
    Roberts v. Miller.
    In an action for libel, where M. published that R. was a defaulter, a mortgage executed by R. to the United States, and the record of foreclosure, are admissible as evidence of R’s indebtedness to the government.
    Any action by Congress or the departments of government, subsequent to the libellous publication not admissible as rebutting evidence.
    
      Error to Henry District Court.
    
   Opinion ly

Kinsey, J.

Ibis was an action on tbe case to recover damages for tbe publication of a libel. Boberts in bis declaration sets out that Miller on the 30th day of July, 1844, published of, and concerning tbe plaintiff, tbe following false, malicious and defamatory matter, to wit: “"Witness, that B. S. Boberts at present tbe leader of tbe clique, a notorious public defaulter to a large amount, &c.”

Tbe defendant pleaded tbe general issue with special pleas. Tbe cause was tried in Henry county upon change of venue, and as the pleas were lost, tbe plaintiff agreed that tbe defendant might file tbe plea of general issue nunc pro tionc, and give in evidence anything which could have been specially pleaded. With this arrangement tbe parties went to trial. Tbe plaintiff gave in evidence to tbe jury tbe publication of tbe libel as described in the declaration.

Tbe defendant then offered in evidence: 1. A bill of complaint, filed on tbe j>art of tbe United States for tbe foreclosure of a deed of defeasance given by Boberts to tbe government.

2. Tbe deed of defeasance, whereby Boberts as late lieutenant in the army of the United States, and assistant commissary and acting assistant quarter master, mortgaged to the government certain “half breed lands,” on tbe 10th of April, 1839.

3. The answer of Boberts, which admitted tbe charges in tbe bill.

4. The transcript .of a decree in the district court of Lee county, by which it appears that a decree upon the mortgage for $4699,12, was rendered in favor of the govern> ment against Roberts, and that the equity of redemption to the mortgaged property was foreclosed.

The defendant also offered in evidence, a deed from Roberts to Akin and others, dated 5th May, 1837, (prior to the execution of the mortgage,) conveying to them the premises described in the mortgage to the government.

This evidence was allowed by the court to be read to the jury; whereupon the plaintiff filed his first bill of exceptions.

The plaintiff then offered in evidence, certain documents emanating from the departments at Washington, including letters from distinguished individuals, recommending to the President the restoration of Roberts to the army. Among them is a report from the judiciary committee of the Senate and House of Representatives dated in 1845, reporting a bill for the relief of Roberts, and also asking for his restoration to his former rank in the army, as an act of justice. This report of the committee, is based upon the fact that at the time the specie circular of 1836, went into operation, Roberts as a disbursing officer, had a large amount of bank notes in his possession, upon a bank which suspended specie payment, and therefore they were unavailable funds. The committee say upon a thorough examination of all the circumstances in the case, they came to the conclusion that Mr. Roberts had been guilty of no acts impeaching his honor and integrity as an officer, and that his official acts aimed at the good of the service, and the faithful application of the public funds in his hands, &c. This report is signed by the committee and concurred in by senators Walker and Dix.

The plaintiff also offered in evidence, a document from the treasury department, purporting to be a settlement of the account of Roberts as lieutenant, &c., during the years 1836-7-8 and 9, in which Roberts is charged with $424,82, and credited with a like sum. All of these documents, report, certificates, letters, &c., were offered conjointly and separately", but they were all excluded from the jury, which forms the basis for the plaintiff’s second bill of exceptions.

A verdict was rendered in favor of the defendant, and the plaintiff in error assigns the ruling of the court permitting the evidence to go to the jury as set out in his first bill of exceptions, and the exclusion of the' evidence offered by him in his second bill, for error.

We think the evidence offered by the defendant was properly admitted. By the latitude extended to him by the plaintiff, such evidence could not well be excluded from the consideration of the jury. Under a special plea, it would have been competent for the defendant to introduce evidence tending to show the defalcation, and thus justify the publication. The bill, answer, mortgage, and decree, were matters of public record, and these were at least prima facie evidence of the indebtedness to the government. They upon their face show that the indebtedness accr ued in a fiduciary capacity. The mortgage is given by Roberts as late lieutenant in the army, and assistant commissary and quarter master. The capacity in which Roberts stood indebted to the government fully appeared. This was notorious, it was of record, fully admitted and confessed by the answer of Roberts. The deed to Akin and others was proper evidence, as the indebtedness might be presumed to be secured by the mortgage. But this shows that the land was not liable to mortgage; Roberts having previously conveyed the same by deed to Akin; consequently at the time of the publication as appeared from the records taken together, Roberts in his official character still appeared to be a government debtor to, a large amount; therefore in this ruling of the court there is no error.

The plaintiff, as rebutting evidence, offered the report, letters and documents before referred to, none of' which we think could have been permitted to be read to the jury. The report of the judiciary committee bears date in 1845, subsequent to the elate of tbe mortgage, tbe decree and tbe publication of Miller. Miller relies as a justification upon tbe public records of tbe county showing tbe deficit, and any action that Congress may hare taken after the publication, could not be introduced as evidence to defeat a plea of justification predicated upon the record as showing a prior deficit or defalcation.

D. Borer, for plaintiff in error.

J. G. Hall and Geo. G. Dixon, for defendant.

The document purporting to have been a settlement, includes the years ’36-1-8 and 9. We cannot see how this can explain or rebut the presumption of defalcation, as made by Huberts’ own confession in 1844, and which at the time the alleged libellous matter was published, was a matter of evidence against Huberts upon the record. The other documentary evidence offered, referred to in tbe bill of exceptions, does not require comment. It is not necessary to adduce reasons in support of a decision, the correctness of which cannot well be questioned.

Judgment affirmed,  