
    Obadiah Dickinson versus David Barber.
    In an action for slander, where the defence is the insanity of the defendant, evi dence may be admitted to prove such insanity existing at the time of speaking the words, and for several months before and after, but no further.
    The depositions of physicians, declaring their opinions concerning such insanity, but stating no facts, as the ground of their opinions, are not admissible as evidence in the trial of such an action.
    This was an action of slander. The declaration states that on the 1st of September, 1806, the defendant said that the plaintiff had been criminally intimate with the defendant’s wife, and that he made similar declarations on the 30th of November, 1806, and on the 1st and 30th of March, 1808.
    The action was tried, April term, 1811, before Sedgwick J., when a verdict was found for the plaintiff, and his damages assessed at three hundred dollars.
    At the trial, the plaintiff having given evidence to prove the speaking of the words charged, the defendant, by his guardian thereto admitted, having given evidence tending to show that he, the said David, before and at the several times of speaking the words, was insane, his counsel offered evidence, by the testimony of divers witnesses, to show that the said David, ever since the speaking of said words, had been, and still was, delirious and insane ; to which the counsel for the plaintiff objected. The judge refused to admit any testimony to show that the said David had been insane since the summer next succeeding the time of speaking said words ; the last time of speaking having been in the month of March. The counsel for the defendant also offered the depositions of Medad Pomeroy and Charles Blake, two physicians, who testified that in their opinion the said David had been insane from the time of speaking said words; to the admission of which depositions the counsel for the plaintiff objected, and they were excluded by the judge. To these decisions of the judge the defendant’s counsel filed exceptions, and the same were allowed by the judge.
    *The cause was argued, at the last September term here, by Newcomb for the plaintiff, and Bliss and Ash-man for the defendant.
    
      Ashmun.
    
    Malice being necessary to be shown in support of this species of action, if the person charged is proved to be insane, the possibility of malice is excluded. There are so many different species, as well as degrees of insanity, that it is extremely difficult to define or describe the disease. From the equivocal nature and appearances of the disorder, the longer the time for which evidence is furnished the jury, the better judgment they must be able to form of the soundness of the defence assumed. The disease often exists for a long period, while the immediate symptoms are but occasionally apparent.
    While the evidence is limited to a short period before and after speaking the words, it may appear equivocal; the jury may think the appearance assumed ; whereas, if they had evidence of symptoms appearing for a long term of time, they might believe the distraction real. The longer the symptoms shall have been visible,'the less ground is there to believe them fraudulent and deceptive.
    
      Newcomb.
    
    It is the proper office of the judge to determine on the pertinency of evidence offered to the jury In this case, it is not probable, if the jury were not influenced by the testimony of the appearances of insanity within half a year from the time of speaking the words, as well as after, that they would be governed by evidence of similar appearances beyond that distance of time.
    The depositions of the physicians went only to their opinions of the state of the defendant’s mind, without stating any facts, as the ground of such opinions. Such evidence would not probably have influenced the jury in any degree; and if it could, it "ought not to have such an effect. The testimony given to the jury to establish the point assumed for the defence, was abundant to satisfy them, if the defence had been capable of being established.
    
      Bliss in reply.
    The depositions rejected at the trial were oí gentlemen of the faculty, both of whom had a personal * acquaintance with the defendant. The mere opinions of physicians are often received in evidence, when the facts from which those opinions are formed, are derived from "the testimony §f others. Thus they are often received to testify re specting the apparent effects of poisons upon the human body. So also men of science are received as witnesses, to testify in matters relating to the particular science they are masters of, without any knowledge of the facts immediately in question, and to which their testimony is to be applied. Cuiqve in sua arte credendum est. The evidence rejected had a natural and legitimate tendency, either wholly to exculpate the defendant, or to mitigate the damages ; and in either view he was entitled to the benefit of it.
    The action stood over to this term for advisement; and now,
   The Court

observed that the exceptions were to two decisions of the judge who presided in the trial of this cause. The first was, that he rejected evidence which would have gone to show symptoms of insanity after the summer, which succeeded the speaking the words charged. In this they held the conduct of the judge to be correct. Facts arising so long after could have little or no tendency to show the actual state of the defendant’s mind at the time he spoke the words : while they might, nevertheless, produce an improper effect on the minds of jurors.

The rejection of the depositions was also confirmed by the Court. The deponents state no facts on which they ground their opinion. This is to be required from physicians as well as others. Juries are to judge of facts; and although the opinions of professional gentlemen on facts submitted to them, have justly great weight attached to them, yet they are not to be received as evidence, unless predicated upon facts testified either by them or by others,

The Court observed that they gave no opinion, in this case, how far, or to what degree, insanity was to be received as an excuse in an action for defamatory words. Where* the derangement was great and notorious, so that the speaking the words could produce no effect on the hearers, it was manifest no damage would be incurred. But where the degree of insanity was slight, or not uniform, the slander might have its effect; and it would be for the jury to judge upon the evidence before them, and measure the damages accordingly.

Judgment on the verdict. 
      
      
        [Hawthorn & Al. vs. King, 8 Mass. Rep. 371.—In matters depending on skill ana science, or on many minute circumstances, which cannot be detailed, or commu nicated to a jury, — or merely on judgment, as time, space, magnitude, velocity, &c., — the opinion of witnesses is the best evidence of which the nature of the case will admit. — M'Kee vs. Nelson, 4 Cowen, 355. — Glas. 268. — 1 Phil. 275.
      In Poole vs. Richardson, (3 Mass. Rep. 330,) the subscribing witnesses to a will were allowed to testify as to their opinion of the sanity of the testator) but the other witnesses in the case were only allowed to testify to particular facts, relative to the state of the testator’s mind. The reason for this distinction is not obvious. If any distinction were to be made, it would seem, cateris paribus, that the testimony of the other witnesses should have been preferred, on account of their being more indifferent. Nevertheless, the decision in Poole vs. Richardson has been confirmed by that in Needham vs. Ide, 5 Pick. 510. — Ed.]
     