to lessen the appearance of malice thus raised up and to prove that although he had heard and reported slanders he was unable to justify -yet of the principal and additional guilt of having invented them, he was entirely innocent.

Great inconvenience might arise from a contrary doctrine: An unprincipled man might cause scandalous reports, yet untrue, to be circalated respecting himself; and on a prosecution for repeating them, should the defendant be precluded from giving in evidence that he heard them from others, or that they originated with the friend, or in the family of the plaintiff, in mitigation-the villainy of the plaintiff would be completely successful in a verdict for damages.

To shew that the defendant, in the cause before us, was actuated by malice and ill will, other conversations than those laid in the declaration were permitted to be given in evidence on the part of the plaintiff, viz. (those with John Harriet and Nancy Seabring.) I am then, clearly of opinion, that the defendant, before a tribunal not limited in the damages they might find against him, but by the sum named by the prosecutor, had a legal right to shew the circumstances under which the words were spoken, and to exculpate himself in the view of his country, from the suspicion of having invented so scandalous a tale. He could not do this more effectually, than by proving they originated in the family of the plaintiff. The court below refused to hear this testimony on this head; and in so doing, I conceive, their decision was unlawful.-Therefore, let the judgment be reversed.

PENNINGTON, J. The question for the determination of this court is, whether the common pleas of Somerset, did not commit error in rejecting testimony offered by the plaintiff in error, the defendant below. The declaration charged the defendant below, with maliciously publishing certain slanderous words of the plaintiff, relative to an adulterous intercourse with a certain Mrs. Cain. The defendant pleads to all the counts in the declaration the general issue. On the trial, it appeared, that certain reports had been in circulation in the congregation relative to the conduct of the plaintiff, (who was the minister) in respect to Mrs. Cain; that the defendant was one of the congregation; that the sessions of the church had been convened on the occasion, and an inquiry had been set on foot; that three weeks after the meeting of the sessions, Jeremiah Fisher, a witness on the part of the plaintiff, and the only one that proved any of the worda

contained in the declaration, swore that he met the defendant, Dr. Cook, at a hatter's shop, when a conversation took place on the subject, and that the defendant said, that it was now said, that the plaintiff below had been ketched in the fact of being with Mrs. Cain at the board fence; witness asking how it could be proved? The defendant answered, by Howell's boys. The same witness testifies to two facts that go to show doubts as to his correctness, in respectto the positive asseveration of the defendant; for he immediately says, that the defendant observed, that it was a scandalous thing for a minister if true. The introductory words, it was now said, go to the same point. A witness present at the same conversation says, that the defendant spoke of it as what he had heard; other witnesses were called, who testified that the first witness Fisher, had said at other times that the defendant did not speak posittvely, but that it was so said and reported.

The defendant then offered to prove by a witness, that it was so said and reported by other persons, before the words spoken by him ; and that witnesses had been examined before the Presbytery, who had swore to the facts; and that the plaintiff himself had acknowledged there was such a report in circulation; and it originated in his own family. So far, at least at the testimony went to shew, that there was such a report in circulation, and that the story originating in the family of the plaintiff, I think the court erred in not receiving the testimony. The quo animo with which the words were spoken, was the point in issue, as malice constitutes the gist of the action. It appears to me, that the testimony was proper, to shew with what temper of mind the defendant spoke the words: whether from a malicious design to injure the plaintiff, or from a laudable motive to preserve the purity of character, so essentially requisite in a person exercising the functions of the plaintiff; or from mere inadvertency; or even if it should appear to the jury, that the defendant had pursued the enquiry with so much zeal as to indicate an evil intent, yet if it should appear that he did not give rise to the slander, but only repeated what he heard from others, giving credit to it as coming from the plainiiff's own family, and the more especially if it should be found that this was done in the course of prosecuting the plaintiff before the sessions or Presbytery, it certainly might and ought to go in mitiga tion of damages.

I am aware that I am treading on what some may think questionable ground; that there are some dictums in the books, and opinions out of them that look another way. This, however, ought not to deter me from the investigation of a subject of vast importance to society, as it affects in a delicate point the public justice of the country.

It is no doubt a rule of law, that what may be pleaded in justification, cannot be given in evidence on the general issue of not guilty; that a defendant shall not indirectly and by surprise, set up a defence, which he might and ought to have apprized his adversary of by plea. This is a rule founded on the nicety of special pleading, contrived to narrow the matter in controversy to a single and simple point; but it is confined to those cases where the matter offered in evidence, would of itselt be a justification, and might be pleaded; and not where it is merely evidence of a fact which, if true, only goes to show that the defendant was not guilty, or in mitigation of damages.

Supposing one of my neighbours; for instance, the parson of the parish, should call at my house, and very gravely inform me, that one of our neighbours had been found out and fully detected in the commission of some scandalous offence, and detail the circumstances both of the commission of the offence, and of the detection; that other persons, of good credit, were to drop in and relate the same story, so that I should fully believe that the facts were not only true, but that they were public; and that in conversation afterwards with some other person, I was to mention that there was such a report in circulation, without thinking it necessary to name the persons from whom I had it, and it should turn out afterwards to be a mistake, that it was another person resembling the one spoken of in name, or in other cir cumstances which had led to the error; if the party should think proper to bring an action against me, I could not plead that I had it from other persons, and that it was a general report in the neighbourhood, but I must plead the general issue, that I was not guilty of a malicious slander; reason and justice would, however say, that I might give in evidence the whole transaction, the manner and occasion of speaking the words, that if it would not wholly excuse me, it might at least go in extenuation of the injury; and I have not been able to discover any adjudicated case to the contrary. The dictum cited from Com. Dig. goes no farther than to prohibit this matter from being pleaded in bar to the action. The sayings of the judges, in Northampton's case, 13

Coke, which the reporter calls a resolve, goes no farther; it only says, that in such case an action on the case may be maintained; that is, its having been reported by others cannot be pleaded in bar; the reason I apprehend to be, that altho' a person reporting what he hath heard from another may do it from laudable motives, or innocent views, yet he may also do it from vile and bad motives; he may not believe the report himself, and yet circulates it from malicious views; and this is a proper subject for the consideration and determination of the jury. Northampton's case, before mentioned, and which was cited by the counsel for the plaintiff below, in part recognizes this distinction; and as this is considered a leading case on this subject, it merits some attention. It is proper to observe, that this is a starchamber case; the proceedings in which was not by the rules and course of the common law; the case was a criminal one in favor, as the case states, of one of the grandees and peers of the realm, a principal officer of state, high in the confidence of the king, the information ore tenus, and the examination summary, and by interrogatories put to the persons accused. In fact, there were no pleadings; a jury never set foot in this chamber. One Goodrick was charged by the attorney general with publishing certain horrible lies of the Earl of Northampton; Goodrick being examined, acknowledged speaking the words charged against him; but alledged by way of excuse, that he had them from one Cox. Even this high prerogative court, did not tell him it is of no importance from whom you had the report, you are the slanderer, and must take the whole on yourself; but they examined Cox, who acknowledged that he told Goodrick some part of what he reported; and that he had that part from one Lake; who being examined, said he had it from another; and in this way, this court traced it through several persons to one Ingram; who said he had it from some English fugitives in foreign parts. This was considered as a fiction, and he found to be the author. It is true, the court punished all these persons; but they made a distinction between Goodrick, who gave no author for part of what he said, and Ingram who could not give a satisfactory one for the remainder, and the intermediate persons through whose hands the report had passed, whom they punished less. This certainly went in mitigation; they were not punished as principals; and it is also to be recollected, that they did not relate it as a report, but as a fact. I cannot, therefore, see any

thing in this case, that impeaches the doctrine which I have here advanced. All the circumstances connected with the words should go fully and fairly to the jury, who must judge from them of the guilt or innocence of the defendant; and in case they find him blameable, to assess such damages as the more or less aggravated circumstances of the case will justify. Justice and reason calls for this rule; and the law, as I apprehend, does not deny it; nor can I perceive what inconvenience can result from it. An intelligent court will always instruct the jury in what light to apply the testimony; distinguishing between that which goes to the point in issue, and that which goes in mitigation or aggravation. Is it not as reasonable to mitigate as to aggravate? Our law does not delight in exposing the dark side of the human cha racter; it seeks truth; it is not vindictive; it is merely just. It is too dignified and enlightened, to put on the same footing the vile inventor, fabricator, and publisher of a malignant slander, and him who inadvertently repeats what is already in circulation.

I am, therefore, of opinion, that the judgment be reversed.

Judgment Reversed.

The promulgation of this report, was a heavy stroke; but it would have been gotten over by the interposition of his friends and I believe those evils would have died and have been buried in oblivion, had Mr. Barclay acted in conformity with the desire of his friends; but it would seem, that he was determined not to let the thing rest here. That he was bent on his own destruction, which is much to be lamented, as it relates to the great eause of religion, which he professed to support; for even before his friends could get him out of one difficulty, he would be creeping into another : For if thou deliver him, yet thou must do it again. —Prov. xix, 19.-As a dog returneth to his vo mit, so a fool returneth to his folly-xxvi, 11.