
    William Thompson against William Boyd.
    Charleston,
    May, 1817.
    Libel. — The geefnefoDdaitorfered in evidence a handbiii issued bypleintiff,which S,c iibeif^hich the ground that it should have gone to the jury in mitigation of damages.
    The case was tried before Mr. Justice Smith, in January Term, 1813.
    1 his was an action on the case for a libel published by the defendant concerning the Plaintiff. in a newspaper printed in Charleston, called “ The Times,” which was of the tenor and nn ¡ r t* • eiiect following:
    “ In reply to a handbill circulated in town last evening, or this morning, by William Thompson, I deem it due, out of respect No the community, to state the expressions alluded to, together with the occasion which caused them to be uttered. On the 30th November, in the present year, Mr. William Thompson applied to be admitted into the St. Andrew’s Society; being a member of this Society, and present when his application was read, I observed that I thought he ought not to be admitted, as his character laboured under the charge of having insured a brig, (the Betsey, in June, 1801,) from Savannah to North Carolina, at the same time in Charleston and several other places in the United States, and also in Great Britain, when she was old, rotten, add not sea-worthy; that upon these grounds, when the vessel was lost, the underwriters here refused to pay him; that upon a suit being instituted against them, commissioners had been despatched for the purpose of obtaining testimony necessary to substantiate these facts; that those commissions had been returned^ and that subsequently to their return the action had not been prosecuted. These facts are doubtless well known to all the underwriters on the policy, oné of whom I was myself The names of the gentlemen who subscribed it are David Alexander, Thomas Steward, John Teasdale, John Haslet, Joseph Byrne, Kirk and Lmkins, John F. ^ Kerr, ¡Muir and Boyd, De Larue, William Somersall and Son, and Tunno and Price. After this representation it must be very evident that the epithet of calumniator, which is bestowed on me, is unmerited : I uttered openly in a society, of .which 1 was a member, my opinion of the pretensions of an applicant, and avowed the reasons upon which that opinion was founded. Had I been silent, I should have violated my duty towards the society, in suppressing information, when called upon to communicate it, upon an occasion when, if silent, an applicant might have been received, whose admission would have operated injuriously to the respectability of an association, amongst those who were ignorant of its members, but acquainted with the character of the individual Mr. Thompson. The appellation of coward I treat with contumely, proceeding from such a man, and on such an occasion.
    (Signed) “ WILLIAM BOYD,”
    
      The defendant pleaded the general issue; and on the trial in the Circuit Court, offered to give in evidence in mitigation of damages, that the plaintiff was generally suspected of the fraud imputed to him in the libel. He also offered in evidence by way of mitigation, the handbill referred to in the first and last paragraphs in the libel, and which was in these words:
    “ William Boyd having recently made use of unwarrantable expressions touching the subscriber’s character, he was waited on to grapt the redress custotnary on such occasions, which he refused; in consequence, I pronounce him a base calumniator and coward.
    (Signed) “WILLIAM THOMPSON.”
    And to which it was alleged the libel in question was directly and professedly an answer. The defendant also further offered in evidence to prove the fact stated in the libel, the commissions which were referred to, and that upon their return the plaintiff had discontinued his action against the underwriters, on the policy of insurance mentioned in the libel; but the presiding Judge sustained an objection to the admissibility of this evidence under the general issue, and the Jury found a verdict for the plaintiff for one thousand five hundred dollars damages.
   Johnson, J.

delivered the opinion of the Court.

The grounds necessarily arising out of the case as stated, and several others, are taken on a motion fora new trial; but. as the Court was unanimously of opinion that the defendant is entitled to a new trial on the second ground, and have declined expressing any opinion on the others, it is thought unnecessary to state them. The second ground was, that the presiding Judge erred in refusing to permit the defendant to give in evidence, under the general issue, by way of mitigation of damages, the handbill above-mentioned, which was expressly referred to by the libel, and to which it was professedly an answer.

One libel cannot be pleaded or set off as a justification in an action brought upon another; hut. whatever is material to the issue may be given in evidence. In actions for words either parole or written, which are in themselves actionable, and in which it is not necessary to prove special damages, malice is a sine qua non ; it is an essential ingredient. The general issue, therefore, puts the question of malice directly in issue: whatever, therefore, goes to prove the existence or want of malice,, is clearly admissible. Upon the same principle, the occasion and manner of speaking or publishing the words are always admitted as going to show the quo animo. The inquiry then, is, whether the handbill offered in evidence went to show the quo animo with which the libel Was published, or the occasion which called it forth? The libel itself contains sufficient evidence that the handbill was the occasion which induced its publication; and it is obvious, that at the time the defendant was writhing under the libellous matter contained in it, and that to repel it was at least in some measure the quo animo. How far it ought to have had the effect of excusing the wrong done by the defendant, was a question for the consideration of the jury. They might perhaps have considered the handbill itself as a consequence of the preceding declarations of the defendant, stated in the libel; but whatever influence it might have had, it was clearly admissible. I will not, however, like Lord Kenyon, in Anthony Pasquinas case, throw the plaintiff’s parchmenUat his head, and dismiss him from the Court with infamy. But I am clearly of opinion that the motion for a new trial ought to be granted.

Prioleau for the motion.

K. L. Simons, contra.

The other Judges concurred.  