Morris v. Barker — 4 Del. 520

Majority

p. 520

JOSEPH MORRIS vs. JOSEPH R. BARKER.

Headnote

In the action of slander the defendant’s circumstances as to property cannot be given in evidence.

Under the general issue the defendant may prove previous reports of plaintiffs guilt, to reduce the damages, and disprove the malice.

Malice is the gist of the action.

The law implies malice from charges of an indictable character.

October term, 1847.

This was an action of slander for words. Plea, not guilty.

Plaintiff proved the slander and offered evidence of the defendant’s circumstances. This was objected to, and insisted on; and, after

p. 521

argument, was ruled out by the court. (2 Greenl. Evid. 222, § 2(59.) ' •

Robinson, Bayard, jr., and Layton, for plaintiff.

Cullen and Saulsbury, for defendant.

Mr. Cullen, for the defendant,

proposed to prove that there were general rumors in the neighborhood that plaintiff had done the act with which he was charged, and that the defendant repeated the rumor innocently, without malice. (3 Steph. N. P. 2579; 7 Com. Law Rep. 220; 1 Camp. Rep. 267-8; 10 Com. Law Rep. 321, 2 Camp. N. P. 251; 1 M. & Selw. 284.)

Robinson, Layton and Bayard, jr.,

contended that no matter of extenuation or justification could be given in evidence undér the plea of not guilty, which puts in issue only the speaking' of the words. If words be spoken on a justifiable occasion, it must be pleaded specially. (3 Com. Law Rep. 177; 21 Ibid 69, 72; 3 Harr. Rep. 377 ; Ros. Ev. 293.)

But the court admitted the evidence, in mitigation of damages, on the authority of Leicester vs. Walter, 2 Camp. 251; and - vs. Moore, 1 M. & S. 284; and it seemed to them reasonable, that although a man may not justify the uttering a slander, nor attempt to prove its truth upon a plea of not guilty, yet with a view to mitigate the damages and disprove malice, he might show that before the uttering the slander by the defendant, it was generally reported and spoken of by others.’ Verdict for plaintiff $200.