#### *SEELY v.*BLAIR.

Slander — -justification—certaint3r—character and reputation — officers and candidates — exemplary damages.

Under a justification for forgery, the defendant is held to strict proof of the precise *forgery*he has set forth in his notice. If he fail or has left the matter in doubt the verdict should be for the plaintiff with exemplary damages.

Character is conduct: it may exist before it has reputation abroad and independent of it; it *must be*£rwe, *while reputation may be false;*those acquainted with the character of a witness may give their opinion of it.

In judging of a criminal charge all the circumstances should be considered by the jury.

We may freely canvass the character and claims of officers and candidates for office, but have no right to calumniate either. If the law sanctioned such a course, U would drive

' good men from the administration of public affairs, and throw our government into the hands of the worthless a’nd profligate.

Slander. Words (in substance) ‘Seely has been guilty of forgery, he has added the words *with use*to a note; I can prove it and am *684bold to say so. Dr. Johnson blamed Seely; there weré two *oftiltéS*persons by when it was discovered; he burst out cryin'g atfd said he was Sorry, and settled it on the spot; I exp'ett he gave' a hundred dollars to Settle it/

Plea, not guilty, with notice, that Seely having a note given by J. Williams, for about Seven dollars, dated in 1824, falsely altered it by forging the words, *‘•with use and interest'*with intent to defraud, and to prevent its being given in evidence against him, obtained it and tore it in pieces; wherefore the defendant, being an elector, and the plaintiff a candidate, for offfce, spoke the words.

It appeared in evidence for the plaintiff that he was a candidate for sheriff, and that the defendant turned out to electioneer against him, and several times made the charge complained of.

For the defence it was proven,. that Seely had a note on Williams for a small sum,¡¿which, with others, he turned out about a month before due, on a contract to pay for a horse in notes then due. When the noté was presented for payment it contained a *w*and the letters. *inst.*(w hist.) at the end in different ink, and had the appearance of having been altered. It was objected to, and Seely was called on about the matter, when considerable altercation took place, and Seely finally paid nine dollars to Williams, took up the note, and Williams paid the holder in sheep. Much contradictory evidence was given as to the conversation by Seely, &c. during the negotiation about the note. Seely is a man of property and respectability, and if he had-forged the words he would have gained two and a half or three cents. Two witnesses in testifying as to the alteration of the note, described the words inserted to be either *with interest,*or *with*use, but were not certain which. Testimony was given to impeach the credit of these witnesses.

The cause was argued to the jury by

P. *Hitchcock*and *S. J. Andrews,*for the plaintiff,

and

*J. H Paine*and *D. Tod,*for the defendant.

The speaking of the words was *admitted.*

Wright, J.

to the jury. It being admitted before you, that the words were spoken, the plaintiff is entitled to your verdict, unless the defendant shall have proven to your satisfaction the justification set forth in his notice. The question raised by that justification is this, did the plaintiff before the speaking of the words, alter a note given by Williams to him for the payment of money, by inserting the words *1 with use and interest,'*with'intent to defraud Williams? The defendant is bound to prove the justification he has spread upon the record. The notice in this case only apprizes the plaintiff *685that proof will be offered to establish the fact, that he altered the note by inserting the specific words ‘ *with interest and useS*The only testimony that these words were included in the alteration, that we recollect, was given by Williams, Hawly and Burridge. They concur in saying the words inserted were either *with interest*or *with*use, neither of them pretend that both the words *interest*and *use*were inserted. If you find the fact to be, that only one of these words was inserted to the exclusion of the other, or that in fact the alteration was that testified to by Turney and Hinds, *w inst,*the justification relied upon is not the true one, and fails. The party at his peril must disclose the true state of his case. He is held to a more strict compliance with this rule whenever he imputes *crime*to others as in this case. The facts of the justification, mainly depend on the credit due to Graham and Williams. As to Graham, many witnesses have testified — those who know the *character*of the man, his moral habits, are by • law, competent to give their opinion whether it is equal for truth to that of men in general, while those who know nothing but the witness’s *reputation,*or what is generally said of him, are not competent. The character of persons are known to those who are acquainted with them, before it is known abroad — they have character before they have reputation. A man’s actions are his character — they speak louder than words. A man’s *character must be true,*his *reputation may be most*false. If I have raised a child, and his character, which has been subject to my scrutiny is bad, and I know him to be subject to no moral restraint, I can testify to his character; yet he may have no reputation abroad. I make these remarks to show you the difference between knowledge of character testified to by a witness, and reputation or the mere opinion of others, who are generally prejudiced and if present to testify would say so. As to Williams, his credit is affected by the contradictory stories he has told upon the subject of his evidenee. In reference to both, you should take into view *all*the circumstances. Is the story told by them probable in itself? Would a man in the plaintiff’s situation be likely to do the act they relate for the trifling gain of two or three cents? If he did so, would he be likely to take the subsequent steps which their evidence imputes to him? Are the witnesses deserving of credit on account of their character or moral habits? Are they corroborated by circumstances, or by other witnesses? Are they contradicted? Have they told different stories about the matter? You must judge of their credit. If credit be yielded to them, and the conviction follows in your minds that the defendant is guilty of the forgery *686set up in the notice, you should find for the defendant. If you' disbelieve these witnesses, or doubt whether the defence be made out, you should find for the plaintiff. Should the verdict be for the plaintiff, inasmúch as the defendant has attempted to establish the plaintiff’s guilt and failed; he is entitled to exemplary damages.

As to the point urged, that the plaintiff was a candidate for office, and the defendant an elector, I need only say, the relation of the parties to each other or to the public, confers upon the defendant no right to utter falsehood and calumny. An elector may freely canvass the character and pretensions of officers and candidates, but he has no right to calumniate one who is a candidate for office with impunity. If the law sanctioned such a course, it would drive good men from the administration of public affairs and throw our govérnment into the hands of the worthless and profligate. Verdict for the defendant.

A new trial was granted and leave given to amend the notice.