author: Christianoy, J.

text:
    Frederick Huson v. John P. Dale.

      Slander : Evidence under the general issue to mitigate damages. To rebut, malice and thus to mitigate damages, but not to establish a defense, it is competent to show under the general issue that at the time the slanderous words were uttered, the defendant reasonably believed them to be true.
    Facts -which may tend to establish the truth of the words are not for that reason inadmissible under the general issue. If they tend to rebut malice and are offered for that purpose only, and are not such as might have have been pleaded as justification, they are admissible.

      Thompson v. Bowers (1 Doug. 321.) so far as it is in conflict with these principles overruled. — Parr v. Rasco, 9 Mich. 858, approved
    Evidence offered in mitigation under the general issue must be treated as involving a conclusive admission that the words are not in fact true ; but the defendant may show that he believed them to be true and may introduce facts to show the grounds of such belief at the time of speaking the words.
    The rule in Underwood v. Park, (2 Strange 1,200), that if a defendant intend to rely upon the truth of the charge in any way, he must plead it, — discussed and approved. This rule is not inconsistent with the admission of testimony under the general issue offered in mitigation and not in justification.

      Variance. Testimony offered by a defendant in mitigation of damages in slander to prove that he believed the words charged--14 He stole my horse ” — to be true, is admissible notwithstanding the proof showed that the horse referred to belonged to the defendant’s wife.

      Heard May 6.

      Decided July 12.

    Error to Washtenaw Circuit.
    This was a action of slander brought by John P. Dale against Frederick Huson, in the Circuit Court for the County of Washtenaw. To the declaration, the defendant pleaded the general issue only; and on the trial offered evidence to rebut the presumption of malice and in mitigation of damages. The evidence was excluded, and after verdict and judgment for the plaintiff, the defendant brought the case into this court by writ of error.

      H. J. Bealces, for Plaintiff in error.
    The general question which arises on the record in this case, is whether in an action of slander it is competent for the defendant to show under the general issue in mitigation of damages, that at the time of making the charge imputed to him, he had reason to believe, and did believe, the plaintiff to be guilty of the offense charged, and that the defendant acted honestly and in good faith in making the charge for which the action is brought. The right to use the rejected evidence as a full justification, was expressly disclaimed at the trial, as the record shows.
    1. It is well settled that malice is the gist of the action. Bush v. Prosser, 11 N. Y. 358; Maitland v. Goldney, 2 East 436; 1 Starkie on Slander, 431-433; White v. Nichols, 3 Howard U. S. Rep. 266; 1 Kent’s Com. 635, 641, tenth edition, (being pp. 20 and 25 of former edition;) Lewis v. Chapman, 16 N. Y. 372; McKee v. Ingalls, 4 Scam. 30; Taylor v. Kneeland, 1 Doug. 74; Brown v. Brooks, 3 Ind. 518; Gates v. Meredith, 7 Ind. 440; Cook v. Barklay 1 Penn., N. J. Rep, 180, 183; 2 Bouvier’s Law Dict. 529, Slander; King v. Root, 7 Cowen 625.

    2. And that affirmative evidence may be given by the plaintiff to show actual malice on the part of the defendant, for the purpose of enhancing the damages. — Taylor v. Kneeland, 1 Doug. 75; 2 Greenleaf’s Ev. §418; Defries v. Davis, 7 Car. & Payne, 112; Bromage v. Prosser, 4 Barn. & Cress. 247; King v. Root, 4 Wend. 139.

    3. In actions of this character, exemplary or vindictive damages are allowed where the defendant has acted in bad faith. And malice is presumed from the speaking of slanderous words, unless explained or excused by the circumstances.—Sedgwick on Damages, Chap. 18, pp. 522, 526 528, 531, 532, (4th Edition,) and cases there cited; Tillotson v. Cheetham, 8 Johnson, 56, 58, 63, 64, 66; 1 Starkie on Slander, 213; Gilreath v. Allen, 10 Iredell 67; Kinney v. Hosea, 3 Harrington 397; Fry v. Bennett, 4 Duer; 247; Cramer v. Noonan, 4 Wis. 231; King v. Root, 4 Wend. 139.

    4. The general rule in actions of tort — especially in actions for injuries to the character or person — is that the degree of malice on the part of the defendant materially affects the damages recoverable. Taylor v. Church, 8 N. Y. 460, 462, 463, and cases there cited, 1 Kent Com. 641.

    5. It has always been held in cases where special damage is the sole cause of action, that evidence of the truth of the words may be admitted under the general issue to disprove malice.—Watson v. Reynolds, 1 Moody and Malkin 1; Harrison’s Digest 935—Defamation—Evidence; 2 Greenleaf’s Ev., § 421.

    But whether the malice be inferred from the words themselves or be shown by affirmative or extrinsic evidence, is of no moment. It is only a different mode of proving the same fact. And on principle the defendant ought to have the same right to rebut the malice in the one ease as in the other — at least so far as affects the damages. See Lewis v. Chapman, 16 N. Y. 372.

    See also discussions of the distinctions between express and implied malice, by N. Hill, Jr., arguendo in Darry v. People, 16 N. Y. 123

    6. It is agreed on all hands that the defendant may give in evidence under the general issue, in mitigation of damages, any facts which disprove malice, provided they do not pz-ove or tend to prove the truth of the chaz-ge.—Gilman v. Lowell, 8 Wend. 573; Sedgwick on Damages, 633; King v. Root, 7 Cowen 633, 636; Larned v. Buffington, 3 Mass. 546, 553.

    7. In the action for malicious prosecution it is settled that the advice of counsel, on a fair statement of the facts, may be shown to rebut malice under the general issue.—2 Greenleaf’s Evidence, § 459.

    Why should not the same evidence be admitted for the same purpose in slander?
    8. Being a mere question of damages, and not matter which could be the subject of a special plea in bar under the common law practice, the evidence was admissible under the general issue without notice. — Delevan v. Bates, 1 Mich. 97, 99.

      The general doctrine is, that notice is not essential, (except where specially required by statute,) of matters not the subject of a special plea in bar, under the former practice.—Thompson v. Bowers, 1 Douglass, 324; Starckie on Slander, pp. 47, 48 of Wendell’s Introduction; Butler’s N. P. 298.

    9. The decisions against the admissibility of the truth in mitigation, under the general issue, are founded on Underwood v. Parks, (Strange 1,200,) which was a confessed innovation on the Common Law rule.—1 Starkie on Slander, 466, 467; Buller’s Nisi Prius, 9; Smithies v. Harrison, 1 Lord Raym, 727; Wendell’s Introduction to Starkie on Slander, 43, 44, 45, 46; Bush v. Prosser, 11 N. Y. 862,
    10. It submitted that if under the general issue it was competent for the plaintiff to show the speaking of slanderous words other than those alleged in the declaration, to show malice on the part of the defendant, and thereby to enhance the damages, as was held in Thompson v. Bowers, 1 Douglas 321, any circumstances showing good faith and want of malice must also be admissible for the defendant, under that plea. If not, then the issue is not mutual.
    Some of the New York cases which refused the defendant the right to show a want of malice, did so for the reason that he had by his pleadings attempted to justify, which, under the rule they had adopted, was conclusive evidence of malice and estopped the defendant from denying it. And it was intimated that a different rule might apply where the general issue only was pleaded. See King v. Root, 7 Cowen 629, 630, 631, 632, 633.

    11. The rule established in Karr v. Rasco, 9 Michigan 353, logically requires that no evidence tending to show the quo animo of the defendant should be excluded from the consideration of the jury in assessing damages.
    The English cases which allow the circumstances of suspicion, introduced under a plea of justification, to be considered by the jury in mitigation of damages, though the justification fails, must go on the ground that the evidence should be admissible under the general issue, if they rest on principle. Otherwise, if the testimony failed to prove what it was solely introduced for, it should have been excluded altogether. See Leicester v. Walter, 2 Campb. 251; East v. Chapman, 1 Moody & Malkin, 46; Chalmers v. Shackell, 6 Carr. & Payne, 475; Charlton v. Walton, 6 Carr. & Payne, 385.

    It is no objection to the admissibility of testimony which is good for one purpose, that it is not good for another purpose.
    See as to admissibility of testimony in mitigation of damages in slander: Kennedy v. Gregory, 1 Binney, 85; Morris v. Duane, 1 Binney, 90; Runkle v. Meyer, 3 Yeates, 518; Reynolds v. Tucker, 6 Ohio N. S. 516; 5 Ohio N. S. 293; Stanley v. Webb, 21 Barb. 148; Weaver v. Hendrick, 80 Missouri, 502.

    Ought a plaintiff, morally but not technically guilty of the offense imputed to him, to receive the same damages as a blameless man ?
    Ought a man who has, in good faith and without actual wrong intent, charged an offense of which he believed and had reason to believe the plaintiff to be guilty, to be mulcted in the same damages as the man who maliciously fabricates a false charge with full knowledge of its falsity?
    ■ Is it any reason for depriving the defendant of the benefit of showing the suspicious circumstances which induced him to believe the defendant guilty, that the defendant was in fact guilty ?
    If so, a guilty plaintiff stands a better chance for damages under the general issue than an innocent plaintiff mistakenly accused.

      Is a defendant to be denied the right of vindicating his motives and reducing the damages under the general issue, because under a notice of justification he might have made a full defense ?
    If Thompson vs. Bowers shall be construed to require an affirmative answer to these questions, then I submit that its doctrine is overruled by the later case of Farr v. Rasco; that it is contrary to justice and all the analogies of the law, and inconsistent with itself; that it is not like the case where a false doctrine has become a rule of property, and is therefore to be maintained; but that the original and true Common Law should be restored, and declared that any fact, whether true or only apparently true, on which the defendant acted, which tends to show his malice or his good faith, should go to the jury under the general issue on the question of damages.

      A. Felch, for Defendant in error.
    I. The first offer was of the records and files in a cause then pending in said Court of a suit in Keplevin for a horse, brought by Byron Green and said Dale against said Huson, with an offer to show, in connection therewith that Dale directed the Sheriff not to take the horse on the writ until Saturday night, so that they could get possession of the horse and run him out of the County, and that the horse was so taken and run out of the County, which led the defendant to believe that the process was used as a matter of form to obtain possession of the horse, and not on the ground that they claimed the horse as their property, and all the facts and circumstances connected therewith.
    This was in effect an offer to prove that Green and Dale stole the plaintiff’s horse, corruptly making use of a writ of replevin to get possession of the property, and running it off under circumstances to constitute the crime of larceny.
    1. Dnder the general issue, evidence of the truth, of the slanderous words, can not be given in evidence to rebut malice or in mitigation of damages. Thompson v. Bowers, 1 Doug. 321; This has been the recognized doctrine in this State for more than twenty-five years, and it is presumed will still continue to be the established rule of law.
    It is the universal rule, where not affected by statutory provisions, that the truth of the slanderous words can not be given in evidence under the general issue only, even in mitigation of damages. 1 Am. Lead. Cases, 187; Townshend on Slander, 255, and the numerous cases cited in note 1,031.

    In a few of the States it has been said by the Courts that circumstances which disprove malice but do not tend to prove the truth of the charge contained in the words spoken are admissible in evidence under the general issue, but these are mere dicta and no such general rule prevails. 1 Am. L. Cases, 187, 188, 190.

    And in all cases where evidence going to mitigate damages only, is admitted, it must be such as fully admits the charge to be false; which is not the fact in this case. Cooper v. Barber, 24 Wend. 105.

    The rule that all such testimony is excluded under the general issue, if it tends to prove the truth and to criminate the plaintiff, or which forms a link in a chain of evidence to prove a justification, is not only the law of Michigan, but the general law of the land. Ib. 187.
    2. This offer of testimony was subject to the further objection that it did not state specially all the facts which were offered to be shown.
    II. The defendant below offered in evidence the return of a Justice of the Peace to the Circuit Court of a complaint made to him by Henrietta 0. Huson, against said John Dale and others, for the larceny of a horse described therein, and alleged to be of the goods, chattels and property of said Henrietta 0. Huson, with the warrant issued thereon, and showing that said Dale had been arrested thereon on said charge, and that he was discharged on the examination before the Justice on the testimony on behalf of the People. This testimony was inadmissible because:
    1. It was proposed to show that Dale had been prosecuted on a charge of stealing the horse of Henrietta C. Huson.
    If this be admissible, a party may wantonly charge any crime in the catalogue of offenses, and shield himself from merited punishment by showing a complaint for another and entirely distinct offense, founded or unfounded, made by any other person against the victim of his slanders. The same rule must apply here as in plea of justification. A charge of committing one offense is not justified, nor the damages diminished by showing the commission of another, although of the same or greater enormity.—Stow v. Converse, 4 Conn. 7; Andrews v. Van Duzer, 11 John, 38; Whittaker v. Carter, 4 Ind. 461; Swan v. Rary, 3 Black. 298 Self v. Gardner, 15 Mis. 480; Townshend on Slander, 259 et seq.

    2. If the provocation offered to be proved had been on a charge of stealing the horse of the Plaintiff in error, whether commenced on his complaint or that of a stranger, it would be equally inadmissible.
    3. But these proceedings, which were offered to rebut malice on the part of Huson, show that Dale was discharged on his examination on the sole testimony offered by the People.
    III. The third offer was of evidence sought to be brought out by a question to the plaintiff in error, while a witness in his own behalf, after stating that before the speaking of the words there were reports in circulation in reference to the larceny of a horse by Green and Dale, and what several persons said about it, and that he had taken advice of counsel, Messrs. Beakes & Hawkins, as to what the offense was, he is asked to “ state what advice, if any, they gave you ?”

    It is well settled that testimony-that the defendant had been told by'any third person, even by one who personally knew the fact, that the defendant was guilty of the offense charged, could not be received under the general issue.—Thompson v. Bowers, 1 Doug. 321.

    Much less could the defendant’s talk with a third person who knew none of the facts, and simply expressed an opinion, based on the story told by the defendant to him. Such evidence had not the dignity of even respectable hearsay testimony.
    IV. The fourth proposition was to show that “he correctly stated the facts of the case to the counsel * * * and the advice given by the counsel as to whether it would constitute larceny.”
    This is also subject to the objections,
    That it related to the larceny of a horse which was the property of Mrs. Huson and not of the defendant.
    It stated no facts that it was proposed to prove. It did not state even what opinion was given by the counsel upon the statement which was made, and to the other objections above stated.
    V. The fifth proposition was to prove “what facts he stated to said counsel, and that he was advised by said counsel that such state of facts would constitute larceny.”
    The testimony thus offered- was of the same general character as the preceding, and liable to the same objections.
    VI. The testimony indicated in the last three propositions — that relating to conversations with the defendant’s own counsel — was in fact nothing but hearsay, a conversation in which all statement of facts was made by the party himself, and the opinion expressed was of' a stranger to them, based solely on the narration of the defendant below. If testimony can thus be made, to shield a slanderer from punishment, he can always easily protect himself. He has only to fabricate his facts and to take the ready opinion of some irresponsible lawyer and his tongue-license is perfect.

      VII. It may be claimed that the evidence offered and rejected in this case was offered merely for the purpose of showing that the defendant had reasonable ground for believing that the charge he made was true.
    The weight of authority seems to be that testimony of this kind is not admissible for any purpose.—1 Am. Lead. Cases 188; Purple v. Horton, 13 Wend. 10; Cooper v. Barter, 24 Wend. 105; Wagstaff v. Ashton, 1 Harrington 503; Petrie v. Rose, 5 Watts & S. 364 Kay v. Ferdigal, 3 Barr 221; Updegrove v. Zimmerman, 1 Harris 619; Boarland v. Hidson, 3 Grat, 45; McAlexander v. Harris, 6 Mumford 16.

    But whether this rule of exclusion be universal or not, it seems clear that it cannot be admitted except for the purpose of repelling the presumption of actual malice, where special damages, upon proof of an aggravated malice, are claimed by the plaintiff.—McGee v. Sodusky, 5 J. J. Marshall 185; Hart v. Reed, B. Monroe 166; King v. Root, 4. Wend. 114; Usher v. Severance, 20 Maine 9.

    In this case no proof was offered of special malice or claim made for special damages. The malice implied by the law cannot be rebutted nor the damages given by the law be diminished by any such evidence.
    VIII. But, if the Court erred in rejecting the offered proof, it is manifest from the record, that the plaintiff in error suffered no injury from it, and so the judgment should not be reversed.
   Christianoy, J.

This was and action of slander brought by Dale against Huson in the Circuit Court for Washtenaw County.

The slanderous words alleged in the declaration were that defendant below had said of the plaintiff, “lie stole my horse,” also the following: “By. Green and John Dale,” (meaning one Byron Green and the plaintiff), " stole my horse.”

The defendant pleaded the general issue only, without notice of special matter. The speaking of the words, of and concerning the plaintiff, was proved; and the plaintiff rested.

The defendant, Huson, then offered in evidence under the general issue to rebut malice, and in mitigation of damages, and for no other purpose, among other things:

1st. The record and files in a case then' pending in the same Court in a cause wherein Byron Green and said Dale were plaintiffs, and defendant Huson was defendant, brought in replevin to get possession of the horse (charged by the defendant Huson to have been stolen), and to show in connection therewith that said Dale directed the Deputy Sheriff who had the writ of replevin for service, not to serve the same, nor take the horse, until Saturday night, so that they, Green and Dale, could get possession of the horse and run him out of the county; and that the horse was so taken and run out of the county, which led the defendant, Huson, to believe that the process was used as a matter of form to obtain possession of the horse, and not on the ground that they claimed the horse as their property; and further to show all the facts and circumstances connected therewith merely to rebut any presumption of malice in speaking the words, and for no other purpose.

2d. The defendant having, in his own behalf, testified that there were reports in the neighborhood before the speaking of the words, of their having stolen the horse, that certain persons had told him they had stolen the horse and ran him off to Toledo, that several had told him he ought to take them up for stealing the horse; and that on Saturday before the words were spoken, he took advice of counsel, Messrs Beakes aud Hawkins (who are attorneys of this Court), as to what the offense was, and in substance (for such was the effect of the several offers upon this point), to show that he correctly stated the facts to his said counsel, and what those facts were; and that he was advised by his said counsel that such state of facts would constitute larceny.

These offers with others were rejected, the testimony excluded, and'the defendant excepted.

The rejection of this evidence is sought to be justified on the ground that its tendency would have been to establish the truth of' the charge imputed by the slanderous words; and that the defendant, having pleaded the general issue only without notice of justification, was not at liberty to introduce such evidence even for the purpose of rebutting malice and mitigating the damages.

No question in modern times has, perhaps, given rise to a greater amount of judicial controversy. The conflict in the decisions upon it is absolutely appalling. And the attempt to trace the line of mere authority through the maze of hostile decisions, would be calculated only to confuse and lead the mind astray from the real principles of justice involved in it, and could serve no useful end. A careful review of the decisions would require volumes and I shall not attempt it.

At the common law, prior to the decision in the case of Underwood v. Parks,—2 Strange, 1,200 — the question here presented would have been easy of solution. Because 1st — by the well settled principles of pleading (which that case did not undertake in this respect to change) no facts falling short of a complete defense could be set up by way of special plea to the action, and a mere partial defense, or facts going only in mitigation of damages, might ¡always be shown under the general issue. And 2d — the defendant in an action of slander was at liberty to prove the truth of the charge itself, under the general issue to rebut malice and mitigate the damages, though this would have constituted a full defense, had it been pleaded in justification.

But in Underwood v. Parks, the defendant, under the plea of not guilty, offering to prove the truth of the words in mitigation, the Chief Justice refused it; saying. “At a meeting of ,111 the Judges, upon a case that arose in the Common Pleas, a large majority of them had determined not to allow it, for the future, but it should he pleaded, whereby the plaintiff might be prepared to defend himself, as well as to prove the speaking of the words.”

It is clear from the terms in which it was announced that this was a new rule of pleading then for the first time introduced for the purpose of preventing surprise upon the plaintiff. And if the rule had subsequently been confined to cases like that in which it was announced, when the offer was to prove the truth of the words, which if pleaded would have constituted a full justification — the operation of the rule might have been rendered beneficent, and much of the conflict which has since arisen from it might have been avoided. But cases have been and will continue to be of frequent occurrence, in which the defendant, though he may have believed and had reason to believe the truth of the charge when uttered, cannot, and does not upon the trial, seek to establish the truth of the charge and is even willing to admit its falsehood, but wishes to show, in excuse, that at the time he uttered it, he bad reason to believe its truth and was not therefore actuated by that malice or degree of malice which might otherwise be inferred from the making of the false charge or from other evidence of malice introduced by the plaintiff. And, to apply the rule in question to this class of cases, must always produce the most glaring injustice to the defendant, depriving him of the benefit of all such mitigating circumstances, and compelling him to respond in damages to the same extent as if he had been actuated by the most vindictive malice.

The English Courts, and most of those in this country, have admitted, the authority of the rule laid down, in this case, and professed to follow it, though with the greatest possible diversity in its interpretation, and the extent of its application. The defendant, of course, has not been allowed to plead these mitigating circumstances, because they do not constitute a justification or complete defense. And in some of the English, and many of the American cases, when he has undertaken to introduce them under the general issue in mitigation, he has been told that they are inadmissible under the rule in Underwood v. Parks, because he has not insisted upon the truth of the words by a plea or notice of justification. If, on the other hand, he has put in such a plea or notice, and failed to sustain it by the proof; then, under another rule of a most arbitrary and anomalous character (which has fortunately been abolished in this State and many of the other states by statute), his plea or notice was held to be a repetition of the slander in the most solemn form, conclusive evidence of malice and an aggravation of the damages.

It is universally conceded that some degree of malice in the defendant is essential to the maintenance of the action. This malice is sometimes said to be either express or implied ; but in both cases it is actual malice, or malice in fact, the difference being only in the mode of proof; and in both cases the burden of making this proof rests upon the plaintiff. What is called express malice is shown by some affirmative proof beyond that of the false and slanderous words; while implied malice is that which is naturally inferred as a presumption of fact from the proof of the publication of the false and injurious charge, on the familiar principle that a man is presumed to intend the natural and ordinary consequences of his own voluntary acts, and that he would not therefore make a false charge injurious to another without intending to injure him, unless under circumstances which indicate an innocent intention. But in both cases alike it is actual malice which the law contemplates. Such being tbe principle, it follows as a necessary result, and is very generally admitted by the authorities (however differing in other respects), that the amount of damages to be recovered should, to some extent, be governed or graduated by the degree of malice by which the defendant was actuated. And, accordingly upon this principle, (for it can be upon no other), most, if not all, the cases which profess to follow the authority of Underwood v. Parks, though differing in many other respects, toto ccelo, yet entirely concur in this, that the plaintiff may, for the purpose of enhancing or aggravating the damages, give other and affirmative proof of actual malice beyond that which is to be inferred from the false charge; such as the repetition of the same charge on other occasions, or other facts tending to show' a vindictive motive; and some cases have gone so far as to admit evidence of other and independent slanderous charges for this purpose. And yet the Courts in several of the States, professing to follow the rule in Underwood v. Parks, have often in the same case in which they have allowed the plaintiff to give such evidence to enhance the damages, practically held the defendant precluded from giving any evidence tending to rebut malice and to mitigate the damages. On principle, independent of artificial rules and in Courts which recognize justice as one of the ends to be attained-by a judicial trial, it would certainly seem that these must be reciprocal rights on the part of the plaintiff and the defendant, and that the plaintiff could not be allowed to give such additional proof of actual malice to enhance the damages without, at the same time and upon the same principle, allowing the defendant to show any facts to rebut the malice and to mitigate the damages. Because the rule in Underwood v. Parks did not allow the defendant to prove and rely upon the truth of charge even in mitigation, without pleading it in justification, it was supposed to follow, as an inevitable logical consequence, that he could not be allowed to show any facts which might tend to establish the truth of the charge. This was the rule actually adopted in some of the States, and which in some of them would seem to be still recognized. And, as any evidence the defendant might offer to show that the charge was made under circumstances which might have induced him to believe it true wheu made, would naturally, and in most cases, perhaps, necessarily tend to prove the truth of the charge, the defendant was thus absolutely precluded from makiug any defense, even xby way of mitigating the damages, merely because he could not make a full defense to the whole cause of Action: while the plaintiff was at liberty, in the same case, to introduce affirmative evidence beyond that to be inferred from the false charge itself, to show a higher degree of malice for the purpose of enhancing the damages; such was the case of Thompson v. Bowers in this State, (1 Douglass 321) relied upon by the defendant in error. And this was in accordance with the settled rule of decision in several of the States, but certainly not in accordance with the principles of the common law. It was adopting one measure of right for the plaintiff, and another and a. very different one for the defendant, or rather, denying his right altogether, by allowing the plaintiff to prove what the defendant was denied the right of controverting.

This was claimed to be the inevitable result of the severest logical deduction from the rule in Underwood v. Parks. And defendants must have been inclined to admit its severity, though they may have failed to discover a flaw in that logic which rendered it, to them, inevitable. Inexorable logic was vindicated, if not propitiated, by the sacrifice of of defendants’ rights. ,

Legal logic should be constructed upon principles at least akin to justice, the attainment of which should be its end and object: and by its tendency to this end its soundness should be tested. As the surveyor tests the correctness of the line in his front, by taking a back sight along the line he has run, the legal logician may. often profit by pausing to test his logic by its results. Accidental evils, it is true, will sometimes result from the soundest rules devised by human wisdom, when applied to the peculiar facts of particular cases. But when the natural and ordinary tendency of a rule is generally and systematically to produce injustice, without any compensating benefit, the logic upon which it is supported may safely be suspected of a lurking, fallacy somewhere.

Recoiling from the gross injustice of the rule when carried to the extent of excluding all evidence in mitigation which might tend to prove the truth of the charge, the English Courts (especially in the later cases) and those of some of our sister States have held that facts and circumstances, though tending to prove the truth of the charge, may be received in mitigation/ provided they fall short of establishing its truth. This, though better calculated for the purposes of justice, has not been placed upon a very clear or well defined ground. It necessarily leaves it for the Court to pass upon the weight of the evidence in deciding upon its admissibility. If all the hardships and injustice, which have thus arisen from the attempts to apply the rule in Underwood v. Parks to other cases, were the necessary result of the rule there adopted, I should without hesitation, concur with Selden J. in Bush v. Prosser 11 N. Y., 357, etc., that the case should be entirely repudiated, as clearly in conflict with the principles of the common law, and subversive of justice. But the present case does not require us to go so far. And, in my view, the rule actually adopted and intended to be adopted in that case is not justly chargeable with all the injustice which has resulted from the attempts to apply it in other cases, but most of the evil consequences have resulted, not from the case itself, but from an unwarrantable extension and misapplication of the rule to cases not coming within its principle.

In that case the defendant’s offer was to prove under the plea of not guilty, in mitigation of damages, the truth of the words charged as slanderous. This, if pleaded would of itself have constituted a full justification or complete defense, when sustained by the proof. Such proof, — that is, proof of a fact which, if pleaded, would constitute a full justification and bar to the action, it was held should not for the future be given even in mitigation, unless pleaded. And if the defendant believed himself prepared to prove the truth of the charge, there would seem to be no injustice in requiring him to plead it, so that the plaintiff might come prepared to meet it. The only hardship which could result to the defendant from this course, was one which did not arise so much from this rule itself, as from that anomalous rule which, in case of a failure to establish the plea to the satisfaction of the jury, made it conclusive evidence -of malice, and aggravated the damages. To give the truth the effect of a full justification or bar to the action it was always necessary to plead it, though up to the time of this case, it had been admissible in mitigation under the general issue. This was the full extent of the change introduced by the new rule. It did not purport to extend to a case where the fact offered to be proved did not, ipso facto, constitute a full justification, if pleaded; but only to such as might have been pleaded in justification. The Court were not guilty of the absurdity of requiring a defendant to plead mere matters of mitigation, not amounting to a full defense, and which could not therefore, on principles of law, be pleaded. Facts which might merely tend to prove the truth of the charge, or mere matter of evidence, could not be pleaded in justification, but the fact itself, the truth of the charge must be directly and positively alleged. And this was the fact offered to be proved in that case. The rule adopted merely said to defendants, “ if you are prepared to prove the truth of the words, which, if pleaded would constitute a justification — you must take the risk of pleading it, so that the plaintiff may not be taken by surprise on the trial.” It is doubtless true that, within the spirit of the rule intended to be established by the case, the defendant would not be at liberty to introduce evidence tending to prove the truth of the charge for the purpose of establishing its truth.

But I am utterly unable to discover any thing in the case, which would require the rejection of any evidence tending to show that defendant believed the truth of the charge when uttered, for the purpose of disproving malice and mitigating the damages; especially if offered in a manner and under circumstances, amounting to a clear disclaimer of the right to insist upon the truth of the charge, or an admission that it was false in fact, though when made believed to be true.

The legal effect, as it seems .to me, of the rule actually laid down by the Court was substantially this; that under the general issue, without'a plea of justification, the defendant should not be at liberty to insist upon the truth of the slanderous words; but the words being proved, the defendant, by omitting to plead the truth in justification, was to be considered as, in legal effect, admitting their falsehood. And in this view of the case, the very offer of such evidence as last supposed, though its tendency might otherwise be to prove the truth of the charge, would (under the operation of this rule) when considered in connection with the neglect to plead in justification, constitute a clear and conclusive admission, that the charge was false in fact though at the time he made it he may have believed it to be true. But more especially, as it seems to me, would this be the case when the offer, in its very terms, shows that it is to be introduced only for the purpose of rebutting malice and mitigating the damages. Had this, which seems to me to have been the substantial legal effect of the rule in that case, been generally accepted as its true exposition, volumes of conflicting decisions and judicial controversy, might have been avoided. But complete justice could not always be done to the defendant under the rule so long as Courts should adhere to the arbitrary rule that a plea or notice of justification not sustained by the proof, was conclusive evidence of malice in aggravation of damages. But where this last rule has been 'abandoned, or as in this State and many others, abolished by statute, I can see no hardship to the defendant, nor any difficulty in the way of a fair trial likely to result from the rule in Underwood v. Parks, as I have endeavored to explain it. And the rule in that, case, so far as it requires the defendant, if he intend to rely upon the truth of the charge in any way, to plead it, has been so long and so generally adopted and the corresponding practice so thoroughly settled, that I see no satisfactory reason for disturbing the rule thus limited.

The evidence offered by the defendant in the present case on the two points already stated was expressly offered for the purpose of rebutting malice and to mitigate the damages, and for no other purpose. This offer, under the pleadings and in the manner thus made, must be treated as involving a disclaimer of the truth of the words, and a conclusive admission that they were not in fact true; but this in no way precludes the idea that the defendant, at the time, may have believed them to be true. And he had the fight to introduce any facts and circumstances tending to show grounds for such belief at the time of the speaking of the words. This could not prejudice the plaintiff when accompanied with the admission that the charge was, nevertheless, untrue in fact. The evidence offered would, we think, have had a clear tendency to show such grounds of belief on the part of the defendant, and thereby tended 'to weaken or rebut the inference of malice otherwise to be drawn from the utterance of the false charge, and thus properly to lessen the amount of damages to be recovered.

This principle was fully admitted and applied by this Court in Farr v. Rasco, 9 Mich, 353, which, in its reasoning (with which we are entirely satisfied), must be regarded as having thus far shaken the authority of Thompson v. Bowers.

But it is further objected that this evidence was inadmissible on another ground; that the defendant admits that the property of the horse referred to in making the slan^ derous charge, was vested in the wife of the defendant and not in himself, and that the evidence offered would not have‘tended to show that defendant believed the plaintiff had stolen his horse as declared by the slanderous charge.

'We regard the objection under the circumstances of this case, as more technical than sound or just. It might, perhaps, have had more weight if the defendant had attempted to justify. But there does not appear to have been any dispute that this was the same horse intended to be referred to by the defendant .in making the charge; and it would be for the jury to find from the evidence whether this was so. The evidence of the replevin suit offered by the defendant would have shown that the horse must have been in the defendant’s possession when replevied by the plaintiff and Green, and would therefore naturally be spoken of by the defendant, under such circumstances, as his horse.

Indeed, it would be very natural for any man who had merely borrowed or hired a horse for the time being and from whom he should be taken, under circumstances which induced the belief that he was stolen, to say of the person who had taken the horse away: “ he has stolen my horse” quite as natural as to say under the same circumstances : “ he has stolen the horse of A. B.” (the owner). And the malice of the charge, though it should prove to be false in fact, would not be likely to be the greater or less on account of tbe technical point of the actual right of property. And the relation of husband and wife and the almost universal custom of using such property in common, either husband or wife speaking of it as his or her property, is not to be overlooked, and would be very proper for the consideration of a jury.

We think the evidence was erroneously rejected. The offer of the defendant to introduce' the record of a criminal complaint made against the plaintiff and others by the wife of the defendant, for stealing the horse (which was described in the complaint as her property) and the proceedings under the same, showing that the plaintiff, with the other parties charged with the offense, was discharged on the evidence given on the part of the People before the Justice, was, I think, properly rejected. Had the complaint been made by and on the oath of the defendant himself, instead of his wife, it is possible it might have had some tendency to show a belief on his part, at the time that the charge was true. Upon this however we express no opinion. But not being made or sworn to by him, and the plaintiff having been discharged on the evidence given for the People, I can see no intelligible ground, on which the evidence, if given, could have had any legitimate tendency to rebut malice or to mitigate damages.

The judgment of the Circuit Court should be reversed with costs, and a new trial awarded.

The other Justices concurred.


source: Caselaw Access Project

author: Cooley Oh. J. Campbell J.

license: Public Domain

text:
    Jesse Hoyt v. The City of East Saginaw et al.

      Taxation for Local Improvements. It is competent for the Legislature to authorize municipal corporations to assess the expense of local improvements upon property deemed to be particularly and specially benefitted thereby in proportion to the benefit received. The Constitution does not expressly prohibit it and there is nothing ,in the nature of the power of taxation inconsistent with it.

      Mode of assessing benefits: Within defined districts: By commissioners. The Legislature may confer on the Common Council power to judge what property is specially benefitted by the improvement and to define the taxing district accordingly; and the mode prescribed by the charter to East Saginaw, of apportioning the tax throughout the district which the Council had defined, in proportion to the benefit which the several parcels of land receive, as determined by impartial commissioners, is free from objection.

      Common Council; Jurisdiction. When a statute provides that when a City Council shall decree an improvement necessary, they shall” so declare by resolution ; the declaration of the necessity for the improvement, is a distinct preliminary act, which is indispensable to give the Council jurisdiction and without it the whole proceeding is a nullity.

      Heard May 7.

      Decided July 12.

    Appeal in Chancery from Saginaw Circuit.
    The bill in this cause was filed to 'enjoin the collection of an assessment for an improvement oh Genesee street in Bast Saginaw. The greater part of the ’cost of which was assessed upon the property in the vicinity benefitted, in proportion to the benefit. A perpetual injunction was granted in the Court below.

      John J. Wheeler, for complainant.
    1. The provisions of the Charter regulating proceedings for making improvements and assessing taxes therefor, are unconstitutional.
    The expense of the improvement is áscertained by the Council, the amount to be specially assessed and property deemed to be benefitted, determined by the Council, and their commissioners are appointed to assess that amount on the property designated in proportion -to the benefit each piece shall be deemed to have acquired by the making of the improvements:—Laws of 1868, pp. 1,010. 1,011, 1,012; Latos of 1861, ¶. 50.

    There is not and cannot be any rule of apportionment in this case:— Williams v. Detroit. 2 Mich. 560; Woodbridge v. Detroit, 8 Id. 274.

    In the case cited in 2 Mich., great styess is put on the fact that there was a uniform rule of apportionment. See pp. 570 and 571.

    In the East Saginaw Charter, there is and can be no rule. Each case stands by itself, and is left to the whim, prejudice, or judgment of the Council in being, both as to amount to be assessed and property on which to be assessed, and then each piece of property is left to the opinion of an irresponsible tribunal appointed for the particular case, and no other. This is directly condemned in 2 Mich., p. 572, and 8 Mich., 292 and 293.

    2. The law provides (L. 1859, p. 997, §§ 1 and 2) that the necessity for making the improvement shall be determined by a resolution of the Council, and we submit that a resolution ordering the improvement does not comply with the law.
    3. The resolution of the Common Council is not such a resolution as the charter prescribes.—L. 1859, p. 977, § 2.

      B. J. Brown, for defendant.
    1., The provisions of the charter of the city of East Saginaw authorizing special assessments for public improvements are not unconstitutional, inasmuch as such assessments are required to be made upon the owners and occupants of lands ben ¿fitted, in proportion to the advantage which each shall be deemed to acquire by making such improvements. Vide Title 6 of charter, §§ 37, 38, 39; 1 Kent's Com. 448; People v. Mayor of Brooklyn, 4. N. Y. 419; Woodbridge v. Detroit, 8 Mich. 274; Cooley on Const. Lim. 498, et seq.; Sears v. Cottrell, 5 Mich 256.

      2. If the object of the charter in declaring that the tax shall be and remain a lien from the confirmation of the assessment roll, is other than that of regulating the relation of vendor and vendee, it is not clearly apparent. At all events the complainant can found no claim upon it to the equitable interference of the court, as the bill does not aver that there were not goods and chattels out of which the tax could have been satisfied. The tax remained a personal charge against the complainant, and it was the duty of the Marshal to enforce collection by distress and sale of personal property.—Sec. 44, Title. 6, of Charter. In general, a distress and sale of personal property to satisfy an illegal tax, will not be restrained by injunction.—Blackwell on Tax Titles, 566; Williams v. Mayor, 2 Mich. 562; Green v. Mumford, 5 Rhode Island, 472; Wilson v. Mayor, 4 E. D. Smith, 675; McCoy v. Chillicothe, 3 Ohio, 370; Van Doren v. Mayor, 9 Paige, 388; Mooers v. Smedley, 6 Johns. Ch. 29; Dodd v. Hartford, 25 Conn. 232; Betts v. Williamsburg, 15 Barb. 255.

    3. A court of equity will not restrain the collection of a tax merely because the proceedings on which it is founded are irregular or even void. It must also appear that the proceedings are inequitable, that it will be against conscience to allow them to go on, and that the party applying for relief is in no fault.—Jackson v. Detroit, 10 Mich. 248; Betts v. Williamsburg, 15 Barb. 255; Hovey v. Smith, 1 Id. 372; Warden v. Board of Supervisors, 14 Wis. 618; Whitney v. Brunette, 3 Id. 621; Miltimore v. Supervisors, 15 Id. 9; Bond v. Kenosha, 17 Id. 284; Dodd v. Hartford, 25 Conn. 232; Susquehanna Bank v. Board of Supervisors, 25 N. 7. 312; Albany Northern R. R. Co. v. Brownell, 24 Id. 345.

    The resolution of the Common Council of June 18th, 1867, affirms and ratifies all the proceedings of that body, the contract for the work inclusive — which it does not in terms rescind. This is the necessary effect of all subsequent proceedings which are based upon such ratification and especially of the confirmation of the roll.—Cushing’s Law and Practice of Legislative Assemblies, §2,104; Peterson v. Mayor, 17 N. Y. 449; People ex rel. Smith v. Flagg, Ld. 584; Str. 1,066; 4 Term Rep. 109; Commonwealth v. Herrick, 6 Cush. 465; People v. Mayor 32 Barb. 35.

   Cooley Oh. J.

The bill in this case was filed to enjoin the collection of an assessment which had been made for the grading, ditching and planking of Genesee street in the • city of Bast Saginaw. It appears that the Common Council, by 'resolution, determined that the cost and expense of the improvement would be the sum of $15,612, and that the property in the vicinity of the improvement would be benefitted by it to the amount of $11,700; and that they consequently assumed on behalf of the city the payment of $3,912, and directed the sum of $11,700 to be assessed upon the property in the vicinity which was particularly described in their resolution. The assessment was made accordingly, and the complainant who was owner of a portion of the property described and assessed, seeks to enjoin the assessment on- various grounds which are particularly set out in his bill.

It is not disputed that the provisions of the charter are such as, if valid, will warrant this mode of apportioning and assessing the expense of such improvements; and on reference thereto it appears that they establish a basis for the assessment, and require it to be made by commissioners appointed for the purpose upon the several parcels of land in proportion to the benefit each shall be deemed to have acquired by the making of the improvement. It is claimed, however, that those provisions are in conflict with the constitution and void because, as it alleged, there is and can be under them no rule for tbe apportionment of the expense, inasmuch as the Council, according to their own “ whim, prejudice or-judgment’” determine upon what property the expense shall be levied, and “an irresponsible tribunal appointed for the particular case and no other” makes the assessment. To this position the cases of Williams v. The Mayor &c., 2 Mich. 560 and Woodbridge v. Detroit, 8 Mich. 274, are cited, neither of which I think will give it any countenance.

I have no doubt it is entirely competent for the Legislature to authorize municipal incorporations to assess the whole or any portion of the expense of these local improvements upon the property deemed to be particularly and specially benefitted thereby, in proportion to the benefit received, if in the judgment of the Legislature that rule of apportionment is most just and equitable. There is nothing in the constitution which expressly prohibits it, and nothing in the nature of the power of taxation which is inconsistent with it. This mode of assessing such burdens has been repeatedly sustained by the Courts of other States and is supported by the reasoning of the Court in the case of Williams v. The Mayor &c., and by that of the majority of the court in Woodbridge v. Detroit. I shall content myself, therefore, in this case with a reference to those cases and to that of Motz v. Detroit, just decided.

Whatever may be the basis <?f apportionment for such a tax, a taxing district must necessarily be established; and the Legislature in the charter before us have deemed it proper to empower the Common Council to judge what property is specially benefitted by the improvement and define the taxing district accordingly. As the question in such case is one which can only properly and intelligently be decided upon personal inspection of the improvement and the manner in which it will affect the neighboring property, it is obvious that the Legislature is not the .proper authority to pass upon it, and the natural and proper course would seem to be to refer it to some local tribunal. If the Legislature consider the Common Council the proper tribunal for this purpose, there is not only no constitutional principle which precludes the question being referred to their judgment, but there is a manifest propriety in the reference. And the mode prescribed by the charter of apportioning the tax throughout the district which the Common Council have defined in proportion to the benefit which the several parcels of land receive, as determined by impartial commissioners, is equally free from valid objection.

The charter not being found defective, it remains to be seen whether the city authorities have complied with its provisions in the various steps taken by them and which are contested in this suit. Nearly every proceeding of the Common Council is attacked as irregular, illegal and void; but as we find ourselves compelled to hold that the first step in the proceedings, which must be the foundation of all the others, and without which the Council would have no jurisdiction to proceed.at all, was not taken in compliance with the charter, it does not seem to be important, and is not in accord with our usual practice to consider the objections taken to the subsequent proceedings, all of which are rendered immaterial by the neglect to comply with the law in the preliminary action.

The charter of the city of East Saginaw, provides that “ the Common Council shall have full power to lay out, establish, open, extend, widen, straighten, alter, close, fill in or grade, vacate or abolish any highways, streets, avenues, lanes, alleys, public grounds or spaces m said city whenever they may deem it a necessary public improvement,” and that “Avhenever the Common Council shall deem any such improvement necessary, they shall so declare by resolution, which shall be drawn by the attorney of the corporation, and said resolution shall describe the contemplated improve ment.”—Laws of 1859, p. 997, §§1 and 2 of Title 6. This is made by the charter a necessary preliminary to the ordering by the Council of any of the public improvements here enumerated or to the levying of any assessment therefor; and however unimportant may seem this declaration in particular cases, the Council have no authority to dispense with it.

From the records of the Common Council, it appears that the first action, in reference to this improvement was had on the eleventh day of June, 1866, when a petition of citizens was presented asking for the grading, turnpiking and planking of Genesee street, from Jefferson street to the German Colony road; whereupon it was “Resolved, That the petition be received, and the improvement be ordered, the grading and turnpiking and one-half of the expense of planking to be paid by the property benefitted, and the expense of one-half the planking to be paid by the city at large.” On the same day and subsequently other resolutions regarding the implffvement were adopted, more particularly ordering the improving, grading, ditching, turnpiking, draining and planking of Genesee street between the points above mentioned, and prescribing the manner in which it should be done, and apportioning the amount of expense between the property benefited and the city at large; but there is no resolution entered upon the minutes of the Council which, in the words of the charter, declares the improvement necessary, or comes any nearer such declaration than the one above quoted.

It may seem perhaps, that the Legislature have been over particular in requiring from the Council an express preliminary declaration that they deem the improvement necessary, when the fact that they order it to be made is evidence that'such is their opinion; and it has been argued in this case that the resolution of.June 11, 1866, ought to be accepted as equivalent to the one made necessary by the charter, and as a sufficient compliance with the legislative requirement. It is evident, however, that if we hold this resolution sufficient, we also hold that the provision cited from the charter is idle, and is one a compliance with which may be dispensed with in any case. We have no authority to treat any part of a legislative enactment which is not ambiguous in itself and is capable of reasonable application, as so far unimportant that it is matter of indifference whether it is complied with- or not. We must suppose the legislature sarv sufficient reason for its adoption, and meant it to have effect; and whether the reason is apparent to our minds or not, we have no discretion to dispense with a compliance with the statute.

We can well conceive, however, that the Legislature might suppose it possible that members of a city Council could be induced to vote to direct a certain work to be done when they would hesitate to say, upon their official oaths, that the work was actually necessary if that was the specific question upon which -they must record their opinion.

It is sometimes the case, that some portion of the legislative enactment prescribing the course of proceeding to be pursued by public officers, can be treated as directory merely, and not mandatory; so that a failure in strict compliance will not defeat the whole proceeding; but this can never be the case, where that which is required to be done is in the nature of a condition precedent to subsequent action, and not simply a step in the course of the proceedings prescribed with a view to a regular, orderly and prompt transaction of the business in the progress of which such step is to be taken. The courts in their anxiety to sustain the action of public officers, where irregularities have occurred without the intervention of bad faith, have gone to the very extreme in holding legislative enactments to be merely directory, and have perhaps sometimes made decisions which dispensed with those things which the Legislature intended as essentials. The duty of the courts is to examine the statute carefully with a view to giving the legislative intention effect; and they ought to sustain defective proceedings only in those cases where it is fairly inferable that they observe that intent more nearly by sustaining them than by setting them aside on account of the omitted formality. Such inference is not admissible in reference to those things which are preliminary and jurisdictional.

It is evident, I think, that under the charter of East Saginaw, the declaration of the necessity for the improvement is a distinct act from and precedes the order that the improvement shall be made. It is the commencement of the proceeding, and is as indispensible to give the Council jurisdiction as is process or the voluntary appearance of parties in civil actions to give jurisdiction to a court. It is the first of several steps, which if duly and regularly taken, may result in fixing a lien upon the property of the citizen, and even in depriving him of it against his will. This step 'having never been taken, the whole proceeding is a nullity.

The formal objections which are taken by the defendants to the remedy the complainant has sought, are all met by previous decisions of this court.—Palmer v. Rich, 12 Mich. 414; Scofield v. City of Lansing, 17 Mich. 437. We think the Circuit Judge was right in-decreeing a perpetual injunction, and the decree must be affirmed with costs.

Christiancy and Craves JJ. concurred.

Campbell J.

I concur in setting aside the proceedings for the preliminary irregularity mentioned by the Chief Justice.

I do not construe the statute throughout precisely as it is accepted by the majority of the court. The charter provided a choice of two methods for ordering paving to be clone. One is by requiring each owner to pave in front of his own property. The other is by establishing a district, within which the expense is to be apportioned on all property, according to its relative benefits.

I have expressed my views heretofore upon the former question, and it is not involved in this case, which purports to have arisen under the district system.

I concur entirely in the authority of the Council, to create districts over which the tax is to be spread. I think it is the only system which is admissible without violating •the principle of taxation, which should be applied over some large or small territory impartially. But it seems to me that to allow the expenses to be apportioned without reference to any uniform rule, and to be charged to each lot to the extent to which the commissioners consider it benefitted, is to allow them to fix the tax according to their own will, and by no system whatever. Unless there is some rule whereby it can be determined whether the charge against lands is correct or not, the burden is not, in my judgment, in any true sense a tax. I do not see why the 'same principle would not allow the City or the Legislature to single'out arbitrarily the persons or the property and to declare what each one should pay. I do not think that any tax can be sustained, where the unchecked will of a commissioner can fix the sum which each lot is to pay according to his own fancy, and without reference to any standard by which a court can try its correctness and uniformity.

Nor do I think this a proper construction of the charter. That requires the commissioners to assess or estimate the value of each lot. We cannot properly hold any such provision to have been inserted without some reason, and the only legitimate purpose of the valuation must have been to furnish a means of apportionment. Taxation according to value is the usual, and I think the only admissible, method under our constitution. Requiring it under tbis charter, gives natural effect to all of the provisions, while unless this is done, there is a valuation made for no purpose whatever. I think the charter can be maintained as valid in this way, and that such is the natural and proper construction.

While I concur in the result, therefore, I think also, that the charter has not been complied with, in the method of assessment. TJpon the remaining questions, as no opinion has been expressed by the rest of the court, there is no occasion to make any remark.


author: Cooley, Oh. 0. Graves, J.

text:
    Henry Van Sickle v. Mary E. Kellogg.

      Justices' Cou/í'ts: Demand for Jury. Where a party to a suit before a Justice of the Peace has failed to demand a jury after the joining of the issue and before an adjournment of the case, but calls for one on the adjourned day, and the opposite party objects, it is competent for the Justice to order a jury to be summoned for the trial of the cause.
    The neglect to demand a jury within the time prescribed by law is a waiver only of the right; it does not deprive the Justice of the power to order a jury in his discretion.
    The power which the Circuit Courts exercise to permit a jury trial when it has been waived by the parties is among the powers conferred on Justices of the Peace in the grant of “ all such powers for the purpose of exercising jurisdiction as are usual in Courts of Record except the power of setting aside a a verdict and arresting judgment thereon.”

      Heard May 12.

      Decided July 12.

    Error to Oakland Circuit.
    Tbis was an action brought into the Circuit Court for the County of Oakland by general and special appeal from the judgment of James S. Dewey, Esq., one of the Justices of the Peace for that County. The ground of the special appeal was that the Justice, after issue joined and an adjournment, had granted the motion of the plaintiff and ordered a trial of the cause by a jury. The special appeal was disallowed in the Circuit Court and after trial and judgment for the plaintiff below upon the general appeal, the defendant below brings the case into this Court by writ of error.

      W. B. Jaclcson, for Plaintiff in error.
    The demand in this case was not made until after issue joined and after the cause was adjourned, when the parties appeared upon the adjourned day for trial. It was then too late, and the party had waived her right to the same.—2 Comp. Laws, page 1,065, §8,756; Dempsey v. Page, 4 E. D. Smith, N. Y. p. 219; Gale v. Barnes, 1 Cowen, page 235.

    The Constitution of this State, Article 6, Section 27, provides, “ that the right to trial by jury shall remain, but in all civil cases, shall be deemed to be waived unless demanded by one of the parties in such manner as shall be prescribed by law.” If a party voluntarily abstains from demanding the right to trial by jury, in a given case, at the time and in the manner prescribed by law, we think it may be judicially held that it is waived. “ Hence the statute enacting that such act shall be regarded a waiver, is valid.”.—8 Ind. p. 218.

      “ The right of trial by jury is not an attribute, or inalienable in its nature and character, but rather a privilege, which may be waived or forfeited.—Wright, Justice—Wilkins vs Traynor 14 Iowa, p 393; Hogan v. Sherman, 5 Mich. p. 60; Hill v. The People, 16 Mich. p. 357 S. P; 15 Mich. p. 325.

    C. & C. S. Draper, for defendant in error

      Cite Wheeler v. City of Chicago, 24, Ill. 105; Bonner v. City of Chicago, 24, Ill. 105; Parks v. Goodwin, 1 Doug. Mich. 56; Rawson v. Parsons, 6 Mich. 401; People v. Allen, late Sheriff of Ontario, 6 Wend. 486; Doll v. Anderson, 27 Cal. 248.

   Cooley, Oh. 0.

The principal question in this case is, whether, where a party to a suit before a Justice of the Peace, has failed to demand a jury after the joining of issue and before an adjournment of the case, but calls for one on the adjourned day and the Court permits one to be summoned against the objection of the opposite party, a trial of the case by this jury is such a mis-trial as would require the Circuit Court to reverse, on special appeal, the judgment rendered on their verdict.

The Constitution, Article VI §27, provides that “ The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases, unless demanded by one of the parties in such manner as shall be prescribed by law.” The statutory provisions respecting the demand for a jury trial in Justices Courts are as follows: ” After an issue of fact joined, and before the first adjournment and before the Justice shall proceed to an investigation of the merits of the cause by an examination of a witness, .or the hearing of any other testimony, either of the parties or the Attorney of either of them, may demand of the Justice that the cause be tried by a jury and pay to the Justice the lawful fees of the jurors.”—Comp. L. §3,755. “Either party who shall not, at the time of joining issue in any cause, and before the same shall be adjourned, require a trial of such cause by jury, shall be deemed to have waived the same.”—Comp. L. §3,756.

It will be seen by an examination of the constitutional provision, that what the party waives by a failure to make such demand as shall be prescribed by a law, is that absolute and unqualified right to a trial by jury which the Constitution secures to him when the demand is made, and which is dependent on the will or discretion of no other person and cannot be taken away from him. The Constitution does not in terms prohibit a trial by jury in case the statutory demand is not made, or employ any words which, indicate an intent that, in such a contingency, the trial must be by the Court; but the provision is limited- to a negation of the right in a party who has failed to make the demand to insist upon such a trial afterwards. And the question remains whether the Justice may not in his discretion, notwithstanding a failure to make the demand, allow the party a jury trial, or whether, if he does so, the opposite party can complain of such trial as a legal injury

The right of trial by jury in all cases proceeding after the course of the Common law, has always been deemed an important privilege, of which the party was not to be deprived without his --onsent even by legislative enactment. Indeed in criminal trials the party himself was not allowed to waive it, and his consent that the Judge alone should adjudicate his case,. was absolutely void in law. The constitutional principle which underlies the right is one to which the people governed by the Common law have clung with, perhaps, more tenacity than to any other, and they have justly regarded it as not preserving simply one form of investigating the facts in preference to another, where both would have attained' the same result, but as securing the mode of trial which was best calculated to ensure a just result and to secure the citizens against the usurpation of authority and against arbitrary or prejudiced action on the part of single individuals, who chanced to be possessed of judicial power.

The constitutional provision we have quoted introduces a change in this particular, but it is very obvious that its purpose, as well as that of the statutory enactments based upon it, was only to allow parties by their voluntary consent, to submit their causes to the decision of single magistrates. The party’s consent is to be had, either expressly or by an equivalent implication, in every case in which jury trial was before a matter of right; and so long as the privilege was regarded in law _as a valuable one, we1 can hardly be at liberty to look upon any provision of law respecting it as one designed to absolutely debar the privilege on the first opportunity when, on technical grounds, the party could be considered in default in his demand.

In the Circuit Courts under the same provision of the constitution, power is reserved to the Courts to order a jury, whether demanded -by the parties or not, in all actions of tort, and in all other actions the subject matters whereof are, in the opinion of the Court, peculiarly proper for the consideration of a jury. Laws of 1859, p. 150. No one, we presume, has ever supposed that the constitution was violated, or the parties wronged by conferring this power upon the Court, or by the Court exercising it; and yet if the constitution of its own force absolutely debars the party of his right to a jury trial, in every case where he has failed to demand it in the manner prescribed by law, and requires a trial by the Court in such cases, it is apparent that no power can be conferred upon the Court to give a trial by jury. A legislative permission to the Court to order a trial by jury, where in its judgment it considers such a trial most proper, may be as reasonably regarded as inconsistent with the constitution, as a power in the Court in its discretion to permit a party to call a jury after a failure to make the statutory demand. If either is a violation of the constitution, it must be because that instrument by implication forbids a jury trial where the demand is not made in season; and if either is inadmissi- ■ ble on this ground, both must be.

I assume, however, that the power thus undertaken to be conferred upon the Circuí t Courts is unquestionably constitutional, both because it has never been questioned, and because it seems to me quite in harmony with the real purpose, of the constitutional provision. Indeed it does not appear to me that any statutory provision would be requisite to confer upon the Circuit Courts the power to order a jury trial in any case where it was before admissible, if the power was left to depend upon the constitution, and there was no provision of statute apparently inconsistent. The constitution deprives the party of the right to insist upon it, but does not preclude the Courts from allowing or ordering it.

The chapter in the Compiled Laws' regarding Courts held by Justices of the Peace provides that “each of said Courts is hereby vested with all such powers, for the purpose of exercising jurisdiction conferred by this chapter as are usual in Courts of Record, except the power of setting aside a verdict and arresting judgment thereon.” That the power to permit a jury trial is usual with Courts of Record cannot be disputed, and as in the Circuit Court the right to demand a jury trial is only lost by a party on failure to make a demand in the manner prescribed by the rules of Court, (Laws of 1859, p. 150,) the Court would undoubtedly, I think, have power in its discretion to relieve against a technical failure to comply with the rules in making his demand, even if the Court saw no reason, in the nature of the case, why a jury trial should be ordered. But when by statute, the Courts of Record of the State which exercise a common law jurisdiction are expressly empowered to order a jury in their discretion in any case, the power must certainly, I think, be regarded as “ usual in Courts of Record, ” and consequently possessed by the Courts of Justices of the Peace.

I am therefore of opinion that no error appears in this record.

Whether, if the proceeding complained of were erroneous, it was one to be taken advantage of on special appeal, is one upon which no opinion is expressed.

The Judgment of the Circuit Court should be affirmed with costs.

Campbell and Christiancy JJ. concurred.

Graves, J.

I agree with the Chief Justice in the result reached by him, and I concur in most of the reasoning he has employed.

I do not deem it necessary, however, to the decision of the case to consider the scope or meaning of the provision in the Justices’ Act quoted by him, and which relates to the general powers of Courts held by Justices of the Peace, and I therefore reserve my opinion upon that subject.,


author: Graves, J.

text:
    Caleb Evarts v. John L. Smith.

      Slander : Words stated hypothetically: Variance. Slanderous words uttered in a conditional or hypothetical statement will not support an averment of slanderous words laid as a positive and direct assertion.

      Heard May 12.

      Decided July 12.

    Error to Oakland Circuit.
    This was an action of slander brought _ by John L. Smith v. Caleb Evarts. The slanderous words, as laid (Avith variations) in the declaration, were: “He (the plaintiff meaning ), swore to a lie.” The proof was that in a conversation with one Jones, referring to the testimony of the plaintiff, that the defendant “charged said plaintiff with having-sworn to a lie, if he, the said plaintiff, swore as said Jones alleged that he did swear.” The plaintiff had a verdict and judgment, and the defendant brought error.
    A• 0. Baldwin, for plaintiff in error.

      M. B. Crofoot, for defendant in error.
   Graves, J.

This was an action on the case for slander brought by Smith against Evarts in which the former recovered a verdict.

The slanderous accusation was set forth in the declaration as a positive charge of perjury made by Evarts; but upon the trial it appears that evidence was given on the part of Smith conducing to show that the imputed slander was uttered by Bvarts, in a conversation with one Bobbins J ones, and consisted of the statement, that if Smith had testified the day before in a case between Evarts and one Valentine, as Jones then represented, he had sworn to a lie. The plaintiff in error objected that this evidence would not warrant a recovery, unless it was likewise proved that Smith in fact testified as Jones represented; but the Circuit Judge held that' it would, and so left the case to the jury as to allow them to find a verdict for Smith, based upon proof of the conversation before mentioned between Jones and Evarts. This ruling left the objection of the plaintiff in error against the right of Smith to recover on this evidence alone, in full force, and the question is therefore upon the point made by such objection.

The slanderous charge was not set forth as a conditional or hypothetical statement, but was laid as a positive and direct assertion by Evarts, and this could only be maintained by evidence of an accusation in that form.

It was necessary that the evidence should correspond with the allegation so as to identify the specific slander set up and implicate Evarts in the very wrong laid to his charge. But the expression of Evarts to Jones and which was allowed as evidence to the jury to support the declaration, was strictly hypothetical, and hence wholly variant from the averment.

For this error the judgment must be reversed; but as this record is constituted, there is room to argue that no other evidence of slander was given than the conversation between Jones and Evarts, and as that could not support tbis declaration, with or without evidence that Smith testified as Jones represented, we do not feel called on to discuss the other questions argued before us.

The judgment must be reversed with costs, and a new trial ordered.

The other Justices concurred.