IN AN ACTION OF SLANDER, where the defendant, a justice of the peace, voluntarily stated before the graud jury the charge against the plaintiff, as having repeatedly come to him as a rumor, the occasion on which the words were spoken furnishes a prima facie excuse for their having been spoken, and it falls upon the plaintiff to show that the occasion was only used as a colorable pretense, and to establish express malice in the defendant.

ERROR from the Monroe county circuit court. The opinion states the case.

Goodwin and Sale, and Ligon, Lindsay, and Copp, for the plaintiff in error.

Davis and S. Adams, contra.

By Court, THACHER, J. This is an action of slander, in which the jury found for Robison, the plaintiff below, one thousand dollars damages.

The competency of certain grand jurors to testify to the uttering of the supposed slanderous words before them, while officiating as grand jurors, was objected to upon the trial.

In this state, no oath of secrecy is required from grand jurors, as to what transpires among them in the discharge of their office. The question then is, whether, by the policy of the law, communications to them, etc., are to be deemed privileged.

It would certainly be a great breach of duty for a grand juror, while the inquest was in session, to disclose the business of that body, by means whereof persons accused and not yet arrested might make their escape, or take other measures to defeat the course of public justice. Indeed, in a certain state of case, a grand juror might thereby render himself liable to a criminal charge as an accessary, after the fact, in the commission of a crime. So, as many charges are confided to that body against individuals, which, for want of sufficient proof, or from want of foundation in fact, do not mature to a presentment or indictment, common prudence and charity, and a regard for the peace of society and innocent men's reputations, imperatively should close the mouths of grand jurors, as to their proceedings, after the expiration of their session. It is the interest of all good citizens to observe this rule, in order to secure freedom of deliberation and opinion, which would be to a great extent impaired if the occurrences of a session were afterwards made the subject of comment and loose and malicious conversation. Indeed, thus a grand juror might well subject himself to an action of slander. But the policy of the law was never designed to injure or punish the innocent, or to obstruct the course of jus

tice; nor can that rule be upheld, by which a grand jury room shall be converted into an occasion for the safe and irresponsible utterance of false and malicious slander against upright and honorable citizens: Huidekoper v. Cotton, 3 Watts, 56. Hence it will be seen that so much depends upon time and circumstances, that the competency of a grand juror to testify is peculiarly a matter of discretion with the court to discriminate as to it. In the present case we see no valid objection to the competency, since the subject-matter of their evidence had been already disclosed, and it was for the good of both plaintiff and defendant that the merits of the affair should be fully exposed.

The principle by which the finding in this instance may be safely tested is laid down by Chief Justice Shaw of Massachusetts, in Bradley v. Heath, 12 Pick. 163 [22 Am. Dec. 418]. He says: "Where words, imputing misconduct to another, are spoken by one having a duty to perform, and the words are spoken in good faith, and in the belief that it comes within the discharge of that duty, or where they are spoken in good faith to those who have an interest in the communication, and a right to know and act upon the facts stated, no presumption of malice arises from the speaking of the words, and therefore no action can be maintained in such cases, without proof of express malice. If the occasion is used merely as a means of enabling the party uttering the slander to indulge his malice, and not in good faith to perform a duty or make a communication useful and beneficial to others, the occasion will furnish no excuse:" Bromage v. Prosser, 4 Barn. & Cress. 247; Stark. on Slander, 200.

The defendant below was a justice of the peace of the county, and he stated the charge against the plaintiff, as having repeatedly come to him as a rumor. This he stated voluntarily to the grand jury. No prosecution ensued for the want of evidence, or other reasons which do not appear.

It is the duty of every citizen, and more especially of justices of the peace, even without the statutes requiring them so to do, to prosecute, in every legal mode, persons who have within their knowledge been guilty of crimes or misdemeanors. The occasion, therefore, on which the words were spoken furnishes a prima facie excuse for their having been spoken. It fell, then, upon the plaintiff below to show that the occasion was only used as a colorable pretense, and to have established express malice in the defendant. The only ground for proof of this, was that, on some previous occasion, the plaintiff had exacted specie from the defendant in the payment of a debt. The

present record does not disclose enough, in our opinion, to justify the finding of the jury.

The judgment is reversed, and a new trial awarded.

GROUND OF POLICY OF SWEARING GRAND JURORS TO SECRECY: See State v. Broughton, 45 Am. Dec. 507.

EXPRESS MALICE MUST BE SHOWN IN ACTION OF SLANDER, where the words were spoken in the exercise of a duty or for good motives: Faris v. Starke, 33 Am. Dec. 536.

WORDS PRIVILEGED BECAUSE SPOKEN IN JUDICIAL PROCEEDING, so as not to be actionable, when: See Faris v. Starke, 33 Am. Dec. 536, and note; Hastings v. Lusk, 34 Id. 330; Mower v. Watson, Id. 704.

PACK V. THOMAS.

[13 SMEDES AND MARSHALL, 11.ƒ

PAROL EVIDENCE IS INADMISSIBLE TO VARY TERMS OF CHECK; consequently, if one give a check for so much money, it is not competent for him to prove, by oral testimony, that it was agreed, either expressly or impliedly, at the time the check was given, that it should be payable in bank notes.

COMPETENCY OF EVIDENCE IS TO BE DETERMINED BY ITS LEGAL EFFECT; it is immaterial how long or circuitous the chain may be by which the end is reached.

RULE AS TO VARYING WRITTEN INSTRUMENT BY PAROL EVIDENCE is that where the law requires a written instrument, or where parties adopt that mode of contracting, it is a matter of principle and policy to prevent inferior evidence from being used, either as a substitute for, or an alteration of, the written contract. The operation of an instrument can not be varied by showing that a different intention existed at the time it was made. Its legal effect must be preserved, and all contemporaneous expressions or circumstances which tend to vary it must be excluded, unless established by proof of the same character.

NOTICE OF DISHONOR OF CHECK IS NOT NECESSARY where the drawer had no funds in the bank at the time, although he may have had reasonable grounds to believe that it would be paid.

DRAWER OF CHECK, INJURED BY WANT OF NOTICE OF ITS DISHONOR, 18 only exonerated to the extent of the injury. A mere partial injury would not entitle him to be exonerated from the whole debt.

ERROR from the Madison county circuit court. The opinion states the case.

D. Mayes, for the plaintiff in error.

A. H. Handy, contra.

By Court, SHARKEY, C. J. This action was brought on a check for one thousand three hundred and thirty-five dollars, drawn

on the branch of the Commercial Bank of Natchez, at Canton, by Thomas in favor of Pack. There was a verdict for the defendant, and it is now insisted that the court erred in admitting testimony, and also in its charges to the jury.

The first point raised relates to the admissibility of Stephens' testimony, which was to this effect: in conversation, Pack stated to the witness, that he (Pack) had met defendant, Thomas, in Canton, who informed him, that he had collected a debt for him as attorney in notes of the Brandon Bank, and asked Pack if he would receive them in payment; Pack replied that he would not, and they separated. They met again, when Thomas asked Pack what he ought to do with the Brandon notes; the latter replied that his advice would be to deposit them in the Commercial Bank. They met a third time, when Thomas informed Pack that he had deposited the notes as advised, and offered Pack the check in question, which he received, without saying whether he would or would not receive the Brandon notes. His reason for doing so was, that he thought the bank might use the notes and pay him in money.

The cashier of the bank was examined, who stated that Thomas had no money in the bank at the time the check was drawn, or afterwards, except in Brandon notes, which had been received as a kind of special deposit, and that Thomas was informed when he made the deposit, that money would not be paid on it. Payment of the check was demanded and refused, though the cashier states that he would have paid it in Brandon notes.

Under these circumstances, it must be very clear that Stephens' testimony was improperly admitted. It was an effort to prove, from circumstances, an agreement to receive the Brandon notes in payment of the check. This was the effect of the testimony, and, beyond all doubt, the object of its introduction. Then the question is plainly this: If one give a check for so much money, is it competent for him to prove by oral testimony, that it was agreed, either expressly or impliedly, at the time the check was given, that it should be payable, not in money, but in something else? Is it competent to show that it was not intended as a check for money, although it calls for money on its face? This is too clearly varying the legal effect of the instrument; it is changing the contract. And the objection is not obviated by the circuitous method of arriving at the fact. The competency of evidence is to be determined by its legal effect. It is immaterial how long or circuitous the chain may be by which the end is reached. It would have been just as free from objection, if

the witness had said in so many words, Mr. Pack agreed to receive Brandon notes for the check. By the face of the instrument it is one thing, a check payable in money; by the proof offered it is a different thing, it is a check payable in depreciated bank notes, which are not money. It might as well have been converted into a check for any other commodity. And the ob ject was not to defeat the instrument by matter subsequent, which operated as a discharge or a new contract; but to vary its effect by showing facts which transpired before and at the time it was delivered.

The rule is very distinctly laid down, that where the law requires a written instrument, or where parties adopt that mode of contracting, it is a matter of principle and policy to exclude inferior evidence from being used, either as a substitute for, or as an alteration of, the written contract. The operation of an instrument can not be varied by showing that a different intention existed at the time it was made. Its legal effect must be preserved, and all contemporaneous expressions or circumstances which tend to vary it must be excluded, unless established by proof of the same character: 3 Stark. Ev. 994–1008. Oral evidence is inadmissible to prove that a general acceptance of a bill of exchange was intended to be conditional only: Heaverin v. Donnell, 7 Smed. & M. 244. It is inadmissible to prove that a promissory note was intended to be payable at a particular time, when no time of payment was expressed, as that would alter its legal effect: Thompson v. Ketchum, 8 Johns. 189 [5 Am. Dec. 332]; or to prove that one who had engaged in writing to become surety on a promissory note, was only to be held liable in case of the insolvency of the principal: Hunt v. Adams, 7 Mass. 519; or to show that a note payable at a day certain was to be payable on a contingency only: 3 Stark. Ev. 1008. The law presumes that parties mean exactly what they have said in writing, and that they have said all that was intended, and it is dangerous to relax the rule which holds them to their written contracts.

It is also insisted, that the court erred in refusing to instruct the jury, that if they believed from the evidence that when Thomas drew the check he had not funds in bank for its payment in cash, or any part of it, but only Brandon notes, placed there as a special deposit to be paid out in the same notes, and that he knew cash would not be paid by the bank on account of such deposit, they ought to find for the plaintiff. This charge