
    
      Dr. John C. Jeter vs. Dr. William N. Askew.
    
    1. Where, on the trial of an action of slander, the plaintiff waived his ob. jections to the declarations of a person who was not produced, brought out by the defendant in the examination of plaintiff’s witness by way of mitigating damages, the declarations being unfavorable to plaintiff’s character, and made before the actionable words were spoken, the plaintiff in reply may produce proof as to the declarations of the same person made at any time, Even conceding the declarations brought out by defendant to have been in* admissible, it did not affect plaintiff’s right in reply', The fact that the wit* ness was present in Court whose declarations were received, did not affect the question. The admissibility of hearsay evidence is not controlled by the presence or absence of a witness within the process and jurisdiction of the Court,
    2. If one offers the declarations of a witness instead of producing him, proof of other declarations of the same witness may be offered by the other party, either by cross examination or by witnesses,
    
      Before Butler, J. Union, Spring Term, 1844,
    Action on the case for words.
    1st. The defendant said of plaintiff, he is a darn’d rascal, and has been trading with negroes. 2nd. That he had raised $5 notes to $15. 3rd. That he builds his $huck pens with a false floor under them, and under théffi he had cellars dug, in which he concealed bales of cotton, and after the fuss was over, would cut out the heads and brand them in his own name.
    A Mr. Hamilton, examined by the plaintiff, proved that in 1842 he heard defendant speaking of the plaintiff; that he said defendant had been trading with negroes, and he would shew this to the grand jury ; that he had a false floor under his shuck pen, and under it a pit sufficient to conceal three bales of picked cotton, that when he wished to put in cotton, he would lever up the pen, take out shucks and put in cotton; that he would prove it on him. Also that he had raised $5 notes to $15 and passed them to people who could not read. These charges were made during court week, and at that time defendant had indicted plaintiff for trading with negroes, but no bill had then been found. This witness on his cross examination said defendant gave no one as his author for what he had said. The witness had not heard of the charges himself, but once heard one Vessels say he had an account at plaintiff’s, had given a note for $5, and when it was paid, or to be paid, it was $15; defendant not a rich man, but had some property. In reply this witness said he knew the hand writing of Vessels, the signature to it was in Vessels’s hand writing and for $15, but the body of it was in the hand writing of one Kingley. Mr. Thomas, next examined, said in 1842, during fall court, and on the first or second day of court, he had heard defendant say plaintiff had made part of his property by trading with negroes; that plaintiff concealed cotton bales in his shuck pen, the heads taken out and again branded in plaintiff’s name, but did not recollect that defendant said anything about raising notes. Witness had been long acquainted with plaintiff and thought his character good'; heard of the report about cotton in 1837 from one Brock, whom he did not consider a man of truth. This witness, on his cross examination, said Brock had lived with plaintiff; that Brock said he had known plaintiff to conceal cotton in his shuck pen, that be would cut out and rehead the bales ; witness heard this in 1837; heard others speaking of book accounts, and that there was neighbourhood talk that plaintiff had traded.with negroes. One Fant examined, said he had heard Vessels say in going to trial he owed plaintiff $5 and was sued for $15, but that on his return he said he had found every thing correct. Witness had known plaintiff twenty-five years, his character good. The conversation with Vessels was six or seven years ago. What Vessels andBrock had said was before the words were spoken by defendant.
    Here the evidence closed on the part of the plaintiff; and the defendant declining to offer any evidence in his defence, the case, after argument, was submitted to the jury.
    There was no objection made by either side, as to what Vessels and Brock had said before the words were spoken by the defendant — the plaintiff’s counsel avowing it to be their wish to trace these reports to their origin.
    It seemed to be admitted that some unfavorable reports as to plaintiff’s reputation were in circulation ; and it was probable they had originated, in some measure, from what Brock and Vessels had said in relation to the note and cotton matter. The defendant attempted to excuse himself, by way of mitigating the damages, under these reports; and as far as they could affect his motives, before the words were spoken, the statements of Brock and Vessels were allowed to come out in evidence, without opposition from either side. But when it was proposed by the plaintiff to ask witnesses on the stand, whether they had not heard Brock say, after the commencement of the action, that he had been mistaken, or was wrong in what he had said of plaintiff, it was objected to on the part of defendant, and the objection was sustained by the court, on the ground that these subsequent explanations could have had no influence on the motives or conduct of the defendant in speaking the words, and upon the further ground that as Brock was in court he could have been examined himself.
    Mr. Henry, in his argument to the jury, on the part of defendant, suggested that if defendant had only said of plaintiff that he had been guilty of trading with negroes, the words would not have been actionable. In noticing this suggestion, the presiding Judge remarked, that to charge one with illicitly trading with slaves in this State, wrould be actionable, as it would imply the imputation of an infamous offence, in public estimation. But that there were other Words so clearly actionable proved against the defendant, that the jury were at liberty to find a Verdict for the plaintiff, independently of such words.
    In speaking of the question of damages; the jury were told they must look to the actual circumstances under which the words were spoken ; and that the defendant had a right to avail himself of all of them, to reduce the damages ; and in this connection, the court perhaps advert* ed to the fact that the Words were spoken in a passion ¡ and upon one occasion. But did not undertake to say, that in alluding to one occasion, it was the only one. All that the court said was rather by way of summing up the grounds of excuse that had been made for defendant, with* out any attempt to control the jury as to the view which they were at liberty to take of the whole matter.
    The jury returned a verdict of $40 for the plaintiff.
    The plaintiff' appealed, and moved the Court of Ap* peals for a new trial, on the following grounds :
    L Because the court admitted in evidence the declara* tions of Wm. Brock and John Vessels, as to particular facts, when they were present in court, and might have been called.
    2. Because the court rejected the evidence offered by the plaintiff to shew that Wm. Brock, on whose report the defendant now pretends he spoke the words, had ad* mitted he never had known any thing against the plaintiff, and denying he had charged the plaintiff, as alleged by the defendant, on the ground those admissions or declarations of Wm. Brock were made since the speaking of the words by defendant.
    3. Because the court, under the plea of the general is* sue, permitted the defendant to prove what particular per* sons had said as to specifiec charges, without proving that the report, as to those facts, was common, and generally believed in the neighborhood.
    4. Because his Honor charged the jury that if the defend* ant spoke the words “bona fide” believing them to be true, he was excused, though the words were clearly proven to have been spoken as affirming plaintiff’s guilt, without any reference to reports, or without any allusion to defendant’s author.
    
      5. Because his Honor did not instruct the jury with sufficient certainty and precision on the question whether it was a legal slander in this State to charge a man with trading with a slave, although he did intimate his opinion that it Was slander.
    6. Because his Honor charged the jury, that the words were spoken but once, when the plaintiff submits that it will appear from the notes of the evidence they Were spoken more than once, and with great malice.
    7. Because words were clearly and fully proved, under circumstances of great aggravation, and that the plaintiff Was a man of good character, ancl the manner of the defence was a repetition of the slander, and the charges were made with settled malice, and the verdict being for only forty dollars, was wholly inadequate to the injury sustained.
    8. Because the verdict is contrary to law and evidence, and charge of the court, and ought to be set aside.
    
      Thompson and Bowers, for the motion.
    
      Dawkins, contra.
   Curia, per

Fíiost, J.

The objections presented in the 1st and 3d grounds were proper to the trial of the case and were then waived by the plaintiff’s attorney; and all the others except the 2d. are obviated by the report. The 2d ground is because the Judge rejected the declarations of Brock offered by the plaintiff in reply to proof of such declarations offered by the defendant It appears that reports unfavorable to the plaintiff’s reputation, connected with the charge of having concealed cotton in his shuck house, were in circulation, which probably originated with Brock. The declarations of Brock, offered by the plaintiff, were excluded, on the ground that they were mad^ after the commencement of the action, and could have had no influence on the motives or conduct of the defendant, in speaking the slanderous words, and Were therefore immaterial; and upon the further ground, that Brock was present in court, and might have been examined. In the reason first assigned it is assumed that the declarations of Brock were material to the defence, in mitigation of damages, only by shewing ground for suspicion, by the defendant, that the plaintiff had been guilty of the act charged in the slander; and thereby exempting him from the aggravation of having originated the calumny. In this view the reason assigned was conclusive. But the declarations of Brock, as connected with the reports against the plaintiffj were also material to the defendant, and to the plaintiff, by affecting the plaintiff’s character, and by shewing he was not above suspicion. In Buford vs. McCluny, N. and McC. 268, it was decided that any facts or circumstances tending to shew probable ground of suspicion that the plaintiff in an action of slander had been guilty of the act imputed to him by the defendant, are admissible to mitigate damages, by detracting from the plaintiff’s character. Brock’s declarations, therefore, made at any time, were material to the issue, either by confirming, contradicting or qualifying his former declaration, and it was competent for the plaintiff in reply to counteract the effect of them, as brought out by the defendant.

But it is argued that Brock’s declarations were inadmissible, and could have been offered by the defendant only by plaintiff’s waiving the objection ; and because plaintiff admitted improper evidence, by consent, he cannot claim to offer improper evidence. It may be conceded that the general proposition is true, and that Brock’s declarations were not admissible, and the concession will not vary this case, in which the question is confined to the right of either party to offer evidence in reply, which is material to the issue, and tends to counteract the effect of evidence offered by the other party. If one admits, without objection, an incompetent witness to be examined by the other party, he is not precluded from cross-examining the witness and contradicting his proof by other witnesses. If the contents of a written instrument are given in evidence by one party, interested in it, without producing the instrument, he cannot exclude evidence in reply, on the ground that the instrument is not produced. And so if one offers the declarations of a witness, instead of producing him, proof of other declarations of the same witness may be offered by the other party, either by cross-examination or by witnesses. The defendant had the benefit of Brock’s declarations, affecting the plaintiff’s character, and justice requires that the whole extent and effect of such declarations should appear. When the plaintiff waived the objection to Brock’s declarations, offered by the defendant, they were subject to reply in evidence, in the same manner as if legally admissible, and the plaintiff should have been permitted to produce proof of his declarations made at any time. That Brock was present in court cannot affect the question. The admissibility of hearsay evidence is not controlled by the presence or absence of a witness within the process and jurisdiction of the court. On the 2d ground the court is constrained to grant a new trial, though it is not perceived that Brock’s declarations would have varied the result of the case, which was fairly and fully submitted to the jury. Motion granted.

O’Neall, Evans and Wardlaw, JJ. concurred.

Judge Richardson absent from indisposition.  