1820. Leigh for the appellant, submitted the question whe- JANUARY, ther circumstances of suspicion, not amounting to justification, be not admissible in mitigation of damages; re- M'Alexanferring to Mr. Wickham's argument in the case of Cheatwood v. Mayo, 5 Munf. 16, and Knobell v. Fuller there cited. Proof that the words were and afterwards retracted, is uttered in heat of passion, of mitigation. In Snellger v. Shelly, 2 Esp. N. P. 520, repetition of the slander, proving the defendant's ill-will towards the plaintiff, may be given in evidence by way of aggravation. Ex Consequenti, therefore, the defendant may give retraction in evidence, by way of mitigation. Nicholas contra. The defendant pleaded not guilty; yet offered in evidence a long string of circumstances tending to fix the imputation on the plaintiff. Such a proceeding is altogether inadmissible:-it is not only against policy and justice, but would injure the plaintiff by entrapping him; for, if the defendant had any facts to justify him, he ought to plead them, in order to apprise the plaintiff of the nature of the evidence intended to be offered. Whether the circumstances, tending to prove the guilt of the plaintiff, are strong, or weak, makes no difference. It would be a strange rule that weak evidence should be admitted, and strong excluded. der V. Harris. In Cheatwood v. Mayo, my friend Mr. Leigh argued this case very ably, and shewed that the authority of Knobell v. Fuller was overruled. The point has been solemnly decided in England. (a) It was decided in (a) Bull, Cheatwood v. Mayo, for this Court affirmed the Judg-298; Philips ment, which could not have been done without deciding on Evidence, 139; Willes, that the evidence offered by the defendant was inadmissi- 24, Smith v. ble. That case and this are perfectly analogous. N. P. 9, & Richardson; 12 Viner 159, The other evidence offered is equally liable to objec- pl. 16. Dention. It was proposed to prove declarations by the de- nis v. Pawling; 2 Str. fendant after the suit had been brought. Such declara- 1200. Untions are not admissible in his own favour. The only safe rule is, that declarations made at the time of speaking the slanderous words, may be proved; for they are derwood v. Parks. 1820. der V. Harris. JANUARY, part of the fact, and essential to the understanding of it; but it would be a novel and dangerous principle to alM'Alexan- low declarations, at a different time, especially, after the institution of the suit, to be given in evidence. If this could be done, a man, after slandering another, might, in every case, protect himself from punishment, by his own pretended declarations of the absence of malignant motive. He calls the plaintiff a rogue, and then wants to say he did not mean to impute to him any blame. If he said so, believing him innocent, he was more criminal than if he had said it thinking him guilty, though in fact there was no foundation for the charge. Perhaps, where the plaintiff actually goes into circumstances of aggravation, the defendant may prove declartions at other times in mitigation:-but it does not follow that the latter may be done in every case, because the plaintiff might prove circumstances of aggravation, though he does not attempt it. The defendant moreover wished to prove the plaintiff a quarrelsome man, &c. This also was improper:-1st, because it was calculated to ensnare the plaintiff, by introducing an inquiry not involved in the issue joined:— 2dly, beccause such a course leads to mischievous investigations, and embraces the whole conduct of the parties to each other for years. Nor is the plaintiff's being quarrelsome and insulting, any justification of the defendant for charging him with a specific crime of which he was not guilty. And, as to the plaintiff's vilifying him and his family, the law was open to him for redress. He had no right to set off one slander, by another, imputing possibly a more atrocious crime. It would be productive of the worst consequences to allow such a latitude of evidence. Every thing that happened at the time, is admissible: it is part of the res gesta: but the defendant can not go into the transactions of the whole lives of (b) Philips both parties. (b) on Evidence, 201. Leigh in reply. In trespass for taking away a slave, may not the defendant acknowledge that he took him under a mistaken impression of his being his property, and return him? Would a Jury give the same vindic 182J tive damages, as if he still detained the slave? Why then JANUARY, should not the rule be similar in cases of slander? If an acknowledgment in writing be admissible in mitigation, M'Alexanwhy not proof of a verbal acknowledgment? Certainly, slander retracted, ought not to be punished as severely as slander persisted in. BY THE COURT, the Judgment was affirmed. der V. Harris. Robertson against Depriest. Decided, January, 1820. sumpsit the witnesses, items in the plaintiff's ought not to THIS was an action of assumpsit, in the County Court 1. In Asof Nottoway, for sundries sold and delivered. At the testimony of trial of the cause, on the plea of non assumpsit, the plain- offered to tiff John A. Robertson introduced several witnesses to prove the prove the various items in his account. The defendant's counsel objected to the introduction of this evidence; on account, the ground, that, in an action of debt some time before be excluded determined between the same parties, one of those wit- from the nesses had been examined touching the same items claim- the ground ed by the plaintiff, to repel or set off the credits then that, in an claimed by the defendant, although this suit was at that debt betime pending. And this objection was sustained by the tween the same parties, Court, and the testimony accordingly excluded; to which (the record of opinion the plaintiff filed a Bill of exceptions. Verdict which action and judgment for the defendant. Jury upon action of is not exhibi-ted,) deter The Superior Court of law granted a supersedeas to this mined dur ing the penjudgment, but afterwards affirmed it; whereupon, the dency of the plaintiff appealed. The following was the opinion of this Court. action of assumpsit, one of those. witnesses the same The Court is of opinion that the judgment of the was examinCounty Court is erroneous in this, that it was irregular to ed touching reject the witnesses offered on the part of the appellant, items claimon the ground that the items which they were brought to ed by the support, had been decided on in a former suit between the same parties, the record in which suit was no how exhibited to the Court. plaintiff, to repel or set off the credits then claimed by the defend ant. Both judgments are therefore, reversed with costs, and the cause is remanded for a new trial to be had between the parties. Decided, January, 1820. 1.By a deed dated in slaves were during their or that of the after the de. cease of the said their increase: Self's administrator against Tune. IN an action of detinue for several slaves, in the Superior Court of Richmond County, (wherein Self's admin176, certain istrator, was plaintiff and Lewis Tune defendant,) a spegiven to a cial verdict was found, upon which the Court was of daughter of the donor, opinion that the law was for the defendant, and judg and her hus- ment was entered accordingly. To this Judgment band for and the plaintiff obtained a writ of Supersedeas; stating in natural lives, his petition, that the main, if not the only question longest liver of law in the case, arose on a deed from Leasure Hall of them;and, to William and Mary Bailey, granting them certain slaves; (from whom the slaves in the declaration menthem both, tioned were descended;) and that question was, wheslaves and ther, by virtue of that deed, they took an absolute estate to be equal in the slaves thereby granted; or whether the executory ly divided a donation, that, for want of heirs of the body of the said mong the heirs of her Mary Bailey, the said slaves, with their future increase, body; and, in should all return and be equally divided between the such heirs, grantor's son and daughter Jeremiah Hall and Anne Lewis, to return to the use and behoof of the said Jeremiah and Anne, vided equal- their heirs and assigns forever, was a valid executory ly between the limitation over, of the said slaves and their increase, or not?--The petitioner was advised, that, if William and Mary Bailey took by the said deed an absolute estate in and assigns the slaves, the law on the special verdict was for him, forever. By virtue of this and the judgment erroneous; if, on the contrary, the executory limitation was valid, the law was for the defendonee took dant. He contended, that William and Mary Bailey did take an absolute estate in the said slaves and their in default of and be di donor's son and other daughter, & their heirs deed, the first female an estate for life only; the words "heirs of her body," coupled with the words, "equally to be divided between them," being to be construed not as words of limitation, but of purchase, describing the persons intended to take. 1820. ministrator Tune. crease; that they took by the deed an estate in tail spe- JANUARY, cial, which was tantamount to an absolute estate, because the executory remainder, limited on the estate tail, and Self's adintended to supplant it, was limited on too remote a contingency; namely, the failure of issue of the body of the said Mary Bailey; that this case presents not a single circumstance to tie up the contingency, and restrain it within the reasonable bounds prescribed by the rules of law for restraint and prevention of perpetuities, unless it be the equal division of the said slaves, between the executory grantees, directed by the deed, from which possibly the Court might have inferred, that the executory donation was intended as a personal benefit to them, and, therefore, that an unlimited failure of issue of the body of the first taker was not intended; but that circumstance was not sufficient to restrain the generality of the contingency, even if it did evince that a personal benefit was intended for the executory grantees; but no such personal benefit appeared to have been intended; for not the slaves only, but their increase also were limited over, and the limitation was not to the executive grantees only, but to them, their heirs and assigns forever. Leigh for the plaintiff in error. Stanard for the defendant. Judge ROANE pronounced the Court's opinion. The appellant in this case claims under Mary Bailey; and the validity of her title depends upon the construction of a Deed of August 4th, 1769, made by Leasure Hall. That Deed gives five slaves, from whom the slaves in question are descended, to his daughter Mary Bailey and her husband William Bailey, for and during their natural lives, or that of the longest liver of them; and, after the decease of them both, for the said negroes and their increase to be equally divided among Mary Bailey's heirs of her body; and, in default of such heirs, for the said negroes and their increase to return and be divided equally between his son Jeremiah and daughter Anne, and their heirs and assigns forever. If these words, "heirs of her body," had stood alone, in the limitation |