
    Hook’s Administrators v. Hancock.
    Decided, April 1st, 1817.
    i. Slander — Plea of Justification — Sufficiency of Evidence to Support Plea. — in an Action of Slander, for saying' of the plalntifl, “that he had taken the defendant’s slave, and that the defendant would have him sent to the Penitentiary for it;” the plea "being justification, “because the plaintiff did take a certain female slave, the property of the defendant, out of his possession, in such manner, and with such intention, as would subject him to such punishment;” to which the plaintiff replied generally, and issue was thereupon joined; it was decided, that, to support this plea of justification, it was sufficient for the defendant to shew that the slave, so averred to be his property, had been a long time in his possession as his slave, and was purchased by him as such; notwithstanding the pendency of a suit at that time, in her behalf for freedom; for, if her right to freedom could be inquired into in this action, an issue thereupon ought to have been tendered by the plaintiff, whereby the defendant might have known to what point to apply his evidence.
    2. Same — Investigation of Collateral Matter.— Quaere, whether, in an Action of Slander between A and B, the right of Oto freedom can be collaterally investigated?
    This was an action of Slander, brought by Hancock, against Hook in his life time. The words charged to have been spoken were laid several ways in the declaration ; viz. that Hook said, 1st, “G. Hancock has stolen my slave2d, “G. Hancock has taken my slave, and I will have him sent to the ^Penitentiary for it3d, “G. Hancock has robbed me of my slave, and I will send him to the Penitentiary for it. ”
    Hook pleaded, 1st, “not guilty,” to the whole declaration ; 2d, Justification to the 2d Count, “because the plaintiff, before, &c. did take a female slave named Nan, the property of the defendant, out of his possession, in such manner, and with such intention, as would subject him to the punishment mentioned by the defendant.”
    Hancock objected to the admission of the second plea, but the Court admitted it; and “thereupon the plaintiff replied generally to the last mentioned plea of the defendant,” and tendered an issue, which was joined. No issue was formally joined on the plea of not guilty.
    At the trial, Hook filed two bills of exceptions to opinions of the Court, both presenting the same question ; whether, as Hook proved, that he had been a long time in possession of the woman Nan as a slave, and had bought her, as such, from a person, who held her as such, and that Hancock had forcibly taken her out of his possession, pending a suit brought by her for freedom, it was competent to Hancock to prove, or for the Jury in this case to inquire into, the said Nan’s title to freedom, by birth or otherwise, unless she had actually been emancipated, or had recovered her freedom by the Judgment of a Court of Justice.
    The Court below held the affirmative. The Jury found that the defendant was guilty of, and not justified in, speaking the words in the declaration mentioned, and assessed the plaintiff’s damages to one thousand dollars. Judgment accordingly : from which Hook appealed to this Court.
    Wirt for the Appellant. The issue joined was not of a character to try the question made ; for Nan’s right to freedom could not properly be investigated, collaterally, in a trial between other persons. 
    
    Heigh contra.
    The special plea of justification to the second Count is quite too vague and general. It alleges that the plaintiff took the defendant’s slave out of his possession, in such manner, and with such intention, as would incur penitentiary punishment; but does not state the particulars of the manner *and circumstances of the taking, and thence infer the fe-lonioxts intention. The Court therefore should have sustained the plaintiff’s objection to the admission of that plea, in the stage of the cause, in which it was offered. But the objection was over-ruled : the plaintiff had then the alternative, either to demur, or go to issue on the plea : he was in a manner compelled to go to issue. If there be any uncertainties in the special pleadings, the defendant cannot complain : they arose out of the vague, loose general terms of his own plea ; and he should not be allowed to profit from its faultiness.
    How ought the plaintiff to have replied to this plea ? De injuria sua propria was the proper replication:  and the Court will consider the general replication, mentioned in the record, as equivalent; especially since the defendant took issue upon it. I doubt if a special replication could have been devised, putting in issue the matters mentioned in the bills of exceptions, without being liable to the charge of departure.
    What then, in fact, did the special pleadings, filed in the cause, put in issue ? They put in issue, in direct terms, the question whether the person taken from the defendant was a slave ; and whether she was Hook’s slave ? And they put in issue every circumstance that could affect the character of the plaintiff’s conduct, in taking that person out of the defendant’s possession ; every circumstance that could shew, that the taking was felonious, or not felonious.
    Now, the testimony, to which the defendant excepted, was introduced to prove, that the person taken from the defendant by the plaintiff was not his slave, but a free person : it therefore, in one point of view, met the issue directly. If the person so taken away was free ; that, surely, was a circumstance affecting the character of the taking. The violent taking of a pauper, actually suing for, and entitled to her freedom, from a person claiming her as a slave, might have been a breach of the peace ; or it might have been maintenance ; but it is hardly possible it could have been a penitentiary offence ; in other words, a felony.
    The Bills of Exceptions do not profess to contain all the evidence adduced in the cause. If, from the nature of the case the freedom of the person taken away might have been a circumstance relevant to the issue; a circumstance which, in '^connexion with other facts, might falsify the plea of justification ; the Court will suppose the evidence was rightly admitted,
    Nicholas in reply.
    The question is, whether the evidence offered was admissible under the issue joined. If the plea was improper the plaintiff should have demurred to it. After issue was joined upon it, evidence not within the scope of the issue ought not to have been admitted. The replication rather admitted that the negro woman was a slave, but denied that the plaintiff had taken her away under such circumstances, as made the act felonious. The question made, was not whether she was a free person, or not. She might have been found free by the Jury in this case ; and yet, in a suit for her freedom, might have been cast; another Jury finding her to be a slave.
    
      
      Slander. — See monographic note on “label and Slander” appended to Bourland v. Eidson, 8 Gratt. 27.
      Abatement oí Suits. — The principal case is cited on this subject in Harris v. Crenshaw, 3 Rand 18, 24; May v. State Bank, 2 Rob. 86.
    
    
      
       Dacosta v. Jones, Oowp. 729; Good v. Elliott, S Term Rep. 693.
    
    
      
       1 Chitty 559.
    
   April 1st, 1817,

JUDGE ROANE

pronounced the Court’s opinion.

The Court is of opinion that, to support the plea of justification to the second Count in the declaration in this case, it was sufficient for the Appellant’s Testator to shew that the slave Nan, in the first plea averred to be “his property,” had been a long time in his possession as a slave, and was purchased by him as such ; notwithstanding the pendency of a suit at that time by the said Nan for her freedom.

The Court is farther of opinion that, if it had been competent to the Appellee to inquire into her right to freedom, in this cause, an issue thereupon ought to have been tendered by him, whereby the Te'stator of the Appellants might have known to what point to apply his evidence. On this ground, the Court is of opinion, that the Judgment of the said District Court is erroneous, which is therefore reversed with costs, and the V erdict set aside: and, the said John Hook having departed this life, and the Court being of opinion that the action does not survive against his Executor or Administrator, it is ordered that the suit be abated.  