1 Doug. 321 | Mich. | 1844
delivered the opinion of the Court.
We have no doubt that the testimony sought to be introduced under the notice, was properly rejected. The notice is clearly defective. Although, in a notice of special matter, appended to a plea of the general issue, technical formality may be dispensed with, still, all substantial facts necessary to constitute a good special plea must be averred.
The statute, (S. L. of 1839, p. 225,) authorizes a de
2. The testimony adduced by the plaintiff, under the general issue, and rejected by the Court below, was offered for the avowed purpose of rebutting any presumption of malice that might have been raised by the defendant at the trial, and thus mitigating the damages. It was ob
It seems to have been formerly holden, that such evidence was admissible under the general issue. A contrary rule, however, has long prevailed. In Starkie on Slander, 241, it is said: “The rule of law upon this head has long been settled, that the defendant, if he mean to rely on the truth of that which he has published, either in bar of the action, or in mitigation of damages, must plead it specially.” Underwood v. Parks, 2 Strange 1200, is the leading English case upon this question. There, in an action for words, the defendant pleaded not guilty, and offered to prove the words to be true, in mitigation of damages; but the judge refused to permit it, saying, that at a meeting of all the judges, in a case that arose in the Common Pleas, a large majority of them had determined not to allow it for the future, but that it should be pleaded, whereby the plaintiff might be prepared to defend himself, as well as to prove the speaking of the words: that this was now a general rule among them all, from which no judge would think himself at liberty to depart, and that it extended to all sorts of words, and not barely to such as imported a charge of felony. The rule established in this case seems to have since predominated, both in England and this country, and to have settled beyond controversy, that the truth of the words spoken cannot be given in evidence under the general issue, either in justification, or in mitigation of damages. But what facts and circumstances may be given in evidence under such plea, has been, by no means, so clearly determined. The English courts, in cases where no justification is pleaded, appear to have held, that, in actions for words, the defendant might, in mitigation of damages, give any evidence short of such as would be a complete defence to the action had a justification been pleaded. Starkie on Slander, 406.
That the evidence offered by the plaintiff in mitigation, to show that the specific facts, in which the slander consisted, had been communicated to him by other persons, was correctly excluded, is most satisfactorily shown by Mills v. Spencer, Holt’s N. P. Cases, 533; Lewis v. Niles, 1 Root’s R. 346; 2 Stark. Ev. 469; Jackson v. Stetson, 15 Mass. R. 57.
Although the general rule deducible from these and other kindred cases, has been recognized and admitted, yet it has been much modified in its application to individual cases. And, although, as before stated, courts have differed in opinion as to what facts and circumstances may be given in evidence to mitigate the damages, the truth of the charge, or facts which tend to prove its truth, or particular instances of criminality, are inadmissible for that purpose.
Under the application of this rule, the testimony offered
3. Again, it is insisted that the Court below erred in permitting the defendant, Bowers, to prove that the plaintiff said of him that he had swoim falsely down at Barrett’s ; there being no such charge in the declaration.
The decisions on this point, too, have been somewhat variant and contradictory. In Bodwell v. Swan, 3 Pick. R. 378, Barker, C. J. says, “ it is a difficult question.” In Mead v. Daubigny, Peake’s Cases, 125, the declaration stated conversations with one particular person, and evidence was offered of words spoken to another person. Lord Kenyon admitted the evidence to show the state of the defendant’s mind, and malice towards the plaintiff, saying, “in actions for words, he had always understood the plaintiff might give evidence of any words used by the defendant, to show the spirit and temper by which he was actuated but added that he was clearly of opinion that evidence of words actionable in themselves was not admissible. In the case of Lee v. Huson, tried in the year following, the same judge decided, on similar evidence being offered, that, in actions for words, it was the practice to admit the evidence of other words besides those charged in the declaration, though they contained matter which was ground of another action. Lord Ellenborough held, that any words might be given in evidence, as well as any act of the defendant, to show quo a-rtimo he spoke the words which are the subject of the action. 1 Camp. R. 49. In Wallace v. Mease, 3 Binn. R. 550, this question was very fully discussed, and Chief Justice Tilghman expressed strong doubts of the propriety of such evidence, but said he must assume it as a principle that subsequent words may be given in evidence; and that he could see no reason for a distinction between words actionable and not actionable, or between words spoken before suit brought,
The principle to be extracted from the current of the cases, seems to be, that in an action for slander, the plaintiff, after having proved the words alledged in the declaration, may give in evidence the uttering by the defendant of other slanderous words, of similar import to those charged, with a view to show the malice of the defendant. The decision of the court below falls wdthin the principle stated, and was not, therefore, erroneous.
Upon the whole, we are of opinion that there is no error in the record and proceedings of the Circuit Court, and the judgment must, therefore, be affirmed with damages and costs.
Judgment affirmed.