adjudged cases; but no such thing was attempted. The supreme court, however, close on this point by saying, that if the evidence of general character had been offered on the general issue only with a view to show there was no malice in the defendants, because in reality they only repeated what every one else did, and what the plaintiff's conduct led them to believe was the truth, a very different question would have been presented. The court, in making this distinction, appear to me to lose sight of the object for which proof is offered in respect to general character. The object of introducing such proof being to enlighten the minds of the jury on the subject of damages, there may exist the same necessity for such proofs in a case in which a justification has been pleaded with the general issue, as where the latter plea stands alone. A failure to sustain a justification does by no means prove the general character of the plaintiff to be good. I cannot, therefore, discover any reason why the jury should give the plaintiff more damages than his character really deserves, on the ground that the defendant has failed to sustain the particular charge according to his plea. Such a result would however be unavoidable in many cases, if proof as to general character is to be rejected in all cases where the defendant sets up a justification, with a plea of the general issue.

Before closing, I will refer to a few of the leading cases which will be found to bear upon the subjects discussed.

In Starkie on Slander, p. 410, it is said, "Though circumstanaes inducing a belief of the plaintiff's guilt in the mind of the defendant take away considerably from the malignity of his intention, yet, since they do not amount to a justification, there is still a residuum of malice sufficient to support the action."

Larned v. Buffinton, (3 Mass. R. 546,) was an action for slander: plea, general issue, and justification. The defendant, in mitigation of damages, offered to prove that the plaintiff left

his father before he was of age, and without property; that he was a transient or roving man; unmarried; lived in many places successively; traded horses; butchered, and drove cattle, and owned no real estate. This evidence was rejected on grounds perfectly consistent with those which I have advanced. Chief Justice Parsons places the rejection on the ground that the rule of law in such cases will not admit particular facts which were pertinent to the question of general character; and further, that the particular facts stated, if proved, would not have any tendency to mitigate the damages. The judge expressly admits that under the pleadings the plaintiff's general character was put in issue, but not the particular facts stated, and that the knowledge of those facts was wholly immaterial to the jury in meting out damages. He then proceeds to state a sensible distinction between circumstances proper under the general issue alone, which ought to be rejected under the general issue and a justification. In the former case, he may show the words spoken in the heat of passion. This he would reject under the justification, because they were inconsistent. He adds as follows: "But we are not prepared to declare that there are no facts or circumstances for which the jury may mitigate the damages under a special justification of the truth of the words in which he shall fail. Where, through the fault of the plaintiff, the defendant, as well at the time of speaking the words as when he pleaded his justification, had good reason to believe they were true, it appears reasonable that the jury should take into consideration this misconduct of the plaintiff to mitigate the damages." The principle advanced in this extract appears to me as fully warranting the admissibility of the probable cause in mitigation, which I have contended for in the case under review in this court. The observation of the learned judge relative to a supposed inconsistency between certain circumstances admissible under the general issue, and to be rejected under a justi

fication being confined to the example he gives, i. e. of words spoken in the heat of passion, and to cases similar in principle, I fully concur in his position, and find nothing in the opinion but what confirms me in the views I have advanced above at large.

In the case of Wolcott v. Hall, (6 Mass. R. 514,) the plea was a justification only. The evidence offered and rejected, was not of general character or of just grounds of suspicion, but of particular reports, i. e. that R. B. had charged the plaintiff with stealing cheese, and that E. G. had charged the plaintiff with stealing wood. Ch. J. Parsons decided that the testimony was properly excluded, not on the ground stated in 2 Cowen, 813, by Mr. Justice Sutherland, because the defendant had justified, but solely on the ground that particular reports.could not be received under any state of pleadings. "Evidence of general character," he says, "was not offered," plainly intimating, that if offered, even under that plea, it might have been received.

In Selwyn's N. P. 904, it is stated, "That when the facts to be proved on the part of the defendants do not constitute a complete justification, as when they show a ground of suspicion not amounting to actual proof of the plaintiff's guilt, such facts may be given in evidence under the general issue in mitigation. In note 12 of the same page, it is said that in Elmer v. Merle, before Lord Ellenborough, which was an action for words of insolvency, the defendant was permitted to prove, that at the time there were rumours in circulation, that the plaintiff's acceptances were dishonoured; and in a case before Le Blanc, justice, that learned judge received evidence under the general issue, that the defendant had been guilty of attempts to commit the crime imputed to him. (2 Cambp. N. P. 253, 4.) In the case of the Earl of Leicester v. Walter, (id 251,) the defendant was permitted to show that before, and at the time of the publication complained of, the

plaintiff was generally reputed to be guilty of the crime.

The case of Alderman v. French, (1 Pick. R. 1,) is relied upon by the plaintiff below, as establishing the doctrines of the supreme court in this case. The act of the legislature of the state of Massachusetts, passed in 1826, ch. 107, considered in connection with that decision, certainly shows that the argument makes strongly against the plaintiff here. By the second section of that act, it is provided, that when the defendant pleads the general issue, and also in justification, that the words spoken were true, such plea in justification shall not be taken as evidence that he spoke the words. It further provides: "Nor shall such plea of justification, if the defendant fails to establish it, be of itself proof of the malice of such words; but the jury shall decide upon the whole case, whether such special plea was or was not made with a malicious intent." To show the weight which is to be given to a declaratory act like this, I cite the words of Kent, justice, in The People v. Croswell, (3 Johns. C. 375 :) “Although I admit that a declaratory statule is not to be received as conclusive evidence of the common law, yet it must be considered a very respectable authority in the case.'

In Bodwell v. Osgood, (3 Pick,379,) the action was for a libellous communication addressed to the committee of a school district, charging the plaintiff with a want of chastity. It was put to the jury to decide whether the act was malicious or not, and they were instructed "to find for the defendant, if they should be of opinion, from the evidence, that he acted from honest intentions, and believed that the charges in the supposed libel were true." The deliberate publication of calumny, when the publisher knows it to be false, or has no reason to believe it to be true, is conclusive evidence of malice. It is clear that in the class of cases in which this ranges itself, the question of malice is exclu sively for the jury."

In Kennedy v. Gregory, (1 Binney's Penn. R. 85,) it was decided by a majority of the court, that in an action for slander under a plea of the general issue and justification, when the proof is, that he defendant, in reply to a question implicating the plainliff, answered, either "It is so," or " They say it is so," the defendant may give in evidence in mitigation of damages, that a person told him what he related. The reporter adds further: It seems also that when the slander is spoken without reference, the defendant may, in mitigation of damages, show that the slander was communicated to him by a third person. Morris v. Duane, reported in the same volume, page 90, is a still stronger case. The action was for a libel-plea, the general issue with a justification. Defendant offered to prove in mitigation, that he was not the original composer of the libel; but succeeding an editor then deceased, found the libel among the papers of the deceased on taking the office, and so published it. The reasoning of Chief Justice Tilghman is so solid and judicious in showing the propriety of such proof in mitigation, and so fully establishes the views which I have advanced in the case under consideration, that I shall insert the substance of it. "This case," he says, "is not new to 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 explanation for any legal purpose connected with the cause. 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 of his own wicked imagination? I think it cannot. Such evidence certainly goes to the

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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."

I deem it unnecessary for me to go through the whole range of cases adjudged in England on this subject. I acknowledge, that though there is a great clashing of authority on these subjects even there; still very many of their decisions tend to establish those rules of exclusion of light from the conscience and judgment of jurors which are sought also to be established here by the plaintiff. I admit that in a few recent cases, the supreme court of our own state appear to have shown a disposition to follow in this respect, without discrimination, the precedents established in some cases in the English courts; and it is now for the first time presented distinctly to this court of the last resort, to say, by the determination of this cause, whether, in this state, rules shall be adopted so obviously drawn from foreign tribunals; or that rules shall prevail, which I trust I have shown to be founded in sound sense, and to harmonize with the spirit of our own institutions.

My opinion therefore is, that the judgment of the supreme court ought to be reversed, and that a venire de novo should be directed to be awarded.

On the final question being put, shall the judgment of the supreme court be affirmed or reversed? the members of the court ranged themselves as follows:

For affirmance-The Chancellor, Senators E. B. Allen, S. Allen, Eaton, Hager, Hubbard, McCarty, McLean, Oliver, Rexford, Sanford, Schenck, Stebbins, Throop, Todd, and Warren, -16.

For reversal-Senators Boughton, Mather, Maynard, and McMartin, 4. Whereupon the judgment of the supreme court was accordingly affirmed, with costs.

The defendant having confessed lease, entry, and ouster, Mr. Oakley opened the cause for the plaintiff.

Plaintiff's counsel gave in evidence a patent from King William III. to Adolph Philipse, bearing date the 17th day of June, 1697.

Beverly Robinson, a witness for the plaintiff, then testified that he is a great grandson of Frederick Philipse, that from common reputation in the family, Adolph Philipse the patentee, was the uncle of Frederick Philipse: Adolph died a bachelor, and his nephew Frederick succeeded as heir to his estate. Frederick had five children, viz: Frederick, Philip, Susannah, Mary, and Margaret. Margaret died young, and before the memory of the witness. Philip left a widow, who afterwards married Mr. Ogilvie. Susannah Philipse married Beverly Robinson, who was grandfather of witness. Mary Philipse married Col. Roger Morris, and their children were, Amherst, Henry Gage, Joanna, and Maria. Joanna Morris married Thomas Cowper Hincks. Amherst died about the year 1796, and was never married. Frederick Philipse, his great

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grandfather, died at a very remote period.

Plaintiff's counsel then gave in evidence, an exemplified copy of proceedings in chancery, to perpetuate the proof of the will of Frederick Philipse the elder, setting out the will verbatim in a bill filed by the devisees against the heir at law, with the answer of the her, confessing the will, and the proof by the subscribing witnesses of the due execution of the will. By this will, dated the 6th day of June, 1751, the lands contained in the patent aforesaid were devised to four children of the testator, to wit, Philip, Susannah, (afterwards the wife of Beverly Robinson,) Mary, (afterwards the wife of Roger Morris,) and Margaret, (who died shortly after the testator,) as an estate-tail.

Col. Thomas H. Barclay, a witness for the plaintiff, testified that he knew the family of Roger Morris intimately from his childhood. The children of Roger Merris and Mary his wife, were Amherst, Joanna, Henry Gage, and Maria. The children of Frederick Philipse the elder, were as Beverly Robinson has testified. Margaret