
    Grant v. Hover.
    
    Decided Oct. 27, 1817.
    I. Slander — ¿"litigation of Damages — Evidence—Words Spoken. — In an action of slander, for charging the plaintiff with perjury in a judicial proceeding; the defendant, on the plea of not guilty, (tho’ not permitted to prove the falsity of the words sworn by the plaintiff,) may prove what those words were, in mitigation of damages.
    This was an action of slander brought by the appellee against the appellant in the Superior Court of Kanawha County. The declaration charged the defendant with having said “that the plaintiff was a perjured rascal,” meaning thereby that, “the plaintiff was guilty of swearing falsely in a judicial proceeding where he was legally called upon to depose, and a lawful oath administered to him.” Plea Not Guilty. At the trial, the defendant, (after having examined Andrew Donnally, a witness introduced by him, (which witness was the magistrate *before whom the testimony impugned had been given by the plaintiff,) whether the plaintiff refused to answer any question put to him by the said magistrate, who said he did not refuse, but sometimes hesitated before he gave the answer,) then wished to interrogate the witness as to what the plaintiff swore before him; but the Court would not permit the defendant’s counsel to introduce such evidence, “considering that the truth or falsehood of his answer were improper, upon the plea of not guilty;” “the opinion of the Court being that the defendant, upon that plea, had a right, in mitigation of damages, to give in evidence any quarrel between the plaintiff and defendant at the time the plaintiff gave evidence, or that he was under the influence of the party for whom he deposed, or that he was a man of ill fame in witness-bearing; but that what he swore upon the trial before the magistrate, was improper to go to the jury in mitigation of damages, or in any manner to justify the speaking the words upon the plea aforesaid.” Whereupon the defendant filed a bill of exceptions. Verdict and judgment for the plaintiff for $500 damages; — from which the defendant appealed.
    Wickham for the appellant.
    The Court’s opinion was clearly against law. (a) If the plaintiff in his testimony had spoken ill of the defendant’s character, or of the character of his wife, or of some near relation of his, would not evidence of this have been proper in mitigation of damages? Perhaps the defendant might have been sworn before the same magistrate, and his testimony might have been contradicted by that of the plaintiff. He might then have said that the plaintiff was perjured.(b) This isa supposed case; but we cannot introduce any other; for the judge would not let us shew what the case was.
    Wirt contra.
    A Bill of Exceptions is the joint act of the Court and Counsel. The only opinion given is that, on the plea of not guilty, the defendant could not give the truth of the words in evidence by way of mitigation, (a) The defendant should have stated, in the bill of exceptions, for what purpose he wanted to introduce the testimony, if it was not to prove the truth of the words. — *That appears to be the only object, according to this Bill of Exceptions.
    Wickham in reply.
    The opinion of the judge certainly went to exclude all evidence to shew what it was the plaintiff swore to; and this was wrong. It is not said in the bill of exceptions, that the defendant offered to prove that the plaintiff was perjured. His object in putting the question to the witness is not stated.
    
      
       For monographic note on Perjury, see end of case.
    
    
      
       See monographic note on. “Libel and Slander” appended to Bourlandv. Eldson, 8 Gratt. 27. The principal case was cited with approval in Bourland. v. Eidson, 8 Gratt. &6.
      (a) Chitty, 488.
      (b) 6 Bac. 226, Moulton v. Olapham.
    
   JUDGE KOANE

delivered the Court’s ■opinion.

The Court is of opinion that, altho’ it might have been improper to have permitted the appellant, in this case, to prove the falsity of the words charged to have been sworn before the magistrate, and thus, upon the plea of not guilty, to fix upon the appellee indirectly the charge' of perjury, it was competent for the appellant to draw from the witness what those words were, in mitigation of damages: it being evident that the character of the words in question may have had a tendency to mitigate or aggravate those damages.

The Judgment is, therefore, to be reversed, and a new trial granted, in which the question propounded by the appellant, is to be answered, if requested.  