Severance v. Hilton , 32 N.H. 289 ( 1855 )

Fowler, J.^*

It would seem to be a sufficient answer to the last position of the defendant’s counsel, that the question which is assumed to have been definitively settled by the common pleas, is now before uS for revision by the express order of that court.

To the other position of the defendant’s counsel, that the evidence rejected, if admissible, was wholly immaterial, inasmuch as the referees found that no injury had been done ; it is only necessary to say, that if the evidence were competent, the plaintiff had the right to have the benefit of its influence upon the minds of the referees before the rendition of their judgment. As the referees undertook to receive or reject evidence upon strictly legal principles, if they rejected what should have been received, the plaintiff suffered a legal injury to his rights by their decision, which is not to be justified by an attempt to show it to have been immaterial or unimportant. Every party is entitled to the benefit of all the legal evidence he may produce before the tribunal that is to determine his rights.

Upon an examination of the rejected depositions, which form a part of the case transferred to this court, it appears that John J. Atkins testified, in substance, that he called upon the defendant in the spring of 1849, for the purpose of purchasing a cow of him, but, not being able to trade, he proposed to go and see the plaintiff and endeavor to purchase one of him, whereupon the defendant told him he would not buy a cow of a man who would poison his wife to death, referring to the plaintiff, as the witness understood him. John Gilman deposed that he and his wife, who was a sister of the defendant, were visiting at the defendant’s about the middle of September, 1849; that about sunset the defendant, after showing witness his new barn, the fastenings of the doors, &c., informed him that on the previous Sunday, during his absence at meeting, some one came, broke into his house and beat out the eye of his dog, which he had left at home ; that he asked the defendant who he supposed had done it, and he replied that he held a note against the plaintiff to the amount of $100, and he did not know of any one else who would break into his house except the plaintiff after that note ; but as good luck would have it, he had the note in his pocket; that during the same evening the defendant remarked to him that folks said the plaintiff had been the means of his wife’s death, and for his part he had no doubt of it. Witness told him it could not be so, whereupon the defendant said to him that he did not know the plaintiff so well as he did, and added, that some of the plaintiffs children believed it, and would not go there to see him. Martha T. Gilman corroborated the testimony of her husband, the last witness, and added, that several times during her visit the defendant spoke of the plaintiffs first wife, and said he thought she might then have been living but for the plaintiff. Mbridge Corliss applied to the defendant to board himself and brother in the winter of 1849-50 ; he declined to board them on account of his wife’s health, which he represented as feeble, and thereupon the witness proposed applying to the plaintiff for board, when the defendant said to him, “ I would not go up and board where a man poisoned his wife to death.” The exact testimony proposed by the witness upon the stand is not stated, but it seems to have been substantially a repetition of the slanders charged in the declaration, at other times and to other persons. • c,

Such is, substantially, the evidence which the referees, undertaking to decide upon strictly legal principles, rejected, and the only important question before us, is whether they erred in so doing.

In Symonds v. Carter, decided at Newport during the present circuit, after a careful examination of authorities, we held that, in actions of slander, evidence of the repetition of the same words, or of other words and acts of the defendant, tending to show his malice in uttering the words laid in the declaration, was admissible, whether such words or acts were themselves actionable or not; and further, that in order to render such evidence admissible, it was not necessary that the additional words should have been spoken at the same time, or to the same persons, as those laid in the declaration, or even before the commencement of the action, provided they were spoken so near the time of the words declared upon, or were otherwise so connected with them as to have a legitimate bearing upon the disposition of the defendant’s mind at the time of uttering the slander complained of.

Applying the principles thus settled to the case before us, there can be no doubt that the depositions and testimony which the referees rejected were entirely competent and admissible, and that the referees erred in not receiving and considering them. If any thing could show a deep and abiding malignity and disposition to injure on the part of the defendant, some of the circumstances disclosed in the rejected testimony, under which the slanders complained of were substantially repeated, in the presence and hearing of the plaintiff’s sister, coupled with other charges of house-breaking, the wounding of the dog, and an attempt at larceny of the note, together with the wanton feelings of hostility evinced in the efforts to deter others from trading or boarding with the plaintiff, would seem to have that tendency.

We have not considered, or deemed it necessary to consider, whether the rejected evidence might have been competent in corroboration of the proof of the speaking of the words laid, as tending to show the existence in the defendant of that disposition of mind towards the plaintiff which would render it more probable that he might have spoken them, as alleged, than it would otherwise have been. We are of opinion it was admissible on the question of malice; and whether it might have had any other legitimate bearing or not, the plaintiff was entitled to the full benefit of it. As he has been deprived of this by the error of the referees in a matter of law, where they undertook to decide on strictly legal principles, the order of the court below, for judgment in favor of the defendant upon the report, must be rescinded, and

The report must he set aside.

* Perley, C. J., did not sit.