Mr. Aaron Ogden, for the plaintiff in error, contended-that the court of common pleas over-ruled legal evidence; that the evidence offered in the first place, went to shew the want of malice-and, therefore, proper under the plea of not guilty. And second, that it was proper, by way of mitigation of damages; that as the plaintiff might aggravate, so the defendant might extenuate; that the evidence of Harriot was in aggravation; that words not charged in the declaration, but given in evidence by way of aggravation to increase damages, may be proved to be true under the general issue, the defendant never before having an opportunity to answer them, for which he cited Bul, 10.

Mr. Isaac H. Williamson, for the defendant in error, contendedthat under the plea of not guilty, the truth cannot be given in evidence even in mitigation of damages; for which he cited Bul. 9, 10.: that the slander having been reported in the neighbourhood, could not be set up as an excuse by the defendant below, to which point he cited 5 Com. 605, Pleader 2 L. 7, Sayer Rep. 266, 12 Coke 153, Northampton's case.

Mr. R. Stockton, on the same side, contended-that there was no distinction between evidence by way of defence, and evidence in mitigation of damages; that under the cover of evidence by way of miti gation of damage, evidence in justification such as goes to the defence cannot be introduced.

Mr. Maxwell, in reply. The examining witnesses, to prove the transaction before the Presbytery in order to shew malice and in ag gravation, authorised the defendant below to prove all the transactions before the Presbytery in order to repel it. Subsequent words may be given in evidence by way of aggravation, but this testimony may be rebutted by a disclosure of the whole transaction.

Kirkpatrick, Ch. J. This is an action of slander. The defendant pleaded not guilty; and gave a notice of particulars, in order to let in the special case. This notice, however, is so unskilfully drawn, that all benefit under it was waived at the trial, by the defendant's counsel, and I think rightly so. The cause, therefore, stood simply upon the plea of not guilty.

The defendant, under this plea, at the trial, offered several matters in evidence, which were over-ruled by the court; and a bill of excep

tions was thereupon taken, and upon error brought in this court. The question is now upon the matter contained in that bill.

The substance of the objections to the proceedings of the court below, drawn from this bill, is

1st. That they over-ruled evidence offered by the defendant below, to prove that he only repeated what had been said by others. And 2d. That they admitted evidence of what passed before a certain Presbytery of the church, in part against the defendant; but overruled evidence of what passed in the same church judicatory in his fa

your.

As to the last of these, it does not seem to me to be grounded in the record. It is true, that some of the witnesses detailed certain things which happened before the church judicatory; but there was no objection raised to this by the defendant below. As soon as exception is taken to the detailing of the proceedings, then the court over-rule it, and I think rightly.

The cause will turn, therefore, according to my view of it, upon the single question, whether upon not guilty in an action for words the defendant can give in evidence, either in verification of the plea, or in mitigation of damages, that he only repeated a current report, or that certain other persons had publicly declared the same thing.

And upon this question, the resolution of the court in Northampton's case, 12 Coke 134, seems to me to have laid down the principle which has been followed ever since.

In one view of the subject, this may appear to be a rigid rule, that he who repeats shall be subject to the same damages as he who invents and propagates a malicious slander; yet when it is considered, that the action is not for the punishment of the slanderer, but for the remuneration of the injured, I think it will change its aspect. If A utters to the world a slander, which deprives me of my good name and reputation, and even of the means of obtaining a livelihood, does it at all make up my loss to tell me he had the story from others? I think not. Be the reason of the rule however as it may, as far as I have had opportunity to trace the course of decisions upon the question, they seem to me uniformly to have recognized this principle, that on not guilty in actions for words, common fame cannot be given in evidence. I believe there is wisdom in the rule; and if it were otherwise I cannot change it!

I am of opinion therefore, that the judgment be affirmed."

Rossel, J. It is assigned for error in this cause, that the court of common pleas for the county of Somerset, admitted illegal, and refused to admit legal testimony. On the fullest consideration of the subject I have been able to give it, I am of opinion, that no evidence was admitted by the court below, but what is warranted by law in suits of this nature.

1st. On the refusal of testimony by the court, it is alledged that the defendant offered to prove the truth of the words charged in the declaration, which testimony was over-ruled. I take it to be indisputable law, ever since the decision of the court in the ease of Underwood vs. Sparks, as laid down by Chief Justice Lee, in Strange, 1200, that the truth of the words in an action of slander, shall not be given in evidence on a plea of not guilty.

2d. That the defendant offered to prove by A. Cave, that she had informed Esquire D'Groat of the facts proved; and that this was the cause of the meeting of the Presbytery-which was over-ruled.

3d. That the defendant below, offered to prove the confession of the plaintiff himself, that those reports were in existence, and that they originated in the family of the said David Barkley.' This was also over-ruled.

In support of all these decisions of the court of common pleas, it has been urged by the counsel for Mr. Barkley: That the action was not brought for words spoken as a report, but as a fact; that the defendant, at the time of speaking the words, should have given his author, or he is precluded from doing so afterwards: That every per. son is answerable for the slander he reports of another; and that common fame of the truth of the report shall not be enquired intofor it might have originated with the defendant-and he would, in that case, be permitted to shelter himself under his own guilt and cunning, and avoid the punishment he justly deserved. In confirmation of these ideas, 5 Comyns 605, Sayre's Reports 266, and 12 Coke, 154 have been cited. The reference to Comyns is under title plead er, and the author, in giving directions on that head, says: "So it is no plea that the plaintiff was not of good fame, or that there was a common fame that he was guilty." But I confess I cannot understand this authority as precluding the defendant from giving in evidence cir cumstances to palliate his offence, and in mitigation of damages.

As much of the case cited from Coke, as is applicable to the present, is briefly this: The Attorney General informed against six persons therein named, for "speaking and publishing divers false and horrible scandals against the Earl of Northampton." At the hearing of this cause eleven judges were present; and it was then resolved, "that in a private action for slander of a common person-If J. S. published generally without à certain author, that J. G. was a traitor or a thief, an action sur le case lieth against him; for that he hath not given to the party grieved any cause of action against any but himself, who published the words."

For the publication of the scandal aforesaid, all the defendants in this cause were punished by fine and imprisonment-But Goodrick and Ingram (two of the six) were fined the most, for that Goodrick had no authority for the words concerning the cinque ports; nor could Ingraham find any authority to vouch that he had heard them: therefore, it was taken as a fiction of his own.

This authority then, both in reason and in fact, makes directly against the decision of the court of common pleas. Four of the defendants were permitted to show that they had heard from others the reports they circulated; and although this was not in the opinion of any of the eleven Judges a complete justification, it was considered by them as a mitigation of the offence; and they therefore, were not punished so severely as Goodrick and Ingram, who could make no such proof, and who were supposed to have raised the report themselves.

In the case now before us, the defendant below did, in his conversation (as stated in the declaration, with Jeremiah Fisher, the princi pal witness on the part of the plaintiff) give Howell's boys as his authority, and in support of his allegations. Robert Hughes, another witness, also states, that at the conversation alluded to by Fisher, he was present, and that the defendant said, a man told him he would swear he had seen the plaintiff by the board fence, &c. and thinks he mentioned Mr. Bush. The defendant is not, therefore, strictly within the reason of the rule laid down in Northampton's case-more especially if he could make it appear that the plaintiff knew those reports were in circulation, and the person with whom they originated. But he is completely within the rule of distinction by which the Judges were guided: that if he could prove he was not the original

publisher of the scandal for which he was prosecuted, his offence, and consequently his punishment, would be lessened.

In Buller's Nisi Prius, page 9, it is stated in the case of Smith vs. Richardson, that upon a plea of not guilty, the defendant may give in evidence the manner and occasion of speaking the words in mitigation; so he may give in evidence a confession of the plaintiff that he was an accessary.

For (says the authority) he could not plead this in bar. Here then the general rule appears to be, that if the defendant is in possession of any facts which could be properly pleaded in bar, he shall set them forth in his pleadings, that the plaintiff may be enabled to give contrary proof, or to reply several things of which he would lose the benefit on the general issue. But where any circumstances attend the slander, which go to lessen the degree of malice supposed to have actuated the defendant in the propagation of it, but which do not amount to a complete justification-and cannot, therefore, be plead in bar, he is allowed to give them in evidence on the general issue, in mitigation or otherwise he would lose all the benefits which ought to arise from any extenuating circumstances.

It cannot be contended, that it would have been a plea in bar to the present action for the defendant to have proved that he heard from another the scandal he had reported-for in the book last cited, page 10, in an action brought by a master of a ship against a merchant, for saying his vessel was seized, and he put in prison, for running corn, it was held by Lord Chief Justice Lee, that the proof of the defendant's having heard it read out of a letter was no justification; but that every person was answerable for the slander he reported ; but he might, according to the rule above stated, and probably did, (I say probably, for we have not the whole case) give it in mitigation.

The gist of an action of slander, for words in themselves actionable, is the malice which produced them; take away this, and the suit is not sustainable in any shape It rationally follows then, that as there are degrees of malice, the punishment inflicted on the slanderer, should be in just proportion to the degree proved; and as it is always allowed in actions of this nature, for the plaintiff to give in evidence that the slander was repeated, to show it was malicious-and also that the defendant had used other expressions of ill will: Should not the defendant then, on every principle of justice, be permitted, if he can,