Petrie v. Rose

[366] The opinion of the Court was delivered by Sergeant, J. In slander the defendant may, for the purpose of mitigating the damages, show that the cause and occasion of uttering the words were circumstances of suspicion known by him, or circulated or acknowledged by the plaintiff, and communicated to the defendant; for these tend directly to excuse or extenuate the conduct of the party, and affect the amount of damages. But to permit evidence going to establish the truth of the words spoken would be settingup a defence of a different kind and more serious nature, and one which, by the established rules of pleading, the plaintiff could not be prepared to expect or to meet on the general issue. If the defendant intends to set up such a defence, he may plead a justification, and then the plaintiff will be prepared to encounter the evidence. It is now settled by the authorities referred to, especially the case of Purple v. Horton, (13 Wend. 9), where the same kind of offer was made, that it is incompetent to a defendant in an action of slander to give evidence, in mitigation of damages, of facts and circumstances which induced him to suppose the charge true at the time it was made, if such facts and circumstances tend to prove the charge, or form a link in the chain of circumstances to establish a justification, even though he expressly disavow a justification. Facts and circumstances may be shown in mitigation only when they disprove malice. The evidence offered in the present case, so far as it was rejected, evidently went to show by circumstantial evidence the fact of the plaintiff’s guilt, and it was therefore properly overruled. The next point that has been made is the rejection by the court of communications by a witness to William Petrie, the husband of Mrs Petrie, of various facts' and circumstances relating to the plaintiff’s conduct. It is said there is a presumption, from the intimate connection between husband and wife, that the husband communicated to the wife the information he had received. It is true there may be such a presumption, but not greater, perhaps, than often exists between other family relations, or even friends; and the argument would apply equally to them. After receiving such evidence, the mind would still be in doubt whether it ever was communicated by the husband to the wife, and could therefore have formed a ground for her uttering the words. We therefore see no error in its rejection. The last question is, whether the depositions to prove the plaintiff’s good character were admissible, and we think as rebutting evidence they clearly were; the defendant’s evidence went strongly to cast an imputation on the character of the plaintiff for honesty. Judgment affirmed.