Botelar v. Bell

Le Grand, C. J., delivered the opinion of the court. This is an action of slander, brought by the appellee for word spoken by the appellant, imputing to him insolvency, he then conducting the business of a miller. The defendant pleaded the general issue, justification, and limitations. The action was brought on the 8th of August 1849.

The first question for the consideration of this court is, that presented by defendant’s first exception. To inflame the malice, the county court permitted the plaintiff to give evidence of other declarations, made by the plaintiff more than a year prior to the institution of the suit; and the question is, did the county court err in so deciding? We think not. The statute of limitations does not apply to evidence, but to the cause of action; and, as malice is the gist of the action, it is competent for the plaintiff to establish it by showing the declarations of defendant, both before and after the speaking of the particular words which are laid in the declaration as the cause of action.

There are instances in which the statute applies to evidence, such as in the case of bonds, but then this is owing entirely to the express language of the act, and not to the general principles of the law of evidence. We are of opinion the court rightfully admitted the testimony. The second exception presents the question, how far the defendant is permitted, in mitigation of damages, to show that the plaintiff has been in the habit of villifying him? The county court, in the case before us, refused to allow the defendant to give evidence of the language of the plaintiff, “unless the defendant could show further, that at the time of the utterance of the language charged in the declaration, or proved upon trial, in aggravation of damages, or about the time of uttering the same, the defendant was influenced in uttering the same by the language so offered, to be given in proof.” The defendant proposed to prove, that from time to time, ¹⁷⁹ from 1845 to July 1848, the plaintiff had imputed to him insolvency, and, particularly, that in July 1848, it was communicated to defendant, that the plaintiff had said he, the defendant, was broke, and that the defendant was very much irritated by the communication; and that defendant was frequently told of opprobrious language used towards him by the plaintiff, and was always irritated by it.

Apart from the declarations of the defendant himself, we do not see how it were possible for him to prove, directly, he was influenced to the use of the language with which he is charged, by that of the plaintiff. In the absence of his own declarations, it is matter to be inferred by the jury, from all the circumstances surrounding the case. The requirement, therefore, of the court that he should give such evidence, was such, as it was impossible to comply with. The words charged in the declaration are alleged to have been spoken on the 20th of July 1848; and the communication made to the defendant by the witness Clagget, was made sometime in the same month.

Under the rules of evidence, was such testimony admissible for the purpose for which it was offered? We think it was. We are aware it has been held in England, and in several of our States, that to enable the defendant to prove opprobrious language of the