
    Samuel Larned versus Samuel Buffinton.
    In an action for slander, the plaintiff may give in evidence his own rank and condition of life, to aggravate the damages ; and the defendant may avail himself of such evidence when it will have a legal tendency to mitigate the damages.
    The defendant in such action may give in evidence, under the general issue, facts tending to mitigate the damages, which he will not be permitted to do, when he has pleaded the truth of the words in justification.
    If, through the fault of the plaintiff in such action, the defendant, at the time of speaking the words and when he pleaded the justification, had good cause to believe they were true, he may show this in mitigation of damages.
    This was an action of the case for a malicious prosecution and for slander, pending in the county of Hampshire. The declaration contained seven counts. The first states that the defendant, maliciously, and without probable cause, sued out a writ of attachment against the plaintiff, and procured him to be arrested thereon, and imprisoned in the jail at Northampton forty-eight hours, until he procured bail; this count also states that the defendant had nc cause of action, and that the suit was ended and determined. The second count is for speaking these words of the plaintiff, “ He hath stolen my horses out of my stable, and if I should proceed to the extremity of the law, it would be horse-theft.” There are five other counts, all charging the defendant with speaking substantially the same words.
    
      *The defendant pleaded, 1st. The general issue to all [ * 547 ] the counts. 2d. A justification as to the six last counts, because the words were true. Issues being joined upon both the ¡leas, the cause was tried before Sewall, J., at Northampton, at the adjourned term, in December, 1805.
    The plaintiff having produced his proof in support of the first count, and having proved the publishing the words in the other counts by the defendant at divers times and places, and to divers persons, the defendant offered to prove, in mitigation of the damages, the manner and condition of life of the plaintiff, and also that his general character, previous to any of the causes of action alleged in the declaration, for honesty, integrity, and fair dealing, was not good. The judge refused to admit the evidence, and the defendant excepted to his decision. The judge also, in summing up the cause to the jury, directed them that, considering the circumstances which had been proved, which circumstances are hereinafter stated by the Chief Justice, considering likewise the manner of speaking the words, and especially the justification thereof by the defendant in his plea in bar, nothing short of the absolute truth of the words spoken ought to be considered by the jury in mitigation of the damages claimed for speaking the words so laid and proved. To this direction, the defendant also excepted. There was a verdict for the plaintiff.
    Upon these exceptions the defendant moved for a new trial, and the motion was argued by Ashman, for the defendant, and Bliss, for the plaintiff, at September term, 1806, and again at the last September term, at Northampton.
    
    
      Ashman, in support of the motion,
    contended that the plaintiff, by bringing an action for a slander upon his character, put that •character in issue,,-and it was competent for the defendant to show to the jury, in mitigation of the damages, that the plaintiff’s state in society was low, and his property small, so that a small sum would be considered by the jury an indemnity equal to a large one in the case of a wealthy man. But especially had the defendant a right to give eviatwe of the immoral character of the plaintiff. To deny this is to say that a bad man, one whose general character is * notoriously infamous, is entitled to the same [*548] damages for defamatory words spoken of him, as the purest man in the community.
    A plea in bar that the plaintiff was not of good fame or reputation has been overruled; because it is no answer to the charge contained in the words . But whenever a party cannot avail himself of special matter by pleading, he may give it in evidence upon the general issue .
    Suppose a man to gain his living by stealing sheep. This could not be pleaded m justification of a charge against him of horse stealing; but it is unreasonable .that the defendant should not be permitted to show it in mitigation of damages.
    The defendant’s having pleaded in justification, and failed in supporting it, cannot deprive him of a right to give any legal evidence under the general issue. This would be to punish him for pleading a special justification, which he believed he could support; in other words, to make him a greater sufferer for having believed the words true, than if they had been spoken by him merely from malice. The belief of the truth of words is, it is. true, no justification for speaking them; but the common feelings of mankind show that it is a proper consideration to mitigate the damages.
    The declaration, in cases of this sort, always alleges the plaintiff to be of good fame, &c., among his fellow-citizens, and as this cannot be denied by pleading, it will always be presumed true, unless the contrary can be proved to the jury in mitigation of the damages.
    If it be said that the jurors are presumed to know the general character of the parties before them; besides that this is not true in fact in many cases, it may be answered that the jury have no authority, in making their verdict, to take circumstances into consideration which the parties have no right to give in evidence. If jurors have a right to form their opinion from reports and impressions received abroad, the parties should seem to have a right to correct those reports and impressions by testimony.
    A plaintiff of high rank and condition in life, may give this in evidence in order to increase the damages; the de- [ * 549 ] fendant, *if equal justice is administered, ought to be permitted to show that the contrary is true, in order to diminish the damages. If one may recover more, certainly another should recover less. It is true the rights of parties are equal; but this does not show that their characters are equal, or that one has not suffered much less from a slander than another. And the damages ought to be proportioned to the injury or suffering. What damages, in short, can a man be supposed to sustain from a slander on his character, whose character is such as these exceptions exhibit ?
    In the case of Rodrigues vs. Tad,mire 
      , Lord Kenyon permitted the defendant in the action, which was for a malicious prosecution, to go into evidence of the general bad character of the plaintiff, but not of particular instances of misconduct, and the defendant had a verdict.
    
      Bliss, for the plaintiff,
    argued that the same reason which prohibited the defendant from pleading the general bad character of the plaintiff, viz., that it was no answer to the declaration, operated with equal force against giving it in evidence without pleading it. Another reason applies more strongly, viz., that the plaintiff cannot come prepared to justify his whole life .
    In the case cited from Espinasse, the defendant had shown probable cause, before he was allowed to go into inquiries as to the plaintiff’s general character, which sufficiently distinguishes that case from the case at bar. Here too the defendant has selected the point on which he chose to rest his defence.
    If the truth of the words may not be given in evidence on the general issue, it is unreasonable that what amounts to less than the truth of the words should be received; and if, under the plea of the general issue, the defendant cannot go into the inquiry as to the plaintiff’s general character, it is still less to be allowed where he has set up a special justification, altogther foreign to such an inquiry.
    The plaintiff has made his manner and condition of life no argument in aggravation of the damages; show then has the * defendant a right to use it in mitigation of the damages ? [ * 550 ] Indeed the plaintiff would not be allowed to show his condition of life, unless he had alleged it in his declaration, as that he was a peer, a clergyman, &c. Condition must refer to the person’s rank in society, in point of honors, wealth or birth. But under our republican constitutions, the rights of all are precisely on a level. One man’s character is worth as much, in the eye of the .aw, as another’s; and the servant has a right to equal damages for the same slander with-his master. Wealth forms the only dis tinction known among us, and that is applied only where one is a candidate for some high offices, for which a certain portion of estate is a necessary qualification.
    
      Ashman, in reply,
    said he had not contended for a right to give the truth of the words in evidence under the general issue, but that having given legal evidence under the special justification, the! jury had a right to consider that evidence in mitigating the damages The legal presumption being in favor of the plaintiff’s' character for honesty, integrity, &c., the defendant should be permitted to rebut such presumption with evidence, that the consciences of jurors may be informed and enlightened.
    
      After the first argument the defendant filed an affidavit, in support of his motion for a new trial, stating that he had at the trial a number of witnesses, naming some of. them, by which, had he been permitted, he. expected to prove the circumstances which are referred to in the opinion of the Court, as afterwards delivered by the Chief Justice.
    
    
      
      
        Stirchy’s case, Style, 118, cited in 4 Bac. Abr. Tit. Slander, S. § 5
    
    
      
      
        Bull, N. P. 298.
    
    
      
       2 Esp. Rep. 721
    
    
      
       1 Saund. 244, in notis.
    
   The action was continued nisi, and now the Chief Justice, and the Judges Thatcher and Parker, being present, the following opinion of the Court was delivered by

Parsons, C. J.

This action is on the case for a malicious prosecution, and for defamatory words charging the plaintiff with stealing the defendant’s horses. The defendant pleaded the truth of the words in justification, and issue was joined on a traverse of this plea; and a verdict found for the plaintiff. •

The defendant moves for a new trial, because evidence, proper to mitigate the damages, was rejected by the judge; and [ * 551 ] * because he misdirected the jury on the subject of damages; and on these two grounds exceptions are filed. The defendant, failing in his justification, proposed to prove, in mitigation of the damages, the manner and condition of the plaintiff’s life, and that, previous to the cause of action, his general character for honesty, integrity, and fair dealing, was not good. Evidence of this nature was not admitted by the judge.

On the argument, it was observed by the Court that a general statement of evidence proposed to be given, without producing witnesses to testify agreeably to the statement, was not regular; and the defendant was called upon to state the facts he was ready to prove. He accordingly stated by affidavit, that he at the trial had witnesses to prove that the plaintiff left his father, a few years since, before he was of age, and without any property ; that since that time,he had been a roving single man, without any fixed place of residence for any great length of time, and without having any regular business; having lived in Boston, Wilbraham, Springfield, Middleton, Worthington, and Northampton; that he has in some of those places been considered as a drover, in others a butcher ; and in a very circumscribed manner had followed those branches of business; but that the principal part of his time had been employed in buying, selling, and exchanging horses in different parts of this and of the adjacent states; that he was without real estate; and that in the manner of gaining subsistence, and in his grade and standing with society, he was below mediocrity.”

After this statement, the Court, in forming their opinion, have considered evidence of these facts as regularly offered by the defendant, and as rejected by the judge.

As the defendant has not stated that any evidence was offered touching the plaintiff’s moral character, it is not necessary to give an opinion whether such evidence would have been legal. But we are of opinion, that the plaintiff may give in evidence, to aggravate the damages, his own rank and condition of life, and also, that the defendant may avail himself of such evidence, when it will have a legal tendency to mitigate * the damages, [*552 | and that this may be done either on the general issue, or on a traverse of the justification, because the degree of injury the plaintiff may sustain by the defamation may very much depend on his rank and condition in society.

It is a rule of law, that in the prosecution of any cause neither party shall give evidence of any matters which are not in issue, because the other party will have no opportunity of encountering this evidence by opposing testimony.

Consistently with this rule, the plaintiff’s rank and condition in life may be given in evidence, because it is in issue, as the knowledge of it may be necessary to a just assessment of the damages, and because it is a fact, in its nature, of general notoriety. But the rule will not admit evidence of the particular facts in the defendant’s statement, or the plaintiff must be considered as, at all times, prepared to give a history of his places of abode, and of his occupation during a great part of his life, even in his minority, and to have with him his title to real estate, if he has any. Neither does the knowledge of the facts appear useful in the assessment of damages, unless, perhaps, to aggravate them by proving to the jury that the plaintiff was very generally known among his fellow-citizens, and that from this circumstance the injury from the slander would be more extensive.

We are now to consider whether the plaintiff’s rank and condition in life, which the defendant offered in evidence, would have had, in this case, any legal tendency to mitigate the damages.

The allegation that the plaintiff’s manner of gaining subsistence, and that his station and condition in society was below mediocrity, when connected with the other allegations in the defendant’s statement, would, if proved, have satisfied the jury that the plaintiff gained his subsistence by buying, selling, and exchanging horses, in this and the neighboring states, or, in other words, that he was a horse-jockey. Now, from the nature of this action, and from the evidence in the cause, it is not easy to presume that the jury had not evidence of these facts. It was the interest of the plaintiff that they should have this evidence, as its tendency in this case would have been rather to aggravate the damages. A man [ * 553 ] *vvith the reputation of a horse-stealer is ruined osa dealer in horses. With this character hanging on him, no man would trust him to try a horse; and no man would buy a horse of him, through fear he should buy a stolen one. We are, therefore, of opinion that this evidence, if given by the defendant, would have no legal tendency to mitigate the damages, and consequently he is not injured by its rejection.

The defendant has also excepted against the direction of the judge, because he charged the jury, that, considering the circumstances which had been proved, the manner of speaking the words, und especially the justification by the defendant on record, no evidence'whatever could be considered in mitigation of damages.

We are satisfied that evidence of certain facts and circumstances may be received under the general issue, which ought to be rejected under this justification. In the former case, the defendant may prove that the words were spoken through heat or passion, and not from malice; or that they were spoken with an honest intention, through mistake, and not with a design to injure the plaintiff. But if the defendant, when called upon to answer in a court of law, will deliberately declare in his plea that the words are true, he precludes himself from any attempt to mitigate the damages by any of those facts or circumstances, because his plea of justification is inconsistent with them .

But we are not prepared to declare that there are no facts or circumstances, from which the jury may mitigate the damages under a special justification of the truth of the words, in which he shall fail. When, through the fault of the plaintiff, the defendant, as v/ell at the time of speaking the words, as when he pleaded his justification, had good cause to believe they were true, it appears reasonable that the jury should take into consideration this misconduct of the plaintiff to mitigate the damages. The direction of the judge excepted against is predicated not only on the plea of justification, but also on the circumstances which had been proved in the case. He has, therefore, at the request of the [ * 554 ] * Court, furnished us with a report of the evidence in the cause.

From this report it substantially appears that the plaintiff had several horses at the defendant’s stable in Worthington at livery; that all the horses were the property of the plaintiff, except a black horse, which was the joint property of the parties; that the plaintiff wanted the black horse to match another horse of his own, ana that the defendant wanted him for the same purpose; that the plaintiff pri *ised finesse in removing the horses from the defendant’s stable, and in fact removed them, without the defendant’s knowledge, to Mills’s stable, distant about half a mile; that the next day the defendant knew they were at Mills’s, and was there with the plaintiff attempting to adjust the controversy, and offered the plaintiff to arbitrate it, which he refused; that about two days after, the plaintiff took all his horses, and went on with them to the east ward; that the defendant followed him, and might have arrested him at Northampton, but declined it, because he might attach more property when the plaintiff had gone further on; that the defendant arrested him at Belchertown, on a writ which he did not prosecute ; that about the time of the arrest, and also after the plaintiff was in custody, he repeatedly uttered the defamatory words; that about the same time he told a witness that the horses were not his, except half the black horse, but that it was best to use policy.

From considering the report of the evidence, we are satisfied that the judge’s direction, predicated on this evidence, was right. It does not appear that the defendant ever supposed that the defamatory words were true. He knew that all the horses were the plaintiff’s, except the black horse, and of him that the plaintiff was part owner; this he declared, but said it was necessary to use policy. Indeed the inference is, that he knew that the words were not true; for at Mills’s he did not charge the plaintiff with theft, but attempted to settle the dispute, and offered to arbitrate it. Afterwards, when he has had time for reconsideration, and to obtain the information of counsel as to the law as applied to the fact, he comes into court, and publicly puts the slander on record.

* It is our opinion that a new trial be not granted, and [ * 555 ] that judgment be rendered according to the verdict, with the additional damages and costs, as consented to by the defendant, in his agreement on file.

After the opinion of the Court had been thus delivered, the Chief Justice observed that there had been no opportunity of consulting with Judge Sedgwick, but that the opinion had been laid before Judge Sewall, who fully concurred in it. 
      
      
        [Jackson vs. Stetson & Al. 15 Mass. 48.—Alderman vs. French, 1 Pick. 1.—Sedvide, cases in the notes to Jackson vs. Stetson, ub. sup.—Ed.]
     