Shepard v. Merrill

13 Johns. 475 | N.Y. Sup. Ct. | 1816

'Thompson, Ch. J.

Where. the;réeord is made up, we have not required a special assignment of errors to the bill'of exceptions, but have considered,the general' assignment of errors as sufficient..

Spencer, J.,

delivered the opinion of the.count, TheCoUftbelow properly excluded the evidence offered on the trial. Notice, under the statute, must apprise the opposite party of.every ma* terifil fact intended to be given in evidence. The statute (1. N. R. L. 515.) authorizes a defendant to plead the general issue, -and to give any special matter in evidence which, if plead* ed,, would he a bar to the action, giving notice with the plea', of the matter, pr s everal matters, so intended to be given in evidence.

The true way to test the sufficiency of a notice,, is to inquire whether the matters contained in it, if pleaded specially, would be good On general demurrer,* Applying that test to this case, the answer is obvious. The declaration alleges that the defendant below -charged the plaintiff below With- á theft,'; and .tfié notice states that the plaintiff below sold the defendant’s shingles, without authority, and that he, afterwards, denied that he knew any thing about the shingles. This, by no means, imputes a larceny, but rather the telling a lie. It is not stated that the, shingles were taken privately, or feloniously; and if they were not, a subsequent denial of taking them would not make the taking felonious. A notice need not partake of the form and strict technicality of a special plea, but it must contain the substance of á plea; or, otherwise, what was intended for the ease and accommodation of one party, would operate most injuriously to the other, by surprising him with facts which he could not expect to meet. The ease of Lawrence v. Knies, (10 Johns. Rep. 142.,) contains the principle which I have endeavoured to elucidate.

No principle is better established, than that the truth of slanderous words cannot be given in evidence under the general issue, either as a defence, or in mitigation of the damages..

The facts offered to be proved on the trial of this case, under the notice, and in mitigation of damages, were irrelevant, and, therefore, correctly excluded.

Judgment affirmed.