
    M’Alexander v. Harris.
    Decided, Jan. 19th, 1820.
    1. Slander — Mitigation of Damages — Circumstances of Suspicion. — in an action for words, proof of circumstances of suspicion, not amounting to full justification, is not admissible, in mitigation of damages, on the plea of not guilty.
    2. Same — Evidence—Parol Declarations of Defendant.  —Proof of parol declarations by the defendant, after the institution of the suit for slander, that he did not mean to charge the plaintiff with the crime alledged by the slanderous words, or that the words were spoken in heat of passion, is not admissible in his favour.
    3. Same — Same—Character of Plaintiff. — The defendant in the action of slander, is not to be permitted to prove the general character of the plaintiff as an insulting, provoking and quarrelsome man; nor that, before the speaking of the slanderous words, the plaintiff was in the habit of vilifying, insulting and provoking, him and his family.
    This was an action of slander by the ap-pellee against the appellant in the Superior Court of Nelson County; the words charged being, that “the plaintiff was a rogue, and had stolen the defendant’s sheep.”
    At the trial, on the plea of not guilty, the plaintiff, having proved the substance of the words imputed to the defendant as slanderous, the defendant moved the Court to *be permitted to prove certain facts and circumstances, not as amounting to actual proof of the plaintiff’s guilt, or a complete justification of the defendant, but as shewing a probable ground of suspicion, in mitigation of damages. He also moved the Court to be permitted to prove, in mitigation of damages, by Richard Burch one of the plaintiff’s witnesses, that, at a subsequent time, after the speaking of the words, and after this suit was brought, the defendant, in another conversation on the same subject, had expressed his concern, to the said witness, for what he had said; stating that the words had escaped him in heat of passion, and would not have been spoken by him in a composed and deliberate state of mind, and that he did not mean to charge the plaintiff with having stolen his sheep and altered the marks. It appearing to the Court that this suit was brought on the day of speaking the words proved by the witness Burch, the defendant then moved the Court to be permitted to prove, by other respectable witnesses, that, after the bringing of the suit, he had, publickly and at various times, asserted that he did not mean to charge the plaintiff with having actually stolen his sheep, and explained himself by stating the circumstances aforesaid ; and that the defendant had further said, after the bringing of the suit, that at any time when he had charged the plaintiff with stealing sheep and altering the mark, he was excited to heat and passion by the insults and provocations of the plaintiff. — This evidence the defendant also offered, to go to the Jury, as another circumstance in mitigation of damages. He also moved the Court to be permitted to prove the general character of the plaintiff, as an insulting, provoking and quarrelsome man; and that, before the speaking of the words imputed to the defendant, the plaintiff was in the habit of vilifying, insulting and provoking the defendant and his family. But the Court, was of opinion that all the said evidence was inadmissible ; whereupon, he filed a bill of exceptions, and, a verdict being found, and judgment rendered, against him, appealed to this Court.
    *Beigh for the appellant,
    submitted the question whether circumstances of suspicion, not amounting to justification, be not admissible in mitigation of damages; referring to Mr. Wickham’s argument in the case of Cheatwood v. Mayo, 5 Munf. 16, and Knobell v. Fuller there cited.
    Proof that the words were uttered in heat of passion, and afterwards retracted, is clearly admissible by way of mitigation. In Snellger v. Shelly, 2 Esp. N. P. 520, repetition of the slander, proving the defendant’s ill-will towards the plaintiff, may be given in evidence by way of aggravation. Ex Consequent!, therefore, the defendant may give retraction in evidence, by way of mitigation.
    Nicholas contra.
    The defendant pleaded not guilty; yet offered in evidence a long string of circumstances tending to fix the imputation on the plaintiff. Such a proceeding is altogether inadmissible : — -it is not only against policy and justice, but would injure the plaintiff by entrapping him; for, if the defendant had any facts to justify him, he ought to plead them, in order to apprise the plaintiff of the nature of the evidence intended to be offered. Whether the circumstances, tending to prove the guilt of the plaintiff, are strong, or weak, makes no difference. It would be a strange rule that weak evidence should be admitted, and strong excluded.
    In Cheatwood v. Mayo, my friend Mr. Leigh argued this case very ably, and shewed that the authority of Knobell v. Fuller was overruled. The point has been solemnly decided in England,  It was decided in Cheatwood v. Mayo, for this Court affirmed the Judgment, which could not have been done without deciding that the evidence offered by the defendant was inadmissible. That case and this are perfectly analogous.
    The other evidence offered is equally liable to objection. It was proposed to prove declarations by the defendant after the suit had been brought. Such declarations are not admissible in his own favour. The only safe rule is, that declarations made at the time of speaking the slanderous words, may be proved; for they are "'part of the fact, and essential to the understanding of it; but it would be a novel and dangerous principle to allow declarations, at a different time, especially, after the institution of the suit, to be given in evidence. If this could be done, a man, after slandering another, might, in every case, protect himself from punishment, by his own pretended declarations of the absence of malignant motive. He calls the plaintiff a rogue, and then wants to say he did not mean to impute to him any blame. If he said so, believing him innocent, he was more criminal than if he had said it thinking him guilty, though in fact there was no foundation for the charge.
    Perhaps, where the plaintiff actually goes into circumstances of aggravation, the defendant may prove declarations at other times in mitigation : — but it does not follow that the latter may be done in every case, because the plaintiff might prove circumstances of aggravation, though he does not attempt it.
    The defendant moreover wished to prove the plaintiff a quarrelsome man, &c. This also was improper: — 1st, because it was calculated to ensnare the plaintiff, by introducing an inquiry not involved in the issue joined: — 2dly, because such a course leads to mischievous investigations, and embraces the whole conduct of the parties to each other for years. Nor is the plaintiff’s being quarrelsome and insulting, any justification of the defendant for charging him with a specific crime of which he was not guilty. And, as to the plaintiff’s vilifying him and his family, the law was open to him for redress. He had no right to set off one slander, by another, imputing possibly a more atrocious crime. It would be productive of the worst consequences to allow such a latitude of evidence. Every thing that happened at the time, is admissible: it is part of the res gestee: but the defendant can not go into the transactions of the whole lives of both parties, 
    
    Leigh in reply. In trespass for taking away a slave, may not the defendant acknowledge that he took him under a mistaken impression of his being his property, and return him? Would a Jury give the same vindictive ^damages, as if he still detained the slave? Why then should not the rule be similar in cases of slander? If an acknowledgment in writing be admissible in mitigation, why not proof of a verbal acknowledgment?
    Certainly, slander letracted, ought not to be punished as severely as slander persisted in.
    
      
       Slander — Hitlgation of Damages — Circumstances of Suspicion. — On this subject, see discussion in footnote to Cheatwood v. Mayo, B Munf. 16; and mono-graphic note on “Libel and Slander" appended to Bourland v. Eidson, 8 Gratt. 27. The principal case is cited on the subject in Mosely v. Moss, 6 Gratt. 542; Bourland v. Eidson, 8 Gratt. 40, 41, 43, 44.
    
    
      
       Same — Evidence—Parol Declarations of Defendant. —The principal case is cited in Dillard v. Collins, 25 Gratt. 356.
    
    
      
       Philips on Evidence, 201.
    
    
      
       Bull, N. P. 9, & 298; Philips on ■Evidence. 139; Willes, 24, Smith v. Richardson; 12 Viner 159. pi. 16, Dennis v. Pawling; 2 Str. 1200, underwood v. Parks.
    
   By the Court,

the Judgmentwas affirmed.  