
    JEREMIAH F. KINNEY vs. JOHN HOSEA.
    In slander the charge of a crime implies malice.
    The truth of the slander cannot be proved under the general issue.
    The truth cannot be proved unless the defendant give notice by a plea justifying the slander, because it is true.
    
    A plea justifying the repetition of a slander because plaintiff had first said the same of himself, will not let in evidence tending to prove the charge.
    Under such a plea, defendant confined to declarations of plaintiff, before the speaking of the slander.
    What a witness swore at a former trial between the same parties, is evidence in case of his death. His precise words must be proved, or so much of them as bears on the matter in hand.
    This was an action for verbal slander, charging the plaintiff with burning the Pennsylvania hall. (See ante, p. 77.) The pleas were not guilty, and a special justification, that before the defendant spoke the words, the plaintiff asserted the same thing of himself in the presence of defendant and others, and the defendant believing the same repeated them without malice, &c. Issue was taken on both pleas.
    On motion, the witnesses on both sides were excluded from the room during the examination.
    Several witnesses were examined to prove the slander; and judge Harrington was now sworn to prove the testimony given on the former trial by Jonathan Waller, a witness since dead. He produced his notes of the former trial; said he 'could prove the very words used by Waller as to the charge made against Kinney, and the substance of his testimony on all other matters. Pie took down the testimony at the time, but not in short hand.
    This evidence was objected to, unless the judge could prove the whole testimony of the deceased witness, and every part of it precisely. (PM. Evid. 199.)
    
      Court. — What a witness swore on a former trial between the same parties is evidence, if he be dead. What he did swear must be pre-Icisely proved, even to his very words; but to say that all the words ¡which the deceased witness used in giving his testimony, and in every ¡part of his evidence whether material or not must be proved, would [make the rule so strait as effectually to exclude such testimony. No lone from memory, and very few from notes taken at the time, could (testify to all the words usee] by the witness. This is an unreasonable strictness, and defeats the rule which was established from ne-icessity. In many cases, especially in indictments for perjury, it would prevent the possibility of a conviction. We think a reasonable limitation of the rule to be, that proof may be made of any part of a deceased witnesses testimony, so that the evidence is strictly the same that the witness gave, and that all which relates to that matter, either to extend, qualify or explain that particular part of the evidence must also be given. For instance, on a trial for perjury a witness may prove that the defendant swore thus or so as to any particular fact, without being able to prove every thing else which the defendant testified.
    The law of Pennsylvania, exemplified under the great seal and the signature of the Governor, was offered in evidence and objected to, on the ground that there was no sufficient averment in the narr. that the law was in existence at the time of the alledged burning of this house, or at the time of making the charge. The objection was argued at length, and the court reserved the question for hearing in bank. (See post, June term, 1842.)
    The defence relied on was — 1st. That the plaintiff’s witnesses were mistaken; and Hosea used no such language. 2d. That Kinney said the words himself, being the hero of his own story; and 3d. That Hosca had a right to report what he heard Kinney say of himself, so that he did it without malice. The testimony on the point whether Kinney had boasted of burning this house before the defendant asserted that he did it, was very conflicting. The defendant offered to prove the declarations of plaintiff, made subsequent to the speaking of the slander, that he had helped to burn the hall. This was objected to and the evidence ruled out.
    
      Court. — The issues are not guilty and a special justification, not on the truth of the words, but because before Hosea spoke the words Kinney said the same thing of himself. It is rather a plea in excuse than a justification. Now the tendency of subsequent declarations is not to prove previous ones, but to prove the truth of the charge, which you cannot do without a justification on the truth. And even! if the tendency is to prove that he had said so before, they also prove the truth of the charge which is inadmissible. You could not proveí the fact that Kinney had burnt the hall, in support of these issues;1 nor can you prove that he said he did so, subsequently to the slan-l der. If there is any doubt as to the time of the declarations, the jury must, judge. (1 Ch. PI. 489; 13 Johns. Rep. 475; 2 Stark Ev. 408 70; 3 Conn. Rep. 436; 1 Harr. Rep. 503.) You can no more prov the truth of the charge under these special pleas, than under the ge-| iiefal issue. The plaintiff has no more notice of such proof by these pleas than by a plea of not guilty, 
    
    
      The ease Was argued very fully on both sides; and judge Harrington charged the jury.
    
      
      
         The rules of evidence in the action of slander are very confused, and the adjudged cases cannot- be reconciled. The English cases are conflicting; the American still more so; and in some of the States the legislature has interposed its authority, and prescribed rules of evidence different from the judgment of the courts.
      1st. As to justification. Evidence of the truth of the specific charge cannot be admitted unless pleaded, either in bar or in mitigation of damages. (Underwood vs. Parke, Strange 1200; Mullet vs. Hulton, 4 Esp. Rep. 248; 1 Chit. Plead. 489.) .Neither can facts tending to prove the truth of the charge be admitted. (Idem.) So adjudged in New York, Sheppard vs. Merrill, 18 Johns. Rep. 477; Virginia, McAlexander vs. Harris, 6 Munf. 465; Cheatwood vs. Mayo, 5 ib. 16; Connecticut, Bailey vs. Hyde, 8 Conn. Rep. 463; Massachusetts, Alderman vs. French, 1 Pick. Rep. 1; Kentucky, Williams vs. Greenwade and wife, 3 Dana Rep. 433; Delaware, Wagstaff vs. Ashton, 1 Harr. Rep. 503; 3 ib. 373, Parke vs. Blackiston. Secus in South Carolina, Buford vs. M‘Luny, 1 Nott & M‘Cord 268; Pennsylvania, Williams vs. Mayer et al., 1 Binney 92, n.
      
      But the defendant may, under the general issue, prove in mitigation of damages that plaintiff was generally suspected of the offence. (2 Stark. Ev. 469; 2 Camp. 251; 1 Mau. & Sel. 284; 2 Esp. Ca. 720; Holt, 807, 584. Secus in Connecticut, (1 Root. 346; 4 Conn. Rep. 408;) and Massachusetts, 1 Pick. 1, 18; 6 Mass. Rep. 518.)
      I 2d. As to character. General evidence of plaintiff’s bad character is admissible, not to prove the charge, but with a view to the damages. And this although the defendant \ms justified. (2 Stark. Ev. 470; 2 Camp. 251, Esc.) So adjudged in N. York, 1 Johns. 45; 2 Cowen 811; Pennsylvania, Whart. Dig. 251; Connecticut, 1 Root 354, 459; 2 ib. 149; North Carolina, 2 Hayw. 222; South Carolina, 1 Nott & M‘Cord 268; 2 ib. 511; Massachusetts, 3 Mass. Rep. 546; 6 ib. 514; 14 ib. 275; Kentucky, 3 Dana’s Rep. 432; Delaware, 2 Harr. Rep. 446.) Sed contra 11 Price Ex. Rep. 235, Jones vs. Stevens, where the English cases are all reviewed, and lie law there settled. In Vermont also this evidence is rejected, 2 Tyler’s Rep. 74. And see as to Connecticut, 4 Conn. Rep. 18; and see also 6 Mass. Rep. 518; 1 Pick. 18.
      I The plaintiff cannot give evidence of his general good character, either 1) disprove the charge or enhance the damages, unless his character is first Ittacked by the defendant’s testimony. (2 Stark. Ev. 216-17; 21 Eng. It. L. Rep. 446; (1 Ry. & M. 305;) 1 Camp. Rep. 460; 3 Penn. Rep. 49; Mason 505; 2 Wend. 352; 3 Harr. Rep. 373; Parke vs. Blackiston.) 
        Contra, 2 Stark. Ev. 216, 471;. 5 Esp. Cases 13; 1 Ry. & 31. 305; Dana’s (Kentucky) Rep. 432; Whart. Dig. 251.)
      3d. Evidence in mitigation of damages, or in aggravation. 1st. Undeil the general issue nothing is admissible in mitigation which can be pleaded in justification of the slander. (1 Chit. Pl. 489; 13 Johns. Rep. 475; Stark. Ev. 468.) It seems that this equally excludes matter tending td prove a justification. (2 Stark. Ev. 470; 3 Conn. Rep. 436; 1 Harr. Rep. 503, Wagstaff vs. Ashton.) Subject to this exception any facts tendí ing to disprove malice or to mitigate the damages may be given in evidence! as that the words were spoken in passion; through mistake, &c. (3 Mass. Rep. 546.) In the course of a judicial proceeding, or in confidence, &c (15 Ib. 48.) Words spoken on any fair and honest occasion, without mal lice. (2 Stark. Ev. 468.) That plaintiff labored under a general suspicion of the charge. (lb. 469.) General evidence of plaintiff’s bad character! (Ib. 470.) And of plaintiff’s condition in life. (3 Mass. Rep. 546, 3 Harr. Rep. 373.)
      The plaintiff may prove in aggravation of damages any facts tending t| show actual malice; as the repetition of the slander, or other slandera" (2 Stark. Ev. 465.) Plaintiff’s condition in life; but not his character, urj less attacked. (3 Mass. Rep. 546; Ante 373.) 2d. under a plea of justificrT tion on the truth of the words. Qu. — Is the plea ofjustification, if the plait! tiff fails to establish it, in itself evidence that the words were spoken malm ciously? (15 Mass. Rep. 48; 1 Pick. Rep. 17; 1 Chitty Plead. 489; [ Harr. Rep. 373.) Facts tending to mitigate damages may be given evidence on the general issue, which cannot when there is a justificatid pleaded; as that the words were spoken in passion; through mistake, &c| and with no intention to injure plaintiff. (3 Mass. Rep. 546.)
    
   Harrington, Justice:

Wherever a man charges another with a punishable crime or infectious disorder, or says that of him which may tend to injure him in his office, trade or business, or any thing that may produce other special damage, it is actionable. The charge of a crime implies legal malice, and subjects the slanderer to damages, though nothing more appear than the speaking of the words; but if in addition to this, it be shown that such a charge was made from a special malicious motive, the jury are permitted on the principles of this action, to punish him by exemplary or vindictive dama ges. Beyond this, however, the law does not go. “Words of gene-| ral abuse, however opprobrious and however vexatious, do not for; the subject of an action of slander, unless they bring the party charged in danger of criminal punishment, exclude him from society, deprive him of his office, or of the profits of his trade or occupation, or actually do him other special damage.” (2 Harr. Rep. 423.)

The plaintiff’s declaration in this case sets out words actionable in se. They imputo a crime which would render the person charged liable to prosecution and punishment criminally, and this not only Drejudices his character, but endangers his liberty; no one has a right to make such a-charge, unless he can prove it to be true, or give other lawful excuse for making it. In this case the defendant has not attempted to prove that Kinney burnt the house or had any hand n it; if therefore, he was not excused by the circumstances under which he made the charge, he is liable in this action. And if he was actuated by actual or express malice, this would aggravate the ase, and make him liable to exemplary damages in the discretion of ‘he jury, by way of punishment for such an outrage, and as an ex-tmple to deter others. In proof or disproof of express malice, the ury are to take into consideration the circumstances under which ;he charge was made and followed up, if it was followed up, togeth-r with any other acts or charges made by the party, tending to show hat he was or was not actuated by ill-feeling and a malignant pur-ose in making the original charge.

The substance of the charge alledged in this case is, that Hosea puted to Kinney the offence of burning, or assisting to burn, the Pennsylvania hall. The defendant’s first plea is not guilty, which enies that he ever made the charge or uttered the words alledged the declaration. The other pleas in the cause assert, that before is uttering the charge or speaking the slanderous words imputed to ¡im, Kinney had publicly said the same thing of himself, and had in |ubstance stated that he had a hand in burning this hall, or “helped do it;” and that he the defendant, without malice, only repeated e same charge. On these pleas in excuse rather than in justifica-|on of the slander, the plaintiff has taken issue, and the jury will dge between them as to the truth of the matter, the defendant being und to make out by proof the facts under which he seeks to'ex-,se the slander. ,

We forbear to make any comment on the facts. The jury are e best judges of what the proof is, as well as of the credit which ght to be given to witnesses. But the disbelief of what any wit-ss has testified to, does not necessarily impute to him falsehood and rjury. This would compel the jury in every case of contradictory testimony to believe that one or the other witness, -or perhaps 'one set of witnesses or the other, must be wilfully perjured-. Nothing is further from the truth than such a conclusion. A thousand innocent mistakes are committed in courts of justice, for one intentional and corrupt falsehood; and it is the commonest duty of a jury to distinguish between conflicting testimony, arising from the mistakes of witnesses. The duty of the jury in all such cases of conflicting testimony, is to weigh the probabilities; to look at the opportunities of the witnesses -for knowing what they testify to; at the probabilities of their testimony itself; as well as to their-number, respectability of standing, extent of -capacity and every thing else connected with them, or with the subject matter of their evidence. And where the jury cannot reconcile the testimony of all the witnesses, they are bound to give credit to that which, under all the circumstances, comes to themj most strongly recommended by the impress of truth and probability, This is the nearest that human tribunals can approach to absolute| certainty; and we are all bound to regard that as the truth which, with the means we have of information and judgment, comes the nearest to the truth. On these principles, you must make up you minds whether the -defendant Hosea, originally charged Kinney witl a participation in burning the Pennsylvania halh or whether Kinneyi first stated the same thing of himself, and Hosea only innocently re-| peated it. If Plosea, without having first heard the plaintiff say b helped burn this hall, charged him with this crime, the verdict ougfr to be against him; but if he did first hear Kinney say that he burn this hall, or had a hand in it, and only repeated the same thing inno cently, and without malice, the verdict ought to be for him. If ir| either case he made this charge maliciously against the plaintiff, an-with a view to injure him, the verdict may be for damages by wa; of public example.

Ridgely and Houston, for plaintiff.

J. A. Bayard and Cullen, for defendant.

Verdict for the plaintiff; six cents damages.  