
    Cheatwood v. Mayo.
    Argued January 19th, 1816.
    Slander — Mitigation of Damages — Evidence of Suspicion. — whether, in-an action for words, circumstances of suspicion not amounting to full justification, may be proven in mitigation of damages?
    Mayo brought case for slander ag-ainst Cheatwood in the Superior Court of Amherst. The declaration charges, that the defendant said, the plaintiff “has killed, salted, and eaten a hog ; and no one can be hurt for calling him a hog thief ; and he is a hog thief.” Plea, not guilty. At the trial, the defendant filed exceptions to the opinion of the court ; stating that the defendant offered, in mitigation of damages, *and not by way of justification, to prove by a witness, that the witness had lost a hog; that the witness charged a slave of the plaintiff with having stolen his hog, which the slave denied, saying he knew nothing, about it; 'that the witness then applied to the plaintiff, to know if he knew any thing about the hog; on which the plaintiff acknowledged, that a hog of the description given had been killed at his house, agreed it was the witness’s hog, and carried him into his smoke-house, and shewed him the hog, which had been cut up and salted : and that the witness told all this to the defendant, before he spoke the words charged in the declaration: but, the court would not allow this evidence to be introduced in mitigation, &c. Verdict and judgment for the plaintiff. The defendant appealed to this court.
    Wickham, for the appellant.
    The testimony excluded by the court, was proper evidence in mitigation: — whether it deserved to have any effect, and what, was matter for the jury. The ancient practice was, that the truth of the words (and much more, I presume, circumstances of suspicion,) might be given in evidence under the general issue; Smithies v. Harrison,  The same appears from the case of Underwood v. Parks itself ; from which it appears, that the judges, by a sort of legislation, had changed the practice ; the chief justice said, that at a meeting of all the judges, a large majority of them had determined not to allow the truth of the words to be proven in mitigation, for the future, but that it should be pleaded, whereby the plaintiff might come prepared to defend himself, &c. That decision goes no further, than to require of the defendant, if he would avail himself of the truth in his defence, to plead it specially : but it had always been, and it remained, the law, to allow circumstances of suspicion, not amounting to full justification, 'to be proven in mitigation under the general issue. In Knobell v. Fuller, Eyre, C. J. lays down this doctrine as clear law. The opinion of Lord Ellenborough, in Mullet v. Hutton, is founded on the same principle, and is to the same effect. It may be objected, that the evidence in this case, did not amount even to matter of suspicion : but, surely, it belongs to the jury to consider of that: and, if it did not amount to matter of suspicion, still, *as shewing the circumstances attending the publication of the slander, it was proper evidence to regulate the measure of damages ; the circulator being less criminal than the originator of the slander. It may also be objected, that to have allowed this evidence would have been to take the plaintiff by surprise. I answer, that, in slander, the plaintiff must come prepared to vindicate the general tenor of his conduct, and to meet all the circumstances connected" with the slander, even on the general issue. So, too, in actions for criminal conversation, the plaintiff must come prepared, on the general issue, to meet imputations upon his own conduct as a husband, and that of his wife before her seduction. In the present case, the circumstances offered to be proved by the defendant were as proper evidence in mitigation, as evidence to shew any other circumstances attending the publication of the slanderous words, would have been ; as that they were spoken in heat, in a quarrel between the parties, and after mutual abuse; or the like.
    Leigh, for the appellee.
    Ever since the case of Underwood v. Parks, it has been regarded as settled law, that, in an action for words, the defendant cannot prove the truth of the words, in mitigation of damages, under the general issue. There are various matters, more properly of excuse than of justification, that may be either specially pleaded, or proved in mitigation under the general issue ; as that the words were spoken by the defendant as counsel, and were pertinent to his cause ; or were spoken in confidence ; or in a sense not defamatory, &c  The principle on which such matters are available under the general issue, is, that while they fall short of full justification, and do not so implicate the plaintiff’s character, as that he ought to have noticed of the defence, in order that he may bring proof of his own innocency, they tend to acquit the defendant of malice : what extenuates guilt is allowed to mitigate punishment. There is, indeed, one authority which seems to go farther ; I allude to Mr. Wickham’s case of Knobell v. Puller, where Eyre, C. J. said, that he had always understood that, in an action for words, the defendant may, in mitigation of damages, give any evidence short of such as would be a complete defence to the action, had justification *been pleaded. But I must be allowed to doubt this dictum ; because I can discern no good reason, why the plaintiff should not be apprised by special plea, of any grounds of suspicion intended to be adduced against him, that he may come prepared to wipe such suspicion off, when it is admitted he .must be so apprised of any guilt intended to be imputed to him, that he may have a fair opportunity to repel such imputation ; and because this was only a nisi prius opinion, never reviewed at bar, and perhaps loosely reported ; as Mr. Peake has been unable to find a single other case that goes the same length. The case of Mullet v. Hutton surely does not. That case turns entirely upon the principle of that class of cases, in which it has been held, that if the publisher of a libel, or of slanderous words, in the libel, or at the time of speaking the words, mention his authority, or name his author, he may prove that he wrote or spoke on such authority, in mitigation, under the general issue ; because that evidence discharges him of the malice of originating the scandal. This will be plain when the court comes to examine the case; the libeller there, in the libel, referred to a paragraph in a newspaper by quotation ; and the judge said the newspaper referred to might be shewn in mitigation of damages. However, taking the authority of Knobell v. Puller, in its utmost extent, and in the sense' in which Mr. Wickham takes it; — still, the only principle on which a defendant may avail himself of grounds of suspicion in mitigation, is, that they tend to acquit him of malice ; and the facts proven, must amount only to suspicion of the guilt imputed to the plaintiff ; the defendant cannot prove the very and the whole fact, on which he thought himself justified in applying the slanderous epithet to the plaintiff. Now, in the principal case, the evidence offered by the defendant, tended rather to convict him of malice ; of inferring a crime against his neighbour from an innocent action ; and though, in truth, it was an aggravation of the slander, yet, being offered as mitigation, the jury might have been misled to allow it that effect. In Lee v. Tapscot  Pendleton, Pres, said — “Illegal or improper evidence, however unimportant it may be to the cause, ought never to be confided to the jury ; for, if it should have an influence on their minds, it will mislead them ; and if it should have none, it is useless, and may at least produce ^perplexity.” Again, the evidence offered by the defendant would have amounted to direct and full proof of every fact which he alleged against the plaintiff; for it is plain, that the charge, that the plaintiff was a hog thief, was the defendant’s inference from the facts, thathe had killed, salted, and eaten a hog, not his own ; which last are the very facts he wanted to prove in mitigation. Was there, then, no way in which the defendant might have been led into the defence, which this proof would have afforded, if indeed it had been available at all? He might have pleaded not guilty as to part, and justification as to the residue, or not guilty as to the whole, and justification as to part; and so have given the plaintiff a fair opportunity to disprove or explain the misconduct imputed to him. The only remaining ground on which the evidence can be deemed admissible in mitigation, is, that it proved that the defendant spoke the words on the authority of a third person. But that were no excuse, unless he also proved, that, at the time he spoke the defamatory words, he named his author David v. Lewis. Nor unless he spoke only the very words he had heard from another; — Maitland v. Goldney.
    
    Wickham, in reply.
    It is objected against the authority of Knobell v. Fuller, that it was only a nisi prius decision, and that there is no other case which goes the same length. It was forgotten, that Underwood v. Parks was also a nisi prius case, yet its authority was never denied. It having been shewn, that the old practice was to allow even the truth of the words to be proved in mitigation, under the general issue, much more circumstances of suspicion not amounting to full justification ; and that the practice was only so far changed, as to require, that the truth, if relied on, should be specially pleaded, leaving the practice unaltered in the other respect ; it lay with Mr. Leigh to produce authority against the admissibility of circumstances of suspicion in mitigation. That he mistakes the principle on which the case of Mullet v. Hutton turns, is evident from this, that a reference to an anonymous newspaper paragraph, could not have pointed out to the plaintiff the original author of the scandal, against whom he might lay his action. The reason why the defendant is, not bound *to give notice, by special plea, of an intention to rely on circumstances of suspicion in his defence, is obvious: a special plea, disclosing circumstances of suspicion only, would be bad on general demurrer. Neither could the defen d-ant have pleaded justification as to the words, that the plaintiff had killed, salted and eaten a hog, and not guilty as to the residue, (as has been suggested ;) because the former words are only matter of inducement, and amount not, of themselves, to any distinct substantive charge. Such a plea had been a mere nullity. I still insist, that the malice which circulates, is not as great as that which originates, scandal; and that all circumstances, which affect the question of malice, are properly matter of mitigation, if they be such as cannot be used by way of justification. Surely, in the present case, the defendant’s guilt had been much less, if the witness had communicated the story about the hog to him, in such a , manner,, as to leave the impression on his mind, that the witness himself suspected the plaintiff of a felony, than if the communication had been so made, as to leave the contrary impression. Therefore, the manner in which the communication was made by the witness to the party, was proper matter for the consideration of the jury, under the general issue. The cases of Davis v. Lewis, and Maitland v„ Goldney, came on upon demurrers to special pleas of justification : they only decide, that the matters there pleaded, were not bars to the actions, that is, not full justification ; but they do not decide, that the same matters would have been unavailable, if offered in mitigation : they do not, then, touch our question.
    
      
      SIander — Mitigation of Damages — Circumstances of Suspicion. — In M’Alexander v. Harris, 6 Munf. 465, it was held that, 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.
      In Moseley v. Moss, 6 Gratt 534, it was left a query whether in an action of slander under the statute, the truth of the words spoken may be given in evidence in mitigation of damages; Cábele, P., and Baldwin, J., deciding in the affirmative and Allen J., in the negative. In his opinion, Baldwin, J., said, that there had been much conflict of decision, both in the English and American courts, whether facts and circumstances tending to prove, but falling short of establishing, the imputation against the plaintiff, may be given in evidence, as grounds which led the defendant to the belief of its truth, or as indicating that the damage to the plaintiff proceeded from his own conduct rather than from the speaking or publication of the words by the defendant; and he cites the principal case and M’Alexander v. Harris, 6 Munf. 465 on the subject.
      And in Bourland v. Eidson, 8 Gratt. 40, Allen, J., said; "The rule established in the case of Underwood v. Parks, Strange 1200, requires of the defendant, if he intends to justify the speaking of the words, that he should file a plea of justification, in order that the plaintiff may know what defense he is to meet. Whether it is competent for the defendant in mitigation of damages, to introduce evidence proving the truth, or tending to prove the truth, of the words spoken, has been a controverted question both in England and our sister states. The cases are variant and conflicting, and cannot perhaps be reconciled. In this state the rule of Underwood v. Parks has been fully recognized and acted upon in the cases of Cheatwood v. Mayo, 5 Munf. 16; and McAlexander v. Harris, 6 Munf. 465. These decisions have never been questioned in this court since; but on the contrary, the principles established by them, so far as respects words actionable at common law, were approved in the more recent case of Moseley v. Moss, 6 Gratt. 534. It becomes necessary therefore to ascertain what was the precise point established in each of those cases.”
      The judge then proceeds to examine the cases cited in the above quotation from 5 and 6 Munford, 'and says that the principal case establishes that evidence falling short of a full justification but tending to prove the truth of’the words charged, and leaving that impression on the minds of the jury is inadmissible, notwithstanding the declaration that it is offered in mitigation of damages and not by way of justification. In this case (Bourland v. Eidson), it was held that, in an action of slander, under the plea of not guilty, the defendant may. in mitigation of damages, prove any facts as to the conduct of the plaintiff in relation to the transaction which was the occasion of the slanderous language complained of, which tend to excuse him for uttering the words, provided the facts do not prove or tend to prove the truth of the charge complained of; but in fact relieve the plaintiff from the imputation involved in it.
      For further information on this subject, see monographic note on “Libel and Slander” appended to Bourland v. Eidson, 8 Gratt. 27.
    
    
      
       1 Ld. Raym. 727.
    
    
      
       Str. 1200.
    
    
      
       6 Gwyl. Bac. Abr. 258: 2 Esp. ni. pri. 112.
    
    
      
       Peake’s 1. ev. 287, App. XCII.
    
    
      
       4 Esp. rep. 216.
    
    
      
       1 Wms. Saund. 130, n. 1. 1 Chitt. plead. 487, 8 Peake’s 1. ev. 286, 7.
    
    
      
      
         vid. 3 Chitt, plead. 502, n. a.
    
    
      
       2 Wash. 281.
    
    
      
       1 Wms. Saund. 244, a, n, 6.
    
    
      
       7 T. R. 17.
    
    
      
       2 East 426.
    
   PUR CURIAM.

Without assigning any reasons, judgment affirmed.  