Brooks v. Bemiss — 8 Johns. 455

Majority

p. 455

Brooks against Bemiss.

Headnote

action for fe|¡daíít pleaded general if-sue, with notice of special matter in justification, stating that ia evidence, at cor/ofa’trial of m<1|otment, before the gene-''»l sessions, &e. of the term of June, ism. The record produced was of a trial in 'june> ^sog ¡ it Ilelda’r;at^ce not matenai, anu the record was admissible in evidence. missive, evenhi a case of special pleading, anti more so in case ofa notice sub„ ,t0. t,le general issue, which is regar. ded with, less strictness than

Whmsthelicharged iiT°th& „ this is not the first time that theideaoffaisehood and M- B. (meaning the plain tiff) have been associated together, in the minds of many honest men,” (meaning, See-)

It was held that evidence, that fiSundry honest men, to wit, A. H. (naming seven persons) and others, believed and considered the plaintiff not to be a man of truth, but addicted to falsehood,” was not admissible, in justification; and that the defendant could only justify the charge, by proving the tact.

THIS was an action for a libel. The declaration contained three counts. In the first count, the libellous words charged, were: “ But this is not the first time ° ’ the idea of falsehood and Micah Brooks (the plaintiff) . . J have been associated together, m the minds of many honest men,” (meaning, that the plaintiff had been guilty of falsehood, and that in the minds of many honest men he was considered as addicted to falsehood, 5 and of an infamous character.) The words in the second * count were: “In open court under the solemnities of . . . . an oath, this paltry but ambitious politician (meaning the plaintiff) testified to the existence of a fact, which a jury of his own county, of whom eleven were democrats too, declared by their verdict, that they did not believe. « The sanction of this man’s name is, therefore, cheap,” , . , ,, . (meaning, that the plaintiff has been guilty ox perjury, in testifying to a fact which a jury of his country did not believe.)

Tlií» rl#» X uc UC' The third count was abandoned at the trial, fendant pleaded the general issue, with notice of matter in justification, as follows : “ That at a court of general sessions, &c. held at, &c. of the term of June, in the year of our lord one thousand eight hundred ten, a certain indictment, pending in the said court, against William Adams, for an assault and charged to have been committed on the plaintiff, was . - , . , , , , . , tried by a jury ox the said county, and that, on the trial, . t. , . . rr - , - . . tne plaintiff was produced and sworn as a witness, on the

p. 456

part of the people, and testified, among other things, ins su(3Stance5 that the said William, tidams had before, &c. to wit, on the 26th Ap- il last, to wit, at. &c. committed an assault and battery on him, the plaintiff, &c. and had designedly and angrily struck him, the plaintiff, without any provocation, &c. And that after the jury had heard the evidence, &c. they gave a verdict that the said W. Adams was not guilty, See. And that A. B. C. D, et ah (naming eleven of the jurors) were democrats, and that the testimony of the plaintiff was believed to be false, by sundry honest men, then present, to wit, G. H. (naming seven persons) and others; and that both before and since the publishing the supposed libel, divers honest men, to wit, N. P, and others (naming them) believed and considered the plaintiff not to be a- man of truth, but addicted to falsehood.”

Issue was joined, in May, 1810, and the cause was tried, at the Ontario circuit, in June last, before Mr* Justice Tates,

T'he publication of the libel was proved. And the defendant offered in evidence the record of a trial, in the court of general sessions, held, &c. of the term of June, one thousand eight hundred and nine, of an indictment against William Adams, for an assault and battery committed on the plaintiff, on which the jury found a verdict of not guilty, See. The defendant also offered to prove, that the plaintiff was sworn as a witness, at that trial, and testified, as set forth in the notice to the plea of the defendant. T his evidence was objected to, and rejected by the judge, on the ground of the variance between the term of the court stated in the notice, and in the record produced. The defendant then offered to prove the facts stated in his notice, independently of the record, but the evidence was rejected. The judge charged the jury, that the matter set forth in the plaintiff’s declaration was libellous, and amounted to a charge of perjury, and that they ought to find a verdict for the plaintiff. The jury

p. 457

found a verdict accordingly, for one hundred dollars, da'mages.

There was a motion for a new trial, and also in arrest of judgment.

E. Williams, for the defendant.

Rodman, contra.

The principal point, upon the motion for a new trial, is, as to the admissibility of the evidence, which was offered on the part of the defendant, and rejected by the judge.

The defendant offered in evidence the record of a trial at the Ontario sessions, of the term of June, 1809, and it was rejected, on the ground that the notice annexed to the plea, set forth that the record of a trial, of the term of June, 1810, would be given in evidence. The year in the notice was an evident clerical mistake, as the time specified in the notice was even subsequent to the joining of issue in the cause, and subsequent to the giving of the notice itself. The question is, whether the day In the notice was material to be proved exactly as stated. The notice did not affect to set forth the record according to its tenor, or with a jOr out patet, &c. and the allegation of the time was not matter of substance, but of description merely. The notice only intended to inform the plaintiff, that the defendant would rely upon an acquittal of one William Adams, upon an indictment at the Ontario sessions, for an assault and battery upon the plaintiff, notwithstanding the plaintiff’s oath. This was the substance of the notice, and the time was not material, so that it appeared to be before the publication of the libel. It was no further an essential part of the notice; and the record ought, accordingly, to have been received, notwithstanding the variance as to the time. This was the doctrine in Purcell v. Macnamara, (9 East, 157.) even in a case

p. 458

of special pleading. This just and liberal rule applies, with still greater force, to the case of a notice, which has never been regarded with the same criticism and nicety . ° as a special plea.

The matter offered in evidence, in justification of the first count, was properly rejected. The charge imported that the plaintiff was a liar. That was its meaning and substance; and that charge cannot be justified, by giving the opinion of one or more individuals. Such a species of defence might lead to the grossest abuse and calumny, even of a party of good general character, and of unimpeachable conduct. The defendant can only justify the charge by proving the fact.

But on account of the rejection of the evidence of the record, the verdict must be set aside, and a new trial awarded, with costs, to abide the event of the suit.

New trial granted.