
    Schwartz v. Thomas.
    October Term, 1795.
    [1 Am. Dec. 479.]
    Slander— Proof of Circulation. — -A letter stating that the writer hart heard of a slanderous report, is good, evidence to prove the circulation of the report, and. may he read for that purpose, the handwriting of the person being proved. But it would be inadmissible to prove that the defendant had propagated the report.
    This was an action of slander brought in the District Court of Petersburg by the defendant in error. The parties executed mutual bonds with a condition to abide by the award of eight arbitrators, indifferently chosen by the parties, to determine all disputes between them for slanderous words spoken by the said Schwartz of the said Thomas, and to ascertain the damages which the latter had sustained or might sustain for certain slanderous words spoken of him by the former, for which a suit was then depending in the Petersburg court. And it was further agreed, that each arbitrator should, without consulting the others, state on a piece of paper the sum which he supposed should be allowed, and the aggregate amount being divided by the number of arbitrators, that the quotient should be the sum for which they were to render their award; this to be done in *writing on or befóte the 8th day of August following, at Notoway courthouse; the said Schwartz to pay the costs of the said suit; if any damages should be awarded against him. That the indictment filed by the said Schwartz against the said Thomas should be no farther prosecuted, but the said arbitrators to determine in the same manner, as if the court and jury of the said District Court had determined the damages for the benefit of the commonwealth, the said arbitrators being requested to state in their award, the damages, if they should think any ought to be for the benefit of said Schwartz with costs, if any damages against the said Thomas on account of the indictment. Upon the bond there is a memorandum endorsed, that if any of the arbitrators should not meet, an award might be made by any number exceeding four. By a rule of court afterwards made, the parties agreed to submit all matters in difference in this suit to the determination of the above mentioned arbitrators, and that their award, or the award of any five of them should be made the judgment of the court, provided they should proceed to make the same, on or before the 8th day of August thence following, in the manner pointed out in the arbitration bonds reciprocally given by the parties. And it was further agreed, that the said arbitrators might proceed to make there award ex parte, if either party after 10 days notice of the time and place appointed for that purpose should fail to attend.
    The arbitrators returned their award, in which, after reciting the order of court, and that in pursuance thereof they did meet, and in the presence of the parties examined the witnesses and other testimony there produced, and that they had proceeded in conformity with the said order, and in the manner pointed out by the said arbitration bonds, they awarded the defendant to pay £55 damages to the plaintiff, with his legal costs expended in prosecuting this suit. Judgment was entered according to the award.
    The defendant having objected to the award before judgment was entered up, and being over-ruled by the court tendered a bill of exceptions which was sealed, stating “that the arbitrators admitted as evidence, a letter said to be written by one Joseph White in North Carolina, and directed to F. White, who swore before them, that he believed the said letter to be the hand writing of the said Joseph White, (but there was no evidence that the said Joseph White had ever sworn to the truth .of the contents of the letter, nor was he present,) which letter induced some of the arbitrators to award greater damages than they . '*otherwise would have done, and the defendant produced an affidavit of one of the arbitrators to this effect: That it appeared by the affidavits of two of the arbitrators, that the said F. White was sworn as a witness, and deposed, that he believed the plaintiff had been injured by the slanderous report circulated by the defendant, and as a ground for such belief produced the letter in question, in which the said report was mentioned.
    The cause came up to this court upon a writ of supersedeas.
    Stark for the plaintiff in error.
    Although arbitrators are judges of the parties own chusing, they are nevertheless bound by the rule of law, and if it appear from the record, that the}' have decided contrary to those rules, the award may be set aside, more especially where the reference was made by rule of court. The letter of White was improperly admitted as evidence, and would have been so decided if it had been offered as testimony in court, since the truth of the contents of the letter, ought to have been proved by legal evidence, as all other facts must be.
    Another question may perhaps arise in the cause. The rule of court refers t all matters in dispute in this suit, and Rhe bonds are of all matters in difference. The power of the arbitrators therefore is extended beyond the rule of court, which confines them to disputes in that particular suit. I should entertain no doubt myself respecting this objection, if the arbitrators had appeared to have acted under the general power given by the bond. It has been decided in England, and was so decided in this court, in the case of Shermer and Beale, (ante vol. 1, p. 11) that the parties could not by consent extend the time for making the award, or change the rule of court in any manner.
    Wickham for the defendant.
    The decision in the case of Shermer and Beale, was the very reverse of what Mr. Stark supposes. In that case, the time for returning the award was extended from the 1st to the 20th of June.
    I admit that if arbitrators make a plain mistake in fact, or in law, the award may be set aside. But this court determined in the case of Pleasants, Shore &c. v. Ross, (ante vol. 1, p. 156,) that those mistakes must appear upon the face of the award, and that affidavits could only be relied upon to prove misconduct in the arbitrators. And even if the mistake appear upon the face of the award, it must be a clear and gross one to induce the court to set it aside, 3 Atk. 462. But I contend, that the arbitrators did right in hearing the testimony excepted to. This letter was not introduced to prove the fact that the slanderous words had been spoken, but that the report had been spread. *The witness thought the defendant had been injured by the speaking of those words, because the letter proved that the slander had circulated. If hearsay evidence can be admitted in any case, it surely ought in a case of this sort. A witness may certainly prove that he has heard the report circulating in á neighbour-hood, tho’ the persons from whom he heard it were not upon oath at the time they mentioned it.
    Stark in reply.
    I admit the witness might have proved as a fact within his own knowledge, that the report was spread, but it was improper for him to prove what a third person had written respecting the existence of the report. Suppose the writer had made an ex parte affidavit of his having heard the report; could this have been read in evidence? And if it could not, surely his letter unattended with this so-lemnitj' ought not to have been read. If he had been present and cross examined before the arbitrators, he might with propriety have given evidence respecting the circulation of the report.
    
      
      See monographic note on “Libel and Slander” appended to Bonrland v. Ifiidson, 8 Graft. 27.
    
   EOANE, J.

-This was an action of slander, and issue was joined upon the plea of not guilty. After an ineffectual effort to obtain the verdict of a jury who could not agree, the cause was by mutual consent referred to eight arbitrators, seven of whom returned an award in favor of the defendant in error. The plaintiff tendered a bill of exceptions to the opinion of the court, over-ruling a motion to set aside the award, which states, that the arbitrators admitted as evidence, a letter, written by Joseph White in North Carolina to F. White, a witness sworn before them; and that the defendant also produced in court the affidavit of F. Fitzgerald one of the arbitrators, stating, that the said letter so admitted, induced some of the referees to give greater damages than they would otherwise have done; but that the motion was over-ruled, because it appeared from the affidavits of two of the referees made in open court, that the said F. White was sworn as a witness before them, and being asked, whether he believed the plaintiff Thomas had been injured by the slanderous report, circulated by the defendant, answered; yes, he believed he had been injured : and being further asked, what ground he had for such belief, he produced the letter above stated, in which the said report was spoken of, and declared he believed it to have been written by the said Joseph White. Such is the purport of the bill of exceptions, and the objection is, that the arbitrators ought not to have admitted this letter to have been read.

*After proving the speaking of the slanderous words in an action of this sort, the next enquiry is, whether the plaintiff has been injured, and what is the extent of that injury. This depends in a .great degree upon the circulation of the report, by which the character of the party aspersed may suffer in the estimation of those who have heard the slander. The onlj' purpose for which the letter mentioned in 'the bill of exceptions -was produced, was to prove that the report had circulated, and was known to the writer; the letter was not intended to prove that the defendant propag-ated the report, nor was it competent 'to establish that fact. If the letter had not only stated that the report was known to the writer, but had also averred that the plaintiff had propagated the report; such averment would have been inadmissible to prove this latter fact, and if the plaintiff had stated such to have been its purport in the bill of exceptions, it would have made his case very different from what it now is. But I must take it for granted upon this record, that the letter only spoke of the report as being known in North Carolina, and that it was merely produced to prove that it had circulated. The question then is, whether it was proper evidence for such last mentioned purpose. That the report has circulated so as to come to the knowledge of the writer, is as clearly established by the letter itself, as if he had deposed to the same effect before the arbitrators, and no cross examination could possibly do away a conviction that he who spoke of the report, had heard it. But this letter was also proved to have been written by Joseph White; it was therefore competent evidence for the purpose for which it was produced, and the arbitrators did right in permitting it to be read.

I think the judgment ought to be affirmed,

EEEMING, J.

It is true, that arbitrators ought to be governed by the same rules of evidence which prevail in courts of justice. The question then is, ought this letter to have been read in evidence if the cause had been tried in court. I am of opinion it ought. I consider this case as furnishing one of the exceptions from the general rule. The hand writing of Mr. White was clearly proved, and the letter was as corn-pleat evidence of the fact for which it was produced, namely, that the report had been heard by the writer, as if he had been examined before the arbitrators, and had declared it upon oath. This case is very different from what it would have been, had the letter been produced to prove the speaking of the words, or the propagation of the report by the defendant. In the one case the party might have '"'derived benefit from the cross examination of the writer, in the present case it would have been impossible.

The PRESIDENT concurred in opinion.

Judgment affirmed.  