
    *Brooks v. Calloway.
    December, 1841,
    Richmond.
    (Absent Bkooke, J.)
    Slander-Insulting Words — Duelling Law — Justification. — 1To an action for insulting words under the statute to suppress duelling no plea of justification can be received.
    Practice — Bills of Exception — Certificate of Facts — Evidence Conflicting.- —Where the evidence on the trial of an issue is conflicting, and the court is satisfied with the verdict, and a new trial is asked and refused, the court is right not to certify the facts proved.
    Same — Continuance.—A party having had two, if not three, continuances, and leave to take his depositions to be read in chief, is neither entitled to another continuance, nor to have the trial of the cause put off for another day during the same term.
    
      Same — New Trial — Improper Remarks by Court. — The court, on the trial of an Issue, makes a" remark calculated to prejudice the minds of the jury against the defendant, hut at the same time tells the jury, that that remark has nothing to do with the cause, and ought not to influence their verdict; and a verdict is rendered for the plaintiff: Held, such remark isnb ground for reversing thejudgment on the verdict. '
    Action for slander, by Calloway against Brooks, in the circuit superior court of Campbell. The declaration contained two counts. The first alleged, that Calloway had been called upon to give a deposition for the plaintiffs in a certain suit in chancery wherein Andersons were pláintiffs, and Brooks the defendant in this action was defendant, that certain written interrogatories had been on that occasion propounded to Calloway, which he proceeded to answer and fully, and truly answered, and that Bro.oks, the defendant in that.suit as well as in this, being present, addressed to Calloway, then under examination, the following slanderous words — “beautiful deposition; there is _ no.t a word of it true, and you , know it, Mr, Calioway; j'ou are a most infamous man.” But this count did not allege, that the matters contained in the interrogatories and answers thereto were pertinent or material to the issues in the suit in chancery in which the deposition was taken; or *that Calloway had been sworn before he gave his answers to the interrogatories and before the words complained of had been spoken by Brooks. The second count, after stating that Calloway had actually given the deposition in the suit in chancery of Andersons v. Brooks, and had made oath to the same, and that the matters therein deposed to were pertinent and material to the issues in that cause, alleged, that Brooks spoke the following slanderous words of Calloway to third persons — “he (Calloway) has stated in his deposition matters and things which are not true, and he must have known that they were not true;” meaning that Callo-way, in giving his evidence therein, had committed wilful and corrupt perjury. Neither of the counts founded the action on the statute fo suppress duelling, Supp. to Rev. Code, ch. 228, 8, p.. 284, and both concluded, generally, that the plaintiff had sustained damages &c. .
    Brooks pleaded the general issue to the ■whole declaration ; and tendered two special pleas of justification to part of the words charged in the first count, viz. the words— “you are a most infamous man. ” The first of the special pleas justified the speaking of those words, by a general allegation £hat Calloway was a person of notoriously bad ■character; and pleaded not guilty as to the other words complained of in that count. The second special plea justified the speaking of the same words, by alleging that Calloway had presented a forged order for ; goods to ■ certain • merchants, and had on that forged order obtained the goods from them, knowing at the time that the order was a - forgery. The court rejected these two special pleas.
    At April term 1837, the cause was continued- generally. At the next September term, it was continued for the defendant. At April term 1838, the defendant obtained rules: upon two of his witnesses, to shew cause why they should not be fined for their failure to attend according to summons; and then the cause was continued, without *sa3'ing whether for plaintiff or defendant. At- September term 1838, the cause was - continued for the defendant Brooks; and (as the record stated) by consent of the plaintiff, the defendant had libert3r to - take the depositions of all his -witnesses, -to be read in chief,' upon giving the plaintiff reasonable notice &c. and by consent of parties in proper person, it was ordered, that this suit should not abate by the death of plaintiff or defendant.
    The cause being set for trial on the first day of April’ term 1839, and being called for trial- on the third day, Brooks - moved that it should be laid over till-the next day, or, if the court should refuse that, then he asked for a continuance, on the ground of the absence of material witnesses whom- he had summoned. The; court refused the day’s delay, or to continue the cause; founding the refusal, it seemed, on the leave which, with the plaintiff’s consent, it had given the defendant, at the preceding term, to take the depositions of all his witnesses to be read in. chief; although, the defendant stated on.oath, that he could not know how to examin.e his witness till the plaintiff had examined his own; that the depositions would not avail him as fully as an examination in open court; and, moreover, that -he had understood that the lbave was intended to authorize him to read sundry depositions'which were filed in another cause.
    Upon the trial of the general issue, the plaintiff having ’introduced a witness to prove that the evidence contained in his deposition in the case of Andersons v. Brooks, the truth of which the defendant had impugned, was pertinent and material to' the issue in that cause, the defendant’s counsel objected that this could- only be proved by the record of the case itself, and that no inferior evidence was admissible; whereupon the court ruled, that the plaintiff might read the bill and answer in that suit, to shew the materiality and pertinency of the deposition to the points there in issue. The defendant -insisted, that not the bill and answer only, but the *whole record, must 'be read; but the ■ court permitted the bill and answer ; e tonly to be read, for the purpose of shewing the materiality and pertinency of the deposition, and for no other purpose: and the judge said, that if the whole record should be introduced,- “it would prove-that the defendant was a slanderous man, from the efforts fnade in that cause to impeach the character of so many witnesses who testified against him, and ’ made without- success ; but he at the same time told the jury, that the statement so made by him in regard to the contents of the record, had-nothing to do with this case, and should not be regarded by them as any thing in their decision of this cause.” The defendant’s counsel excepted.
    The jury having found a verdict for the plaintiff for 750 dollars damages, the defendant moved the court for a new trial on the ground that the verdict was not warranted by' the evidence. The court was satisfied with the verdict, and overruled the motion. The defendant tendered a state of the facts proved at the trial, and prayed the court to certify it, or to correct it if imperfect, and to certify the true state of the facts proved. This the court refused to do, because the evidence in the cause was conflicting, and it was the province of the jury to judge of its credit, assigning its reasons at large.
    The defendant again excepted; setting forth, in- the bill of exceptions, 1. the bill and answer, and this deposition of Cal-lowa3r, in the case of Andersons v. Brooks, read for the purpose of shewing that the deposition was pertinent and material to the matters in issue in. that cause; and 2. the parol evidence — That, after the taking of the deposition had been commenced, and -Calloway had written his answers to all the questions put .to him by the plaintiffs in the chancery cause, but before he had been sworn as to the truth of those answers, Brooks came, with one of his counsel in the chancery cause, to the place where the deposition was being taken, and then the questions and answers were read over to him *by his counsel; and, immediately afterwards, Brooks, in the presence of the counsel for the plaintiffs, and of the counsel for the defendant, in the chancery suit, no other persons being present, addressed to Calloway the words charged as slanderous in the-first count of the declaration: that after the deposition had been taken, Brooks applied to many persons, to obtain their testimony for the purpose of impeaching the character and credit of Calloway, and actually obtained the depositions of most of the persons he applied to, and filed them in the chancery cause; that to some of the persons so applied to, he represented the statements made by Calloway in his deposition as being wholly false, and to others he said, that the deposition contained nothing but lies; and Brooks avowed to most, if not to all, the persons he applied to, that his object was to do away the effect of Callo-way’s deposition, alleging that unless he-could do so, the deposition was calculated to do him serious injury. A large number of witnesses were then examined, on both sides, as to the general character of Callo-way previous to the publication of the words charged in the declaration as slanderous; and the testimony on this point was conflicting, some of the witnesses expressing the opinion that Calloway’s character was good, and others, that it was bad.
    The court then gave Calloway judgment for the 750 dollars damages assessed by the jury. -And to that judgment, this court, at the instance of Brooks, -awarded a super-sedeas.
    Leigh, for plaintiff in error.
    Grattan, for defendant.
    
      
      SIander — Insulting Words — Duelling Law — Justify cation.- As the law formerly was. the truth of the allegation could not, in a suit for insulting words under the statute, be pleaded in bar of the action, but, as the majority of the court held in Moseley v. Moss, 6 Gratt. 541, might be given in evidence in mitigation of damages. See the principal case cited in Moseley v. Moss, 6 Gratt. 541, 548; Sweeney v. Baker, 13 W. Va. 204; Hogan v. Wilmoth, 16 Gratt 87; Chaffin v. Lynch, 83 Va. 112, 113, 120, 121, 1 S. E. Rep. 803.
      But see principal case cited in opinion of Judge Adlen in Moseley v. Moss, 6 Gratt. 553, where that judge said that the same reasons which induced the court, in the principal case, to hold that a plea of justification was not admissible in bar of actions founded on the statute, should exclude such evidence when offered in mitigation of damages.
      Same Same — Same —Same—Present Rule. — But the statutes now provide that in any action for defamation, the defendant may justify by alleging and proving that the words spoken or written were true. Va. Code 1887, ch. 164, sec. 3375; W. Va. Code, ch. 130, sec. 47. p. 881.
      And this statute was construed in Hogan v. Wil-moth, 16 Gratt. 80, as changing the law theretofore existing in Virginia, and as permitting to be filed, as a plea in bar of an action for insulting words spoken or written, their truth, thus putting on the same footing in this respect common-law and statutory actions for defamation.
      In Chaffin v. Lynch, 83 Va. 121, 1 S. E. Rep. 803, the court, in discussing this statute, said: “And it cannot be doubted that if the statute had been the same as it now is when Brooks v. Calloway and Moseley v. Moss were decided, those cases would have been decided the other way, without the help of the statute, subsequently passed, permitting the truth to be pleaded in justification, as it may now be done.” See 4 Min. Inst. (4th Ed.) 468, and foot-note to Moseley v. Moss, 6 Gratt. 534.
      The principal case is cited in Royall v. Thomas, 28 Gratt. 137.
      Same — Jury Best Judges of Issues. — As to the point that a jury is the best and safest tribunal for determining the issues in an action for slander, see the principal case cited in Corr v. Lewis, 94 Va. 26, 26 S. E. Rep. 385.
      Same — Pleading under Statute. — In Hogan v. Wilmoth, 16 Gratt. 84, the court said; “It is true, there is some apparent conflict between the decision of the court in Moseley v. Moss and its previous decision in the case of Brooks v. Calloway, 12 Leigh 466, inasmuch as the court, in affirming in the last-mentioned case the judgment of the circuit court, rejecting the plea of justification to the first count of the declaration — which, whilst it averred the words complained of to be slanderous, was plainly defective as a common-law count for defamation— proceeded on the assumption that said count might be relied on, under the statute, though it neither averred that the words were insulting, nor made any reference to the statute, to indicate that the action was founded on it. It is to be observed, however, that in Brooks v. Calloway, there was no demurrer to the declaration, * * * whilst in Moseley v. Moss, there was a demurrer.”
      See generally, monographic note on “Libel and Slander” appended to Bourland v. Eidson, 8 Gratt 27.
    
    
      
      Practice — Bills of Exception — Certificate of Facts— Evidence Conflicting. — Upon the point, that a court cannot be required to certify the facts proved, where the evidence is conflicting. see Nease v. Capehart, 15 W. Va. 300; and the principal case cited in Taliaferro v. Franklin, 1 Gratt 345, 346, and note; Morgan v. Fleming, 24 W. Va. 192.
      Same —Same—Certificate of Evidence — Principal Case Overruled. —But in Muse v. Stern, 82 Va. 37, the court said: “This court having gone thus far in opening the door for the admission of evidence, in Powell v. Tarry, 77 Va. 263, took another step forward, and in that case held that whenever the inferior court, for any cause, could not or would not certify the facts, that it must, upon the application of the party aggrieved, certify the evidence. Thus expressly overruling Grayson’s Case, 6 Gratt. 724, upon this particular point, and by necessary implication, overruling Brooks v. Calloway, 12 Leigh 466, and Taliaferro v. Franklin, 1 Gratt. 332, on the same point.”
      See monographic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
      Continuance. — The principal case is cited with approval in Logie v. Black, 24 W. Va. 22, 23.
      
      See foot-note to The Bland and Giles County Judge Case, 33 Gratt, 445, and monographic note on “Continuances” appended to Harman v. Howe, 27 Gratt. 676.
    
    
      
       Practice — New Trial — Improper Remark's by Court.— The principal case is cited with appovál by Judge Lee in McDowell v. Crawford, 11 Gratt. 390, but distinguisbed. by Judge Monouke on p. 407 of the same case.
      See monographic note on “New Trials.”
    
   ALLEN, J.

The first count in the declaration does not allege, that the answers to the interrogatories.were material, or that Calloway had been sworn before he gave his answers: the words spoken do not constitute *slander at common law, and this court can only be supported under the statute against duelling. The second count is for words actionable at common law, the charge amounting to perjury. The defendant pleaded the general issue to the whole declaration, and tendered two special pleas of justification as to part of the words in the first count. Objection being made to the special pleas, they were rejected.

Upon these proceedings, the question now for the first time is presented for determination, whether it is competent to justify words actionable only under, our statute against duelling. The history of that statute is familiar to all; it was. an extreme measure, almost of questionable authority, and only to be justified by the enormity of the evil it was intended to cure. It makes killing in a duel murder in th" first .degree,, incapacitates persons challenging or accepting a challenge from holding office, and prescribes a test oath to all taking office under the commonwealth. The effect of the statute has been .most beneficial; the practice has been repressed. It exists almost a solitary example of legislation carried to the extremity of rigour, where the severity of the enactment has not defeated the policy of the law. In view of these benefits, but dreading the e.xample, the convention to amend the constitution gave a constitutional sanction to a provision to effect this particular object; thereby shewing their sense of the benefits of this law; but guarding, by a sanction of it, from the application of the precedent to any other case, under the maxim expressio unius ex-elusio est alterius. Whilst the legislature was, by this strong measure, seeking to eradicate the evil, it could but not occur to it, that it was equallj* incumbent upon it, to provide some remedy for those injuries which most frequently led to the practice. The common law remedjr by action of slander, had been found totally inadequate. Persons who might be accused of offences with any show of probability, rarely *thought of appealing to the (so called) code of honour. But personal insults, imputations upon the individual, or those having claims to his protection ; to such indignities all might be exposed. The man of fair character might smile at the charge of theft or perjury, but stand ready, at the peril of his life, to resent a personal insult or indignity to himself or his wife or other relative. The insulting character,of the words does not depend upon their truth or falsehood. They may be true, and their very truth give venom to, the sting of insult. Eor such insults the legislature, intended to provide a remedy, -and, by doing so, to deprive the offender against the duelling law, of the plea he offered in extenuation of his course: that , the laws of his country afforded no adequate redress for insults ■ and injuries to the wounded feeling of an honourable man. The statute declares “that all words which, from their usual construction and common acceptation, are considered as insults, and lead to violence and breach of the peace, shall hereafter be actionable, and no plea, exception or demurrer, shall be sustained in any court within this commonwealth, to preclude a jury from passing thereon, who are hereby declared to be the sole judges of the damages sustained;” with a proviso giving the courts the right to grant new trials. Rooking to the policy of the statute, what constitutes the gravamen of the action given by it? Clearly, it seems to me, the insult to the feelings of the offended party. The court cannot say, whether the words are or are not insulting; that depends on the place, the manner and circumstances in which they are uttered. The literal meaning of the words may import praise; but, if spoken ironically and with intent to wound, they may amount to the keenest .insult. A man in that society where insults are most sensibly felt, may be told he is unfit for such company,' that he is not a man of veracity; or his intellect may be disparaged in insulting terms: for such injuries the law intended to ^provide redress. But if he sues, and is met with a plea of justification, and his whole life is to be investigated before an assembled community, his feelings would be doubly outraged. The law which proffers redress for insult, would furnish the opportunity of aggravating the outrage, and be itself an insulting mockery, So, in regard to allusions to personal defects, family misfortunes, and the like; insulting, and tenfold more so because of their truth. Were such insults intended to be redressed? The maxim, that where the words spoken are true it is damnum absque injuria, cannot apply, it seems to me, to actions under this statute. The insult is the ground of action, and that the law considers injurious, whether true or false. No good can result, either to society or individuals, from tolerating insulting language. It imports nothing to society that a man’s personal defects, his family misfortunes, his mental peculiarities, &c. should be insultingly proclaimed to him. Whenever such insults are given, the jury are to pass upon them. No plea is to be received to preclude them from passing on the fact whether the words were spoken, whether from their usual construction and common acceptation they are insulting, and if so, what damages shall be allowed. But if a plea of justification is allowable, if true it bars the action, and no matter how insulting the words, or how great the damage, no redress can be afforded. It is said that if the statute is to receive this construction, words actionable at common law are also insults, and cannot be justified. To this it may be answered, first, that the statute does not in terms change the common law as to words theretofore actionable; and secondly, the legislature may very well have intended to leave cases of that kind as they were at common law. Crimes are rarely imputed without some ground of suspicion. If the party charged has been guilty, duty to society may justify the promulgation of the fact, that others may be on their guard against the perpetrator. No such excuse can be ^alleged for insults. It seems to me, the expression of the law that no plea, exception, or demurrer shall be sustained to preclude a jury from passing thereon, extends to pleas of justification; and that, unless we give such construction to the statute, the whole object of the law will be defeated: whereas the other construction tends to advance the policy of the legislature. By subjecting the party to an action for the insult, without regard to the truth or falsehood of the insulting language, insults are repressed, and the controversies from which duels most generally arose, will be of rare occurrence.

With respect to the motion for a continuance: if the question were open, I should be of opinion, that where the law does not give the right to continue, as in cases of revivor against a personal representative, but the application is to the discretion of the court, an appellate tribunal ought not to look into the question whether this discretion was properly exercised. The court below sees the party, hears his statement, and has had an opportunity of forming a correct opinion in regard to his motives. The party who applies is a witness in his own behalf: the application being addressed to the court, it must decide upon the credit to be given to his statements. Men of loose moral character are not restrained in such cases from making affidavits through fear of punishment. The facts, so far as they are open to examination, may be true; the witness may have been summoned, and be absent, without default of the party, and he will say he believes him to be material; but there is no means of ascertaining whether that belief is well or ill founded. It seems to me, the supreme court in Woods &c. v. Young, 4 Cranch 237, laid down the correct rule. The rule, however, has been settled otherwise in Virginia. But I am not disposed to extend it further than the court has already gone, and enquire whether, in refusing to lay a case over to another day of the term, the court has exercised its discretion *properly.. That will depend on an infinite variety of circumstances; the condition of the docket, the business in court, &c. To ascertain whether the court, in refusing to continue until the next term, exercised its discretion properly, we must look at the previous proceedings. At the April term 1837 the issue was made up and a general continuance entered. At September term 1837 the case was continued for defendant. At April term 1838, the defendant moved fora rule against his absent witnesses, and the cause was continued; it does not appear at whose cost, but the iair inference from the previous part of the order is, that the defendant moved for the continuance. At September term 1838, the cause was again continued at the costs of the defendant, and leave given to take the depositions of his witnesses. At April 1839 he again moved for a continuance, and took the exception under consideration. The history of the case is a sufficient reply to the defendant’s objections. Milstead v. Redman, 3 Munf. 219, was a much stronger case for a continuance. There the defendant obtained a continuance at November; at March, there was a verdict for the plaintiff, and a new trial; at May, the cause was continued for the defendant; and at August term, he again moved for a continuance, because of the absence of two material witnesses, who had acknowledged service of the subpoena, and the husband of one of whom stated she was too ill to attend court. The motion to continue was overruled, and this judgment was affirmed. In this case, there had been three successive continuances, as I infer from the orders, at the instance of the defendant. This was the fourth application, and this after leave to take depositions had been given. As to the alleged misunderstanding of the terms of the order, the story is improbable. H,e had just obtained a continuance upon the terms of consenting on the record that the action was not to abate by the death of either party; the parties were personally present in court, and assented to *the entry; and how a party could construe an order made in his presence giving leave to take the depositions of his witnesses, on account of whose absence he •had just obtained a continuance upon submitting to terms, into leave to read depositions taken in another cause, is somewhat surprising. I think he was properly ruled into a trial.

As to the hasty expression of the judge, referred to in one of the bills of exceptions, I pass it with the remark, that the exception is taken to the decision excluding, as I think most properly, the depositions taken in another cause. The expression used by the judge in excluding these depositions was not intended for the jury. So he informed them, and that it should not be regarded by them as any thing in the decision of the cause. Nothing is more common than an instruction to the jury to disregard evidence improperly admitted. The jury is presumed to possess ordinary intelligence, and to be able to discriminate between what is proper for them to consider in forming their conclusions, and what, though occurring in their hearing, is no part of the case. Here the court did all it could do to correct the inadvertence into which it had fallen.

After the verdict, the defendant moved for a new trial, upon the ground that the evidence did not warrant the finding, and because the damages were excessive. The new trial was refused, and the defendant’s counsel drew up a statement of the facts supposed to be proved, and asked the court to examine the statement and add to and correct it, that it might appear of record what facts, in the opinion of the court, were proved on the trial. But the court refused to certify that the statement drawn up was a full and correct statement of all the material facts proved; or to correct the statement, so as to make it conformable to the truth. The reasons given for this refusal by the court in this case, are, I think, conclusive: that the testimony was conflicting, and it was the duty *of the jury to decide upon its credibility ; that it was the province of the court to grant a new trial in cases only where there was no sufficient evidence to warrant the finding; that the decision of the court on a motion to set aside the verdict is evidence of its opinion that the jury had or had not submitted to them evidence, which, according to their belief of its credibility, warranted the verdict; and, therefore, the court overruled the motion for a new trial, because, in its opinion, there was abundance of testimony to warrant the finding, if the jury believed the plaintiff’s witnesses. In this view of the court below, I fully concur. But it was strenuously argued, that enough does appear to satisfy the mind that the damages were excessive, and therefore the judgment should be reversed and a new trial awarded. How can that appear to this court, when the facts upon which the jury proceeded are not before us? But, so far as the facts do appear, it seems to me, the jury may have been fully warranted in the giving the verdict they did. Brooks had filed an answer to a bill preferred against him by a third person: Calloway was called upon to give his deposition, and in doing so, contradicted Brooks’s answer. This may have been unpleasant to Brooks; calculated to excite him; but Calloway, if his deposition was true, was blameless. The law compelled him to give it; and when examined as a witness, if his testimony conflicts with an answer sworn to by a party in the cause, does that authorize an imputation of perjury? It further appears, that after the words charged in the declaration were uttered, Brooks applied to many persons to examine them as witnesses to do away Calloway’s testimony, as contained in his deposition. This he had a perfect right to do, either by shewing the deposition was false, or that the witness has made conflicting statements, or by impeaching his general character. But, to many of the persons so applied to, he represented the statements of Calloway in his deposition as wholly false, and to others 'x'that ,the deposition contained nothing but lies. This course was unwarrantable ; it was calculated to make an improper impression on the minds of those he intended to examine as witnesses. I cannot say, in a case where these circumstances of aggravation appear, that the jury, whose peculiar province it is to estimate the damages, have erred so grossly, as to justify this court in setting aside their verdict, and that too where the judge who heard the testimony refused to disturb it, and where all the facts which operated on their decision are not in the record.

I am for affirming the judgment.

The other judges concurred. Judgment affirmed.  