#### BENJAMIN FOWLER, *pl'ff in*error, *vs.*JULIUS COLTON, *def't in error,*

I V *Error to Hacine counlii. )*

A notice of special matter to be giren in evidence, filed with the plea of 'general issstie, must contain all the substantial matter of a special plea. In actions upon contracts, it is sufficient if it contains such a statement of special matter as will prevent the plaintiff from being taken by surprise at the trial.

In actions of slander, the notice of special matter in justification, must he as precise and certain as a special plea of justification.

As there is no form prescribed for a notice, its sufficiency must depend, in some degree, upon the peculiar circumstances of each case.

As a notice is not technically a part of the record, it is not proper to dispose of it by demurrer; it should contain all the facts necessary to sustain it, if in a plea, against a general demurrer; the correct practice is to exclude the evidence offered, if the notice is insufficient.

The refusal of the court to allow it notice to ho amended on the trial, is not error; the statute of amendments is not obligatory on the courts, but only gives them the discretion to allow or disallow amendments to he made, and the allowance or disallowance of amendments, resting in the discretion of the court, is not the subject oí error.

An opinion of the court of a fact in the case, of the weight of testimony, or the character of a witness, is not binding upon the jury^and is not error.

Where each of the jurors sets down the amount of damages which he is willing to allow the plaintiff, anti the jury divide the aggregate ot the. sums by Ti, and agree upon the quotient ns the amount of their verdict, it is not such misconduct as would entitle the defendant to a new trial, unless it is shown that the jury acted corruptly, or that they previously hound themselves to adhere to the result.

Questions of law, arising upon motions for now trials, are legitimate subjects of inquiry in the Supremo Court.

Where the rules of the District Court require all depositions intended to be rend on the consideration of all motions to he taken on notice to the adverse party, the court may reject *ex parte*affidavits offered in support of a motion for y new trial, and the court is not bound to hear witnesses on the stand in support of the motion.

This was an action of slander commenced by Colton against Fowler in the Racine District Court. The declaration contained three counts: The first count a.liedged that the defendant had charged the plaintiff with theft in stealing a bee hive and honey belonging to one Lucas, and a hag of flour belonging to the defendant: The second count was for charging (lie plaintiff with theft in stealing a hive of bees and honey of one Daniel Lucas: And the third count was for words charging the plaintiff with theft in stealing grain and flour from See’s mill, and stealing Lucas’ bee hiye. The slanderous words were variously laid in the declaration, to which the defendant pleaded the general issue, and gave *176notice of special matter in justification. The notice will be found in the opinion of the court.

Upon the trial, one Isaac Goodpasture was sworn and examined as a witness for the plaintiff to prove the speaking of the slanderous words; he was afterwards called by the defendant, and testified that the plaintiff’s character was bad.

After the plaintiff had closed his testimony, the defendant offered to justify by proving the truth of the words spoken, which was objected to by the plaintiff on the ground of the insufficiency of the notice. The court sustained the objection, and decided that the notice was not sufficient. The defendant then asked leave to amend the notice, which was refused by the court; to both of which decisions the defendant excepted. . .

Among the instructions given by the court, to jury, was the following: “In considering character, you will also consider the character of the witnesses, for and against, and give their testimony such weight as they may deserve. Such a man as Good-pasture, when called upon this subject, will not be entitled to much weight.” To which instruction the defendant excepted.

The jury returned a verdict in favor of the plaintiff for *‡375*in damages; upon which the defendant moved for a new trial, on the grounds, among other things: that the court erred in instructing the jury that the evidence of Goodpasture was not entitled to much weight; that the court erred in rejecting the evidence offered by the defendant in justification; and that the court erred in refusing to allow the defendant to amend his notice of special matter: and also, *“*that the jury erred in first marking damages for the plaintiff at sums varying from one dollar to one thousand dollars, and then split the difference, and returned a verdict from computation,' rather than from law, evidence, or their own judgments.”

To sustain the last ground, the defendant offered to prove by the affidavit of H. N, Wells, that the jury, in ascertaining the amount of damages in the case, marked the sums which they would allow, and then added those sums together, and divided the whole by twelve, and took the quotient as their verdict, and that these sums, so marked, varied from fifty dollars to one thousand dollars; and if the affidavit should not bo admissable, the defendant offered to prove the facts by a witness on the stand. The Court refused to receive the affidavit because it had been taken without notice to the adverse party, and also refused to hear witnesses on the stand in support of the motion.

*177On argument, the Court overruled the motion for a new trial, and rendered judgment on the verdict. To reverse this judgment, Fowler sued out a writ of error, and has brought the cause into this court.

Wells, for pi’ff in error,

declined opening the argument;

Marshall M. Strong, for clef't in error:

The first question in order arises upon the decision of the coutt as to the insufficiency of the notice. A notice generally, should contain all the matter necessary to be stated in a plea, and set it out with the same certainty. There are two leading cases in New Yoik upon this pciint. The first is in 13 John.Rep. 475; these-cond in 20 John. Rep. 740. In the first case it is laid down as the rule to test the sufficiency Of a notice; to consider, whether if it were embodied in the form of a special pica, it would be good on general demurrer; in the second case, the rule is stated to be, that if the notice is so certain that the plaintiff is not taken by surprise, it is sufficient. Chancellor Kent, in the latter case, refers to 8 John. Rep. 457; but on examination of the case referred to, it will be seen that it does sustain the latter rule laid down by the court. The rule established in the case, in 13 John, is affirm* ed in 8 Wendell, 572; and again in 24 Wendell, 357. But apply the test of either of the cases to this notice, and. it cannot be sustained.

The first objection to the notice is, that it does not confess the facts alledged in the declaration, it is a rule in pleading, that whenever matter in justification or avoidance is pleaded, the facts to be justified or avoided must be confessed. 3 Cotven, 370, *Root vs. King,*7 Cotven, 633. This notice docs not confess the speaking of the slanderous words.

The second objection is, that it professes to answer the whole declaration, and answers only a part of it. Divers thefts are al-ledged in the declaration to have been charged by the defendant against the plaintiff, and the notice only goes to justify a part of them. The justification is therefore insufficient. 3 Chilty, 1003. 2 Wendell, 541. Archbold, 39. 2 Hawk. 324.

The third objection is, that the notice does not state the price or value of the property stolen. This ought to be stated to each article. Archbold, 43.

The fourth objection is, that the notice does not answer the whole declaration. The rule is, that the justification in an action of *178slander, must be as broad as the charges in the declaration; £Jiar-kie on Slander, 839, 342. Tlie objections to the notice are so ob - vious, and so fully sustained by authority, that it would seem that; the correctness of the decision of the District Court cannot be questioned.

The application for leave to amend the notice, was addressed to the discretion of the court. It was made pending the trial, and after the plaintiff had closed his testimony. Sound discretion could not allow the amendment to be made at that time. It would have been the same thing as to allow a plea of justification *to*be filed at that stage of the trial, and so far as the plaintiff is concerned, the court might as well allow the defendant to justify without plea or notice. Besides, a refusal to allow an amendment is not error. The statute of amendments leaves the whole matter to the discretion of the court, and a case cannot be found where a refusal was decided to be error.

The exception to the charge of the court is not well taken. Whatever the judge may state as his opinion of facts, it is not error, if he leaves the facts to the jury to determine. Graham on New Trials, 311,312,317,319.

The rules of the District Court require all affidavits or depositions in support of a motion to be taken on notice to the adverse party. The affidavit for a new trial was therefore properly rejected. The practice of hearing witnesses on the stand in such a case would be without precedent or authority. But if the defendant had proven all that he offered to prove, it would not have established any legal ground for a new trial. It is not improper for the jury to figure, cast up and divide as much as *they*choose to do. To make it improper, *they must*have *agreed*beforehand to be bound by the result of the calculation. Graham on New Trials, 106, 107, 108, 109.

There was no legal ground for granting a new trial, but if this court should think that if the application wore here made, the new trial would be granted, still the refusal of the District Court to grant it, is not error. 5 Wendell, 277. 5 Cranch, 11, 4 Wheat-on, 220.

Wells, in reply:

The notice in this case is as full and perfect as any form that can be found in the books. The authorities that have been read, showing the certainty required in special pleas and indictments is *179not applicable here. The object of the legislature in allowing a notice of special matter to be filed with the plea of general issue,was to simplify pleading and defence. If it must be as full and certain as a special plea, the law is of no utility. It is not necessary that it should admit the speaking of the words, and none of the authorities that have been cited require that it should. This notice states that the defendant will prove that the words charged in the declaration are true. This is sufficient; it fully apprizes the plaintiff of the defence intended to be set up on the trial. It is as good as a notice of payment in a suit on a promissory note. The decision in 8- Wendell does not support the position assumed; it only requires that the notice should contain the *’matter*that would be necessary in a plea, but does not require the form. The true rule, and one sustained by authority is, that where the notice sufficiently apprizes the plaintiff of the defence intended to be relied on, it is all that is necessary. In 8 John. Rep. 475, is the form of a notice which was sustained by the court, which is not so. full and perfect as the one in this case, and the decision there shows that the certainty that is necessary in an indictment ora special plea is not required. See also, 11 John. Rep. 38. 20 John. Rop. 775.

If the rule be, that the notice must be as full and certain as a special plea, and its sufficiency is to be tested by comparing it with a special pica, then the plaintiff ought to have demurred to it. This would have brought the question before the court in time, and if it was found to be defective, it might have been amended and the party would not have been shut out from his defence.

After the decision against the notice, the court ought to have allowed it to be amended. The statute of amendments is peremptory, and not discretionary. The word *may*means *shall,*and the only discretion that the court has in the matter is, to determine whether the amendment proposed is for the furtherance of justice. If the refusal of the court below was an abuse of sound discretionary power, then the judgment ought to be reversed.

We contend, that the District Court ericd in .instructing the jury that the testimony of Goodpasture was entitled to very little weight. Goodpasture was the plaintiff’s witness, and by introducing him he said to the jury that he was a man of character and entitled to belief. He had no right to impeach him, and no attempt was made to do it, except by the court. This witness *180proved for the plaintiff what was expected of him; he afterwards* when again called, proved the plaintiff’s character to be bad. Again: the court had no right to charge the jury to judge of the testimony by the character of the witnesses, when none of there had been impeached. Character is always held to be good until it is proven to be bad. 5 Wendell, 195. This is a presumption of law that is binding on both courts and juries.

The court below rejected the affidavit in support of the motion for a new trial because it had been taken without notice. There is no authority that can be found, that requires notice in suclt case. The rules of practice do not require it, and it is error in the court to require it. Graham on New Trials,5,6,7; *id,*104,105, 108.

Opinion of the Court, by

Judge Mimer;

This was an action of slander in the District Court of Racine county, in which Colton was plaintiff and Fowler defendant. The defendant pleaded the general issue, and filed notice of special matter to be given in evidence on the trial in justification, as follows: “The defendant will give in evidence, under the general issue, on the trial of this cause, that the plaintiff, before the speaking and publishing of the said several words by the said defendant, of and concerning the said plaintiff, as in the said several counts in the said declaration mentioned, to wit: on or before the twenty-fifth day of November, eighteen hundred and forty, to wit: at Racine county aforesaid, did feloniously steal, hike, and carry away, certain goods and chattels, to wit: one hive of bees and the honey, of one Daniel Lucas, and also one bag of flour, of him, the said defendant, as spoken by the said defendant, and charged by the said plaintiff in his said declaration, to wit: of the value of fifty dollars, all of which was contrary to the form of the statute in such case made and provided; wherefore the said defendant, if ho spoke the said slanderous words, in the said declaration menliowed, was justified and had a right, afterwards, to wit: on thoSStli day of November, 1840, to wit: at Racine county, aforesaid, to speak and publish the said words of and concerning the said plainlifij for the cause aforesaid.”

After the plaintiff had closed his evidence on the trial, the defendant offered evidence in justification, which was objected to, on the ground of the insufficiency and immateriality of the notice, which objection was sustained by the court, and the testimony rejected. This is the first error assigned.

*181The notice is allowed to be filed with the general issue in case of tho defendant. He may or ho may not rely upon it, and the plaintiff is bound, notwithstanding4he notice, to prove the facts set forth in the declaration; *Vaughan vs. Havens,*8 John, 109. Generally, a notice must contain, in substance, all the substantial matter of a special plea, but is not required to be in the form. In actions upon contract, a notice is sufficient if it contain such a statement of special matter to be given in evidence at the trial as may prevent the plaintiff from being taken by surprise. The statute has prescribed no form, and each case must, in some degree, depend upon its peculiar circumstances, and upon tho application of sound discretion in the court at the trial; *Chamberlin vs.*Gorham, 20 John. 749. But the general rule undoubtedly is, that the notice should contain all the facts necessary to sustain a plea against a general demurrer, or at least a motion for a judgment *non ob-stante veredicto-, Bishop and Medbury vs. Earl,*17 Wendell, 316. Although the notice is not required to be in the strict technical form of a *pica, it*must contain all the facts necessary to be stated in a special plea; *Sheppard vs. Merrill,*14 John. 475. And it must state truly, the facts intended to be given in evidence; *Kane vs. Sawyer,*14 John. 89. It must also be so particular as to enable the plaintiff to come prepared to meet the facts stated therein; *Chamberlin vs. Gorham,*20 John. 744. In slander, a notice of justification must be as precise and certain as a special plea of justification, *Mitchell vs. Borden,*8 Wendell, 570. In a special plea, the felony must be charged with certainty, and tho party must aver the speaking of the words, and expressly and distinctly confess the speaking. The pica or notice of the truth in justification admits the malice, and puts the naked truth in issue; *Root vs. King,*7 Cowen, 613; *Matson vs. Beech,*5 Cowen, 499, And notice of special matter in slander should bo drawn and proven "with great particularity; *Woodbeck vs.*Keller, 6 Cowen, 118. For charging the plaintiff with having sworn false, if the. defendant intends to justify under a notice subjoined to his plea, lie must give notice that he will prove, not only that the plaintiff swore false, but that he swore wilfully and corruptly false; *Mitchell vs. Borden,*8 Wendell, 570. *MKinley vs. Rob,*20 John. 351. From this array of authority, it must be apparent that the notice filed in this case, was not sufficient. It is certain that it could not be sustained against a general demurrer, which is made the test by the So-*182prorne Court *of New*York. *It is coa fused,*uncertain, and; argumentative, Tho plaintiff could not be expected to bo prepared to meet evidence in justification on this notice; and if the defendant’s offer bad not been overruled, tho plaintiff must have been taken by surprise.

As a notice of special matter is not, technically, a part of the record, it is not proper to dispose of it by demurrer, although it should contain all the facts necessary to sustain it, if a plea, against a general demurrer. It is the practice to exclude evidence for insufficiency of the notice. It is the business of counsel to draw it correctly, at the risk of a rejection of the evidence.

After the testimony offered by defendant had been rejected, the defendant moved for leave to amend his notice, which was not granted by the court, and this is the subject of the second error assigned. The *notice*then on file had been allowed to be amended, according to the rules of the court, before the trial. Even if the refusal of this second amendment were the subject of error, we could not say that the court committed any error in this particular, for every indulgence was extended to the defendant that should reasonably be desired. The act concerning amendments provides, that “ the court in which any action shall be ponding, shall have power to amend any process, pleading, or proceeding.”This is not obligatory upon the court, but merely discretionary for the furtherance of justice. Now it is well settled, that the allowance or disallowance of amendments, when it is a matter of discretion, is not the subject of error. *Mandeville vs. Wilson,*5 Cranch, 15. *Marine Ins. Co. vs. Hodgson,*6 Cranch, 206. *Chirac vs. Reinicker,*11 Wheaton, 280. *Sheely vs. Mandeville,*6 Cranch, 253. *Walden vs. Craig,*9 Wheaton, 576. *Ordroneaux vs. Prady,*6 Sergt. &. Rawle, 510. *Clymer vs. Thomas, 7*Sergt. & Rawle, 180.

The Court, iu the charge to the jury, remarked, *“*that in considering tho character of tho plaintiff, you will also consider the character of the witnesses, for and against, and *give*their testimony such weight as it may deserve. Such a witness as Isaac Goodpasture, when called upon this subject, will not be entitled to much weight.” In this, error is alledged, but there is none apparent. This was an opinion of the court, not in the least binding on tho jury. An opinion of a fact, not given as binding on the jury, is not error; Porter vs. *M'Ilroy,*4 Sergt. & Rawle, *183436. And it must clearly appear that the jury were excluded from finding for themselves; *Riddle vs. Murphy, 7*Sergt. & Rawle, 230. A court may give an opinion to a jury of the weight of evidence; *Dunlap vs. Patterson,*5 Cowen, 243. *Ex parte Baily,*2 Cowen, 479. And an opinion of the judge concerning facts, is not the subject of error; *Burd vs. Donsdale,*2 Binney, 80; *Long vs. Ramsay,*1 S. &. R. 72, The court has a right, and it is its duty, to explain to the jury that they are the judges of the facts in a case, and it is their province to give to the testimony of the witnesses its proper and legitimate weight and importance. The court in this case, did not go further than the Supreme Court of Pennsylvania in the case of *Burr vs. Sim,*4 Wharton, 156, where it was decided that it was not error in a judge to tell a jury that a witness was a “ very willing witness,” and that “ very little confidence was to be placed in her testimony;” nor to remark upon the strength or absence of evidence, or to suggest presumptions arising out of the relationship or conduct of one of the parties.

The defendant moved for a new trial on the alledged ground of misconduct of the jury in agreeing upon their verdict; and, at the argument of this motion, he offered to prove *“*that the jury, in ascertaining the amount of damages, marked the sums which they would allow, and then added the sums so marked together, and divided the whole by twelve and took the quotient as their verdict, which they returned into court as their verdict; that the sums so marked varied from fifty dollars to one thousand dollars; and the defendant offers the affidavit of H. N. Wells to prove the fact, or if the affidavit is not admissible, a witness is offered to prove them on the stand.” It appears that this offer was presented at the argument of the motion for a new trial, when the Court made this entry: *“*The motion for a new trial being taken up for consideration, this offer is overruled.” The affidavit referred to did not appear to have been taken on notice. It is the practice in the third district to adhere to the rule requiring all depositions offered to be read on the argument and consideration of .all motions, to be taken on notice to the opposite party; and such being the rule, we will not say it was wrong to reject the offer. The court is not bound to hear a witness on the stand at the argument of a motion, particularly as it is not the practice. But even if the testimony had been perfect, and the witness competent to prove the facts contained in the offer, yet the court would have been right in over*184ruling it. If the jury bad made up their verdict in the manner stated, there was no error. There is no allegation of corruptions in *(ho jury.*There is no averment *that the jury*previously bound themselves to adhere to the result; hut it is stated, merely,, that they did put down the amount each would allow, and did ascertain the quotient, which they agreed upon as their verdict. After the members of the jury argue the question, and agree to find for the plaintiff’, in torts and other cases where there is no ascertained demand, it. can seldom happen that they can or will agree at once upon a precise sum to he given in damages. There will, necessarily, arise a variety of opinions, and mutual concessions must be expected. A middle sum may in many cases be a good rule; and though it is possible this mode may be sometimes abused by a designing juryman fixing upon an extravagantly high or a very low sum, yet, unless such abuse appears, the fraudulent design will not be presumed. It is immaterial whether they come to thoir result upon paper, or in the course of conversation, so that they agree, after the result is ascertained, *to*make that result their verdict; *Copperthwaite vs. Jones,*2 Dallas, 55. *Shobe vs. Bell,*1 Randolph, 39. *Grinnell vs.*Phelps, 1 Mass. Rep. 541. *Dana vs. Tucker,*4 John. 487.

■Wells, for pl’ff in error,

MaRshall M. SritoNG, for def’t in error,

The Supremo Court of the United States will not take cognizance of questions of law which may arise in the circuit or district courts upon motions for a new trial, as it is a motion addressed to their discretion; *Woods vs.*Young, 4 Cranch, 237. *Henderson vs. Moore,*5 Cranch, 11. *Barr vs. Gratz,*4 Wheat. 213; but under our statute it is a legitimate subject of inquiry in this court. It will appear that we have not hesitated to express an opinion upon the reason allcdged for a new trial in this case, although it was not presented to the District Court in such a manner that it might have been considered and passed upon there as required by the practice; *Houghton vs. Stone,*4 Wendell, 175; yet to settle ihe practice in regard to the conduct of jurors in this particular, we have consented to consider the subject as properly presented.

Judgment affirmed with costs.