But it is now discovered that although true it is this evidence cannot be admitted to justify, yet it ought to have been admitted in mitigation of damages.

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KENNEDY

V.

It is truly said by Lord Mansfield, Burr. 1990. that favourable GREGORY. cases make bad precedents. Because on the trial the inclination of my mind was rather against the plaintiff, does it follow that I must incline to the admission of evidence, which I believe to be contrary to the rules of law properly understood and applied to the subject matter? In Strange 1200. in an action for words, on not guilty, defendant offered to prove the words to be true in mitigation of damages, which the Chief Justice refused to permit, 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 sort of words, and not bare"ly to such as imported a charge of felony."

I challenge ingenuity to point out one evil which would result from such evidence being given as matter of justification, which would not follow to almost the same degree, were it allowed in mitigation of damages; it would certainly follow to a very great degree.

A man whose declaration or even significant hint will be extensively believed goes round and makes such a representation of the plaintiff as in a short time reduces him and his family to the want of bread. The injured party brings an action against the man who has thus injured his reputation; the propagator of the slander lies by till the day of trial, and then he brings forward evidence to prove that some vile wretch, perhaps whose censure would be praise, told him the words which on his credit have been believed from the time he uttered them, but which, had he at first mentioned his author, would have been deemed unworthy of the least credit. But supposing the man who told the defendant the words, to be of equal credit with himself or even better, by his lying by till the trial the act of limitation takes place, and the injured man has no remedy against the original slanderer under whom the slanderer has sheltered himself: this will be the general effect of the evidence

M

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offered, if admitted. If such evidence would lessen the damages one cent, it would so far deprive the plaintiff of an adequate remedy against the authors of his ruin. But in this case there is GREGORY. an additional reason against its admission. Two or three days after speaking the words, plaintiff and defendant both called at Samuel Brewster's, who repeated the words of which he gave evidence on the trial; even then defendant did not give a hint that any other person had mentioned them to him.

I conclude therefore that evidence cannot be given either in justification or in mitigation of damages, that a third person, not named at the speaking of the words, mentioned them to the defendant. A contrary decision or construction would open a school for scandal throughout the state.

At the trial the inclination of my mind was that there was not a sufficient proof of malice; but this was a fact arising from the evidence properly and solely within the coguisance of the jury. Their verdict proves that there was malice in defendant; and as juries as well as individuals are the best judges within their own exclusive province or profession, reflection induces me to believe that in this instance their judgment was more correct than mine.

Malice, malignity of mind, may be evinced in a thousand different ways. The defendant went round with the schoolmaster, by whom he wished to supplant the defendant, to different employers, and by sly insinuations did him as much injury as if he had made the most direct and pointed charge.

BRACKENRIDGE J. continued of opinion that the evidence should have been admitted in mitigation of damages. He assented to the law as laid down by Judge Smith with respect to pleading in justification, but thought it did not apply to the case. He was also of opinion that the verdict was against the weight of evidence.

Rule absolute. (a)

(a) Since the appointment of Chief Justice TILGHMAN, the opinion of the court in the case of Kennedy v. Gregory, has received his sanction in the following case at Nisi Prius.

MORRIS against DUANE.

IN this cause, which was an action on the case for a libel, tried before Tilghman C. J. at Nisi Prius March 21st, 1808, the defendant offered in evidence a writing, purporting to be the copy of an anonymous letter which

Lessee of JENKS against BACKHOUSE.

UPON

1803.

Saturday, December 31st.

estate in Pennsylva

in case of in

PON the trial of this ejectment before Shippen C. J. and A trust Smith J. at a Circuit Court for Bucks in May 1802, the plaintiff shewed a regular title to the premises in question, nia descends being part of a large patent, in Lawrence Growdon, who by his testacy, to will devised the residue of his estate, including the lands in the heir at controversy, to his two daughters Grace and Elizabeth. Elizabeth and Thomas Nicholson her husband, and Grace and Joseph Galloway her husband, who in his own right was entitled to one

from certain marks on the back of it was inferred to have been in the possession of B. F. Bache, and upon his death to have come to the defendant who succeeded him as editor of the Aurora in which the libel was published. The death of Mr. Bache and the defendant's succession to the newspaper were prior to the libel; and the object of the writing offered was to mitigate the damages by shewing that the defendant was not the inventor of the charge he had published against the plaintiff, but that this writing was in his possession at the time and led to the publication.

The principal argument offered by Hopkinson for the defendant was this: That the libel being charged in the declaration to have been maliciously and falsely devised as well as printed and published by the defendant, though it was not necessary for the plaintiff to prove the whole charge, yet the consequence of proving the whole would be damages proportionally high. It therefore was material to shew that the charge was not devised by him, for he thus shewed that the degree of malice was at all events less than if he had devised it. It could not be given in evidence to maintain the plea of not guilty; it was in strictness no justification, and therefore as it was material he should be allowed to offer it to the jury in mitigation of damages. He cited the case of Kennedy v. Gregory, and Prick's case Cro. Jac. 91. in Brook v. Montague.

The objections to this evidence by Lewis and Meredith who were of counsel with the plaintiff were, that the libel published by Duane contained no reference to a letter or to any other source of information, but was a substantive charge proceeding exclusively from himself, and therefore it should fall exclusively on himself; that in point of law the malice was proved conclusively by the false publication, and it was altogether irrelevant to shew an absence of personal malice, and of course a less or greater degree of it. That it could not legally weigh a particle in the defendant's favour that he had such a paper, when he had attempted to poison the mind of the public by stating the charge unequivocally and without reference. That on the contrary it aggravated the offence, as the reference might have furnished the plaintiff an opportunity of rescuing his character, by exposing the source from which the calumny proceeded. The case from Cro. Jac. was altogether different. There a clergyman recited from his pulpit a story from

common law.

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twenty-fourth of the patent, executed a deed of partition, and allotted and granted the premises in question by certain numbers, to Joseph Galloway and Grace his wife and to the heirs of Grace; certain other numbers to Nicholson and his wife, and certain other numbers to Joseph Galloway and his heirs. The deed was duly acknowledged. At the time of the partition Galloway and wife had issue Elizabeth. Galloway was afterwards attainted of treason, and removed from Pennsylvania to Great Britain, where at the time of trial he remained in full life. After his attainder and departure, his wife died in Pennsylvania, having by her will devised the premises to Abel James, from whom they came to Thomas Jenks, in trust for Elizabeth Galloway the daughter and her heirs. Thomas Jenks died intestate

Fox's Martyrology, that one Greenwood for his perjuries and crimes had been killed by the hand of God. Greenwood was in church at the time, and afterwards brought an action for the words. But the clergyman pleaded not guilty, and it was held the action would not lie, by reason of the occasion of publishing the words. (The case of Kennedy v. Gregory was not in court, and therefore was not noticed.)

TILGHMAN C. J. This point is not new to me, it has occurred on the circuit and been considered though not absolutely decided by me. The effect of any evidence which a defendant may offer is with the jury; the competency of it, with the court. The question in this case is, whether the defendant is entitled to offer to the jury this letter, with the explanations, for any legal purpose connected with the cause. It certainly cannot be offered to prove the plea of not guilty; and it is no legal justification. But still, is it not material? Can it be, that like damages should be given against two defendants, one of whom received his information from such sources as were entitled to a certain degree of credit, while the other devised it by his own wicked imagination? I think it cannot. Such evidence certainly goes to the degree of malice, and must weigh with the jury according to the circumstances which attend it. Whether these circumstances are such as ought in reason to mitigate the damages, they will decide. In the case of Williams and wife v. Mayer and wife, (Circuit Court, Mifflin county, May 1806) I expressed the inclination of my mind, that the defendants who were sued for slander in charging the plaintiffs with felony, might on general principles give evidence of circumstances which had induced a suspicion of felony: although in that case the evidence was clearly admissible by way of rebutting something which had been proved, in order to aggravate the damages, by the plaintiffs, and therefore the general point was not decided. Since that I have observed in 2 Peak's Comp. of Evid. 287. it is said to have been ruled by Eyre C. J. in the case of Knobel v Fuller, that the defendant may in mitigation of damages prove, on the general issue, such facts and circumstances as shew a ground of suspicion not amounting to actual proof of the plaintiff's guilt. I adhere to the opinion which I had formed in the case of Williams v. Mayer, and admit the evidence.

leaving six children; but the lessor of the plaintiff was his oldest son, and heir at common law. The defendant derived his title under the agents of forfeited estates, who upon the attainder of Galloway, sold the premises for his life, supposing him to be so entitled as tenant by the curtesy; but this court having decided (a) that by his attainder the estate of Mrs. Galloway was discharged of the curtesy, this ground was not taken by the defendant. He however resisted the plaintiff's claim upon two other grounds: First, That in Pennsylvania a trust did not descend to the heir at common law, but to all the brothers and sisters under the intestate laws; and that therefore the recovery could be but for one sixth at most. Secondly, That the deed of partition conveyed a life estate to Galloway.

A verdict was taken for the plaintiff generally, subject to the opinion of this court upon two points reserved, which were the defendant's two objections; and they were now argued by Hopkinson and Tilghman for the plaintiff, and by Ross and the Attorney general for the defendant.

For the plaintiff it was contended on the first point, that a trust descends in Pennsylvania as it does in England, and is not contemplated in any of the provisions of the intestate law. They relate exclusively to the beneficial estate. The acts of Assembly which govern this case give the eldest son two shares, the widow her third or moiety, the other children their respective portions; in certain cases they order a valuation, and what is a striking feature, they expose the whole of the intestate's estate, which is in any manner the object of the law, to the payment of his debts. 1 St. Laws App. 44. 47. It is impossible that a mere trust should be embraced by such provisions. The acts of Assembly are to be construed like a will, in which a general devise of all a testator's estate does not pass a trust. Attorney general v. Buller. (b) Neither will a general assignment by a bankrupt pass a debt due to him as trustee. Winch v. Keeley. (c) The argument ab inconvenienti in our case is very strong; and our judicial decisions recognise the heir at law for various purposes not within the intestate law;

1803.

Lessee of
JENKS

V.

BACK

HOUSE.