaintiff, would not disprove malice, for it appears the defendant had taken uncommon pains to circulate the slander. Neither would it prove the plaintiff’s guilt; but if it was to have any effect, its tendency was to excite suspicion in the minds of the' jury that the plaintiff was guilty.
As to proof of reports generally, there is great force in the remark of Ch. J. Parker, in Bodwell v. Swan, (3 Pick. 378 ;) “ These very stories,” says he, “ may have originated in slander, and character could not be protected if the third or fourth circulator should|be able to defend himself or reduce the damages because he only gave more publicity, and added the weight of his character to calumny which had been
There is certainly no reason why the plaintiff should be met with a justification without being informed of it by a plea or notice. Mitigating circumstances, based on a pres umption or suspicion of the plaintiff’s guilt, have nearly the same effect upon his character as a verdict against him; and if reports may be given in evidence, reports will ruin a man’s character without any possibility of redress. If under slanderous reports a man neglects to prosecute, a presumption arises against him; if he dees prosecute, those very reports amount to what is equal to a justification. So that if reports may be given in evidence, any man’s character may be blasted. (6 Mass. Rep. 514. 5 Cowen, 500. 7 Cowen, 630, 633.)
I am therefore clearly of opinion that no such reports can properly be given in evidence, unless under circumstances which shew the absence of malice and an admission of the falsity of the charge.
There are some English cases which contain a contrary doctrine. (1 M. & S. 284. 2 Campb. 251.) But Ch. J. Mansfield, in admitting the testimony, declared that he could not answer the arguments urgued against its admission.
New trial denied.
