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1803.

V.

DOUGLASS.

cised it in a fair and reasonable manner, without which the apCommon-pointment could not be valid. That whether it was called an wealth appointment or an election was immaterial; for that where an authority may be exercised by several, equal opportunity of doing it should be given to all; and where this opportunity is oppressively withheld, it corrupts the whole proceeding. That the case of the King v. Malden did not apply, as the plaintiff did not elect himself; but the only point there decided was that he was not duly sworn in.

The opinion of the court was delivered by

YEATES J. (a) The words of the 17th sec. of the act of 23d Sept. 1791 are that "it shall and may be lawful for the mayor and

two aldermen of the city of Philadelphia and two justices of "the peace for the county of Philadelphia to appoint inspectors "of the prison of the city and county of Philadelphia on the 1st "Mondays of May and November in every year, and on any "other days when vacancies shall happen in the said office by "death resignation or otherwise." It appears to a majority of the court, that the legislature intended to vest in the mayor a certain legal discretion, which should be exercised in a fair, equal, and reasonable manner. The question is not, whether the mayor is bound to give formal notice to all the aldermen of the city, and justices of the peace of the county, when and where the appointment shall be proceeded upon: but whether when he has been called upon by persons of that description whom the law vests with a power of appointment, and who are desirous of exercising that right, he can legally refuse to give them information of the place and hour of appointment, and preclude them from giving their sentiments upon the subject. We are of opinion that he is not justified by law in this refusal; and thus proceeding to a nomination at an unusual hour and place is not such an exercise of his discretion as the law will warrant; because this would be in effect an assumption of the whole power by the mayor, which cannot be collected from the words of the law. One having a discretionary authority to appoint a fit person to a public office appointing himself, seems a solecism in terms; and it cannot be deemed the fulfilment of his duty. We perfectly concur with Mr. Recorder that whatever right the

(a) SHIP PEN C. J. was absent, from indisposition.

1803.

Common

mayor had in this appointment, it was improper to exercise it in the manner he has done; and therefore think good and legal grounds have been shewn to file the information prayed for by wealth the relators, in the nature of a quo warranto.

BRACKENRIDGE J. I concur in this opinion only so far as touches the case of John Douglass.

V.

DOUGLASS.

Rule absolute.

KENNEDY against GREGORY.

Saturday, December 31st.

In an action

where the proof is that

the plaintiff answered ci

ant may give in evidence

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THIS HIS cause was tried before Smith and Brackenridge, jus- of slander tices, at Nisi Prius in June 1803. It was an action on the case for a slander uttered by the defendant of and concerning the defendthe plaintiff in his business of school-master, "that he loved li- ant in reply to a question "quor," and "that he was given to drink," per quod he lost his implicating scholars. The pleas were not guilty and ju tification. The evi- ans dence of the slander was the testimony of one Samuel Brewster, ther" It is so" or "They that on his asking the defendant if Kennedy was given to drink, it say it is so," he answered either "it is so," or "they say it is so." The the defendcounsel of the defendant then offered a witness to prove, in mitigation of damages, that before the publication of the words in mitigation laid in the declaration, he had told Gregory that the plaintiff was that a person of damages given to drink. This evidence was objected to, and the judges told him were divided in opinion upon its admissibility. Smith J. thought lated. It it was inadmissible upon the issues then trying, but was willing seems also that the defendant should have the benefit of it, reserving the when the point. Brackenridge J. thought it admissible in mitigation of slander is spoken withdamages; but he asked the defendant's counsel whether, from out referthe case which the plaintiff had made to the jury, they thought ence, the detheir client stood in need of it. The evidence was not heard. in mitigation The court then charged the jury that the words did not appear of damages to have been spoken maliciously, but to have been used upon the slander an examination of the plaintiff's character, in which the com- was commumunity was interested. The jury however found a verdict for him by a the plaintiff, one hundred dollars damages.

what he re

that even

fendant may

shew that

nicated to

third person. Vide Morris Y. Duane.

1803.

KENNEDY

V.

Ingersoll obtained a rule to shew cause why there should not be a new trial, on three grounds: 1. That the verdict was against evidence. 2. That it was against the charge of the court. 3. That GREGORY. Competent testimony had been overruled. And although it was stated by one of their honours, that the testimony which had been offered was waived after the question put by judge Brackenridge, the argument upon shewing cause turned almost exclusively upon the third ground; a majority of the court in bank being of opinion that the testimony was not waived.

Ingersoll and Wells argued for the defendant. Hopkinson and Hare for the plaintiff.

SHIPPEN, C. J. having been prevented by ill health from sitting on the argument, gave no opinion.

YEATES J. The material question to be considered in this case is whether evidence proper in itself on the pleadings has been refused by the court on the trial.

From the statement of the evidence made by the presiding judge, it appears that Samuel Brewster one of the witnesses, on the defendant finding fault with the conduct of the plaintiff, asked him whether he was given to intoxication. To which the defendant answered either that the plaintiff loved liquor, or it was said so. David Newport was offered to prove that he had told the defendant the plaintiff was addicted to drink; on which the court was divided. It has been contended that the answer to this question was waived by the defendant's counsel. But taking into view what dropped from one of the members of the court at the time, I am not disposed to put that construction on it. A due harmony between the bench and bar not only conduces to expediting business, but is in a great measure necessary in the administration of justice. Under the circumstances of the case therefore I do not look on the evidence as waived.

It is settled in 7 T. R. 17. that a plea of justification in slander under the communication of another is not good, unless the author is mentioned at the time of speaking the words; and in 2 East 426. it is resolved, that whoever would shelter himself under report, must also use the very words of his author, in order to give the plaintiff an action against him. A general

KENNEDY

v.

leave to justify by our practice is tantamount to a special plea 1803. of justification in England; and therefore it is clear that Newport could not with propriety answer the question on the ground of justification. But it is contended here that the testi- GREGORY. mony was not offered as a justification, but in extenuation of the damages for the words spoken. If the words laid and proved had been substantively and independently charged against the plaintiff by the defendant, I am strongly inclined to think that the present question could not be asked, even to mitigate the damages, on either plea then before the court; unless there had been leave to give the special matter in evidence, and notice of the intention of the party had been previously given. Because otherwise it would be a surprise on the plaintiff, and he could not come prepared to repel the evidence.

Here however one of the plaintiff's witnesses swore in the alternative, that the defendant declared to him either that the plaintiff loved liquor, or it was said so. And under these circumstances, I think it was competent to the defendant to shew by Newport, that he had said so to him, to take off all presumption that the charge was a fabrication of his own, merely in mitigation of damages, as to the words thus sworn to by Brewster. I agree that new trials will be seldom granted in actions of slander. The peace of society requires that slander should be repressed. But in this case, the presiding judge having declared in his charge, that he should have been satisfied if the jury had given a verdict for the defendant, or if they could find for the plaintiff and should find reasonable damages, which evinced a measuring cast in his mind, and testimony admissible in my idea in its nature not having gone to the jury for their consideration, under the special circumstances of the case, I am of opinion that a new trial should be granted.

SMITH J. When Newport was offered to prove that he told defendant, plaintiff was given to drink, the court was divided upon the admissibility of the evidence; whereupon it was declared by the court that, agreeably to the practice on the circuit, the evidence was to be given, and the point whether admissible or not, reserved. The counsel who offered it, on being asked by the judge who was in favour of its admissibility, Do you need it? waived it.

But I will consider the question as if the court had ruled

1803. KENNEDY

V.

that it was not admissible, and as if there had been no waiver of it.

It is clear that in justification of the defendant it could not be GREGORY. admitted. "If I. S. publish that he hath heard generally without a "certain author that T. G. was a traitor or thief, there an action "sur le case lieth against I. S. for this, that he hath not given "to the party grieved any cause of action against any, but "against himself who published the words, although that in "truth he might hear them; for otherwise this might tend to a "great slander of the innocent. For if one who hath leam phan"tasiam, or who is a drunkard, or of no estimation, speak scan"dalous words, if it should be lawful for a man of credit to "report them generally, that he had heard scandalous words "without mentioning of his author, that would give greater co"lour and probability that the words were true in respect of the "credit of the reporter than if the author himself should be "mentioned; for the reputation and good name of every man "is dear and precious to him." 12 Co. 134. which case is recognised in 7 T. R. 19. by Lord Kenyon, in delivering the opinion of the court in Davis v. Lervis, which was an action of slander for speaking these words by defendant, of and concerning plaintiff in his business as a taylor, "I heard you were run away; a person has been here to tell me that you were run away.” Defendant pleaded in justification that before the speaking of the words he the defendant had heard and been told by one D. Morris that the plaintiff was run away, for which reason he spoke them; and on general demurrer judgment for the plaintiff. "Per Lord Kenyon. Whether this be considered on the authori"ties or on the reason of the case, the justification cannot be

supported." He then cites the Earl of Northampton's case as in point. "Then it is said that it is sufficient to repel such ac"tion, to disclose by the defendant's plea the person who told "him the slander; but that is clearly no justification after put"ting the plaintiff to the expense of bringing the action. The "plaintiff can only impute the slander to the man who utters "it, if the latter do not mention the person from whom he “heard it. The justice of the case also falls in with the deci"sions upon this subject. It is just that when a person repeats any slander against another, he should at the same time de"clare from whom he heard it, in order that the party injured may sue the author of the slander."

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