1851. July Term. Bourland V. off in slander; and referred to McAlexander v. Harris, 6 Munf. 465. 2d. He insisted, first, that it did not appear that the Eidson. plaintiff had introduced any proof as to the charge of having stolen the order from Stofer, and therefore it did not appear that the evidence offered and rejected was relevant. Mc Dowell v. Burwell, 4 Rand. 317; Rowt's adm'x v. Kile's adm'r, 1 Leigh 216; Carpenter v. Utz, 4 Gratt. 270. 3d. That the evidence offered was not admissible under the plea of not guilty. And he said the distinction was between the cases where the action was maintainable without proving special damage, and those where special damage must be proved in order to sus tain the action. In the latter he admitted that any facts might be proved under the general issue which disproved the malice: And such he said were the cases of Leicester v. Walter, 2 Camp. R. 251; Smith v. Spooner, 3 Taunt. R. 246; Watson v. Reynolds, 22 Eng. C. L. R. 231; Rowe v. Roach, 1 Mau. & Sel. 304; Wyatt v. Gore, 3 Eng. C. L. R. 111; Sims v. Kinder, 11 Eng. C. L. R. 392. But that where the words were actionable without proof of special damage the rule was that such evidence was not admissible under the general issue. And he referred to Vessey v. Pike, 14 Eng. C. L. R. 420; Dance v. Robson, 22 Id. 311; Waithman v. Weaver, 16 Id. 412; Van Ankin v. Westfall, 14 John R. 233; Shepard v. Merrill, 13 John R. 475; Wormouth v. Cramer, 3 Wend. R. 395; Henry v. Norwood, 4 Watts R. 347; Petrie v. Rose, 5 Watts & Serg. 364; Purple v. Horton, 13 Wend. R. 9; Cooper v. Barber, 24 Wend. R. 105; Eagan v. Gantt, 1 MeMul. R. 468; McGee v. Lodusky, 5 J. J. Marsh. R. 185; Hart v. Reed, 1 B. Munroe's R. 166; Buford v. McLuney, 1 Nott & McC. 268; Cheatwood v. Mayo, 5 Munf. 16: McAlexander v. Harris, 6 Id. 465; Moseley v. Moss, 6 Gratt. 534. BALDWIN, J. I shall treat this case, in the first place, as if it were exclusively an action for slander at common law. The case was tried upon the general issue, and the questions presented by the record are in reference to evidence offered by the defendant, and rejected by the court, in mitigation of damages. The authorities in regard to the evidence proper under the general issue, in mitigation of damages, are numerous, and a good deal conflicting; and the difficulties. which have embarrassed the courts seem to have arisen out of opposing considerations, entirely proper in themselves, but often hard to be reconciled the propriety and justice, on the one hand, of submitting to the jury the ungarbled merits of the controversy, so as to enable them to give to the plaintiff the full damages he ought to recover, and no more; and on the other hand, the policy and necessity of excluding evidence irrelevant. to the substance of the grievance, or to the issue joined between the parties. If It is obvious that the purposes of justice require us to look as far as practicable to the conduct and motives. of both parties in connection with the subject matter of the grievance, in order to estimate fully and fairly the amount of damage sustained by the one, and of retribution which ought to be made by the other. the plaintiff has been free from blame, and has been made the victim of the defendant's cool and deliberate malice, the case presented is widely different from one where the plaintiff has, by his own misconduct, occasioned or provoked the injurious imputation, or where the defendant, though subject to the legal inference of malice, from the criminality of the imputed act, and the falsehood of the charge, has been prompted in making it by a plain mistake, without his default, as to the nature of the plaintiff's conduct. And the soundness of any mere technical reasoning may be questioned which, 1851. July Term. Bourland V. Eidson. 1831. July Term. Bourland Eidson. against the plain dictates of common sense, would place cases so dissimilar in complexion upon the same footing as to the quantum of damages. The elements of redress in the action for defamation are the wrong done to the plaintiff, and the malice or vicious intent of the defendant: these modify each other, and are modified by circumstances, so as to allow much scope for the judgment and discretion of the jury, upon a subject somewhat indefinite in its very nature, the amount of pecuniary compensation which ought to be paid for an injury of such a character. Whatever, therefore, tends to throw light upon the question ought, within fair and reasonable limits, to be brought, in some form or shape, to the consideration of the jury. It is of course under the general issue that evidence must be offered which presents no bar to the action, but tends only to mitigate the damages. At one period, indeed, the idea seems to have prevailed to a considerable extent, that whenever the defendant's evidence answered the whole ground of the plaintiff's action, it was admissible under the general issue, and therefore (I presume) that as some occasions of speaking or publishing defamatory words divested them of the essential of legal malice, so proof of their truth took away the equally essential ingredient of their alleged falsehood. And so the truth of the defamatory words was so repeatedly admitted in evidence under the plea of not guilty as to become, in the opinion of the judges of England, a mischief in practice requiring correction. Accordingly, in the case of Underwood v. Parks, 2 Strange 1200, in which the defendant pleaded not guilty, and offered to prove the words to be true, in mitigation of damages, the chief justice refused to permit it, saying that at a meeting of all the judges, upon a case that arose in the Common Pleas, a large majority of them had determined not to allow it for the future, but that it should. be pleaded, whereby the plaintiff might be prepared to defend himself, as well as to prove the speaking of the words: That this was now a general rule amongst them all, which no judge would think himself at liberty to depart from; and that it extended to all sorts of words, and not barely to such as imported a charge of felony. The rule thus adopted has since been recognized both in England and in this country, is sustained by nume rous authorities, and I believe has never been denied by any judicial decision. But although the rule of Underwood v. Parks has been thus universally admitted, yet its spirit has, as I conceive, been often broken in upon by decisions and dicta, both in England and in this country. It has been repeatedly said and held that, under the general issue, evidence may be given in mitigation of damages, which stops short of a complete justification. Now this surely cannot be considered as an exception to or modification of the rule of Underwood v. Parks, but is in effect, though not so designed, a practical negation of it; for where is the line to be drawn between perfect and imperfect proof of the plaintiff's guilt; and upon what principle is light evidence to be preferred to that which is cogent and conclusive? What is the admission of such evidence but an invitation to the jury to act upon suspicion instead of proof? And indeed that aspect is given to the proposition by some of the authorities, which assert that circumstances of suspicion may be received in mitigation of damages. The rule which excludes proof of the truth of the words must of necessity exclude evidence tending to prove it, or the rule itself is rendered nugatory or merely mischievous. · And so is the preponderance of authority, both English and American. See the cases referred to in 3 Stephens' Nisi Prius 2255-6, 2253, 2519; 2 Stark. Ev. 877-8; 1 Stark. Sland. 413, n. ; 2 Id. 78 to 89-American editions of those works; Root v. King, 7 Cow. R. 613; VOL. VIII.-3 1851. July Term. Bourland V. Eidson. 1851. July Term. Bourland V. Eidson. Gilman v. Lowell, 8 Wend. R. 573, in which most of the cases are reviewed. Indeed, nothing but an anxiety to get at the supposed merits of the case could have misled some judges into so obvious a deviation from the principle of Underwood v. Parks; and it is remarkable that others, while condemning and overruling such departure, have at the same time received other evidence of the same general nature, but still more objectionable. I allude to the admission of evidence to prove that the plaintiff laboured under a general suspicion of having been guilty of the charge, or of rumors imputing to him such criminal acts. It may be easily seen that the effect of such evidence, when a party comes into court for the purpose of establishing his innocence, and so putting down false rumors of his guilt, may be to crush him under the weight of those very rumors. And yet the current of English authority allows the introduction of such evidence, upon the supposition, it seems, that it goes to the character of the plaintiff, though it surely does not, in the legal acceptation of the term, if general character be meant. On the other hand, the weight of American authority, with better reason, it seems to me, excludes such evidence. See the cases pro and con, referred to in 2 Stark. Ev. 877; Phillips' Ev., vol. 3, p. 249, 250; 2 Stark. Sland. 96-7-American editions. of those works. It seems to me, therefore, that evidence is not admissible under the general issue, in mitigation of damages, which proves, or tends in any form or shape to prove, the truth of the words. On the other hand, I cannot doubt that where the defamatory words point to a specified act of the plaintiff, and the evidence offered in mitigation of damages neither proves, nor tends to prove, or upon the whole negatives, the truth of the words, it is admissible where it serves to shew improper conduct of the plaintiff in re |