#### Charles R. Shipman *versus*Silas E. Burrows.

Feb. Term, 1829.

In an action of slander no evidence can be given of any loss or injury sustained by the plaintiff unless the same be specially stated in the declaration, and this whether the special damage be the *gist*of the action, or whether the words be actionable *per se.*

Where, therefore, under the allegation, that, in consequence of the speaking of the slanderous words, “ *certain*Insurance Companies in the city of New-York, re- “ fused to insure any vessel commanded by the plaintiff, or any goods laden on “ board any vessel by him commanded,” the plaintiff was permitted to prove that the *New-York Insurance Company*refused to make such insurance ; the evidence was held to have been improperly admitted.

In this action, the plaintiff cannot give evidence of the fairness of his general character, until it is attacked by the defendant; and the fact, that a justification has been pleaded, makes no difference in the rule.

Where the plaintiff, therefore, was allowed to give evidence of his general goad character, after the defendant had gone through with his defence, without impeaching such general character, this evidence was also held to have been improperly admitted.

This was an action of slander, tried before Mr. Justice Hoffman, on the 22d day of December 1828.

The declaration contained four counts. The first set forth, that the plaintiff was “a ship master and ship owner,” and *as such*had “obtained the good opinion and credit of his employers and “ others.” That the defendant, with the intent “ to cause it to “ be believed by his *employers*and other citizens, that the plain- “ tiff was *dishonest*and *unworthy to be trusted with the command of*“ *a vessel as captain thereof, or with the charge of merchandise to be*“ *shipped on board of any vessel which might be commanded by him, “*and to prevent *certain incorporated companies in the city of*JVew- “ *York from underwriting goods shipped and to be shipped on board “ the said vessel,*and thereby, otherwise to injure him in his said *“*calling,”—“ On the 26th day of .May” 1828, “at the city of “ New-York,” “ in a certain conversation,” “ then and there had “ in the presence and hearing of divers” “ citizens, of and con- “ cerning the plaintiff” and “ *his*calling” “ and of and concerning “ *a certain voyage*by the said plaintiff then lately made, as mas- *400“ ter” "of a certain ship” "from Carthagena to the city of Nevv- “ York,” “ and of and concerning a certain quantity of fustic on « hoard said vessel during the said voyage, and of and concerning «the conduct of the plaintiff in rendering an account of the num- « her of logs or sticks of fustic so on board said vessel as aforesaid, " did falsefy and maliciously speak and publish of and concerning “ the plaintiff, the false, scandalous, malicious and defamatory " words following,” that is to say, “ *he*(the plaintiff) *sawed*up “ wood to make it hold out.” *[Inuendo,*setting forth the meaning of the words.] "By means” “of which,” “the said plaintiff “ hath been” “greatly injured” “as a *ship-master and ship-owner,”*“ insomuch” “ that divers” “citizens” “have suspected and believ“ed the plaintiff to be dishonest and unfit” “to be entrusted and “ employed as a ship-master, or in the command of a vessel, or with “ merchandise to be laden on board any vessel by him com- “ manded,” and “ *certain Insurance Companies in the city of New-*“ *York aforesaid, have, thereby, and on no other account whatever, re-*“ *fused to insure any vessel commanded by the said plaintiff as such -*ship-master,” “ or any goods laden on board of any vessel by him “ commanded.”

The second count charged the defendant with having declared, in “a certain other discourse” *-of and concerning the plaintiff*“ *in the line of his calling as a ship-master,*that he had discharged “ *the plaintiff, from his employ, for dishonest conduct;”*“ *and that if - any further information was wanted as to the character of Captain*“ *Shipman, they*(the persons to whom the words were addressed) “ *could send to the office of the defendant.”*

The third count charged the defendant with having *written*and *published*the same words set forth in the first count “ in the pre- “ sence and hearing *of the officers of divers Marine Insurance Com-“ponies in the city of New-York,”*by reason whereof, “ *divers citi- - zens and neighbours”*“ *refused and declined to retain and employ”*the plaintiff as a ship-master “ or otherwise, *or to ship or freight any goods or merchandise*on *board of any vessel while commanded by him.”*

The fourth count alleged that the defendant, on the same day and year, and at the place aforesaid, wrongfully, maliciously and *401unjustly “ did make, *publish, write, and utter”*“ in the presence and hearing” “ of the officers, to wit, the President, Secretary and Di- “ rectors of *divers Marine Insurance Companies*in the city of New-“York, the following false, scandalous, malicious and defamatory “ *libel,*of and concerning the plaintiff,” “in.substance and effect “ as follows, that is to say, that *he*(the plaintiff) *had sawed up*“ *wood”*“ to make it hold out(with inuendos as to the mean» ing of the words,) “ by means whereof, the said President, Secre- “ tary and Directors, *of the said Marine Insurance Companies,”*“re- “ fused and declined to insure a certain ship or vessel,” “ called “ *Bunker-Hill,*then under the command of the plaintiff,” “ or any “ goods ormerchandise laden or to be laden on board said ship or “ vessel,” on her intended voyage to a foreign port; and by reason thereof, *certain shippers or freighter*§, were deterred and prevented, from lading goods and merchandise on board said ship,” whereby “ the plaintiff’s intended voyage,” “ was delayed and defeated.”

The defendant pleaded the general issue, and gave notice of the following special matter to be offered in evidence at. the trial, viz :'

That before the speaking and publishing of the words “in the *first and second*counts” mentioned, the defendant “ had heard from “ and been told by one *George Hughes,*first officer of the packet “ brig Medina, being the ship and vessel in the declaration men- “ tioned, of which the said plaintiff was master,” that he had been directed by the plaintiff “ to make the number of sticks of fustic on “ board said vessel to hold out, and if necesary in order to do so, “ to saw and split the said sticksand that the plaintiff at the time of uttering the words charged in the declaration, declared to the persons in whose presence they were spoken, “ that he had “ heard and been told the same by the said George Hughes.”

And for a further plea, to the *second*count, the defendant set forth, by way of justification, that on the first day of May, 1828, the plaintiff was master of the packet ship Medina, of *which the defendant was owner.*“ And that on board the said vessel and “ whilst the said plaintiff was master, there had been shipped á “ quantity of hides of excellent quality, consigned to one Jehara“sy of the city of New-York, which hides the said plaintiff *402*“*caused to be mixed up with and exchanged for hides” “ belong *“ to*him,” “ of greatly inferior quality,” and “ caused the said in- « £eI£or hides” “ to be delivered to the said Jeharasy in the place “of” those originally consigned to him. “ Wherefore the said “ defendant,” “ did speak and publish the said words,” &c., “ in “ *the*said second count mentioned, as *he lawfully might for the “ cause*aforesaid.”

The plaintiff joined issue, upon this plea of justification, denying that he exchanged the first mentioned hides for others of inferior value, &c.

At the trial, the plaintiff called one Alexander Thompson as a witness^ who testified, that he was the *Inspector of the New-York Insurance Company.*That he was present at a conversation which took place between the defendant and Mr. McEvers the President of that Company, in May, 1828. The defendant said, that he had discharged the plaintiff from his employment, for malpractice or dishonesty, as to the marking of some hides and . cutting a log of dye-wood in two. The defendant accused the plaintiff of having marked and changed hides of a superior quality for those of an inferior quality and of less value, and of cutting the logs of dye-wood to make them hold out. That Captain Ship-man had been in the defendant’s employment in the Tampico and Vera Cruz trade, and understanding that there was like to be a deficiency in the logs, Captain Shipman directed the mate to cut them in two to make them hold out. *The Company refused to insure the plaintiff in consequence of this information.*

To the question, which elicited this last answer, the counsel for the defendant objected, on the ground, that *the special damage*was averred *too generally*in the declaration, to let in the proof: but the objection was overruled by the presiding Judge.

The witness then further testified that the vessel, on which tire 'said company refused to make insurance, was the Bunker-Hill. That the plaintiff’s character had always stood fair with the company until the time of said conversation, but after that, they refused to insure for the plain I iff, “ *until he had cleared up his character*

*403On his cross-examination the witness further testified, that the defendant, at the time of the conversation, stated, that he had his information from Mr. Hughes, the plaintiff’s first mate, who said he was directed by the plaintiff to cut the sticks and mark the hides.

Upon this testimony the plaintiff rested his cause.

The defendant then introduced the deposition of Hughes, the mate, in evidence, and called Jeharasy and several others as witnesses, to prove that the marks of a number of hides brought in the ship Bunker-Hill (of which the plaintiff was master) from Carthagena to New-York, and consigned to Jeharasy, had been altered by the direction of the plaintiff and that those hides, had been exchanged by him, for others, of inferior quality belonging to himself; the inferior ones being intermingled with the good ones, and delivered by the plaintiff to Jeharasy. The defendant also read the deposition of Hughes, and produced some other testimony to prove that the plaintiff had *directed*the mate, if necessary, to cut and split some of the sticks of fustic, brought home in the same ship, for the purpose of making their number correspond with those taken on board in South America. The defendant also introduced evidence, for the purpose of showing, that he was not actuated by malice in making his communications, having done what he deemed to be his duty.

The plaintiff on his part then called a number of witnesses, to rebut the whole of this evidence, and to impeach the accuracy of Hughes’ deposition. But as this testimony has no material bearing upon the questions of law *decided*by the court, it is omitted here.

During the course of the trial, the plaintiff called Thomas H. Merry as a witness; and in the progress of his examination, he was asked by the counsel for the plaintiff, “ what the *general character*of the plaintiff was *1”*To this question the counsel for the defendant objected, upon the ground that the *general character*of the plaintiff had *not been put in issue,*nor *impugned*by the defendant.

The objection was overruled by the Judge, and the witness testified, that he had known the plaintiff for several years, and that *404his character was good. The plaintiff’s counsel then subsequently examined *several other witnesses*upon the *same point,*and gave the *same answer.*The plaintiff also called one Henry Austin as a witness, who testified, that the plaintiff at the time of his difficulty with the defendant, commanded the Bunker-Hill. That the plaintiff had purchased that vessel, but owing to the difficulty with the defendant, the bill of sale was not delivered to him. *That the company having refused to insure for the plaintiff, he could not procure sufficient credit to pay for the vessel.*

John Austin, a witness called by the *defendant,*also testified to the same point, and stated that he himself applied to the New-York Company, for insurance on the freight of the Bunker-Hill, but that the president refused *to*insure, on account of the defendant’s statements. •

The Judge charged the jury, that he had doubts whether the words stated in the declaration, were actionable in themselves, without an allegation of special damage ; but for the purposes of their decision they were *to be considered*as actionable. That the slander, charged in the declaration, might be disproved by the fact, that the occasion on which the words were spoken, and the purposes of the defendant, might be such as to justify their being used. That if Hughes had made the statements, set forth in the defendant’s notice, to the defendant, and the latter believing them to be true, had communicated them to the Insurance Company, with good motives and for justifiable purposes, then, no malice could be inferred from the speaking of the words. But if on the other hand, the communications had been made by the defendant, for the purpose of injuring the plaintiff, and with a view to put down all rivalry in the trade in which he was engaged, they could be by no means justified. If Hughes spoke falsely, relative to the hides and fustic, but was believed by the defendant, and if the latter communicated his statements, with good motives and for justifiable ends, to the company, giving at the same time the name of his author, then the defendant must be acquitted *;*for in that case, *Hughes*would be deemed the slanderer and not Burrows!

*405That the defendant, having pleaded a justification of the words charged in the second count of the declaration, was bound to assume the affirmative and prove their truth. Whether he had done so, was a question of fact for them to consider: and if they put confidence in the testimony of Hughes, corroborated by that of the defendant’s other witnesses, the weight of testimony was probably with the defendant. But if, on the contrary, they thought that the plaintiff had successfully rebutted the defendant’s evidence, and if they believed that the defendant was actuated by malicious motives, *exemplary*damages in such case could not be deemed improper.

The jury returned a verdict in favour of the plaintiff for *one-thousand dollars*damages and six cents costs.

The defendant now moved for a new trial:

I. Because proof of special damage was not admissible under the pleadings.

II. Because evidence of the plaintiff’s general good character was inadmissible, until put in issue by the defendant.

III. The verdict was against law and evidence.

IV. The damages were excessive.

There was also a motion in arrest of judgment for defects in the declaration.

*Mr. D. Graham and Mr. Ogden Hoffman,*for the defendant,

as to the first point, contended, that the special damage was not set forth with sufficient certainty in the declaration, to entitle the plaintiff to introduce any evidence to prove it. The rule is, that the special damage must be so stated, that the defendant may come prepared to meet the charge. It is not enough to set forth in general terms, that “ *certain Insurance Companies*in the city of New-York” *“*refused to insure any vessel commanded by the plaintiffbut the *particular*insurance company or companies, which so refused should have been specified in the allegation. *406How could the defendant come into court prepared to meet a charge so general in its terms 1 Was he bound to make inquiry at every insurance office in the city of New-York, and ascertain whether *that*particular company was the one referred to in the declaration ? Or was not the plaintiff rather, (who of course knew to which company he referred,) under every legal obligation to point out to the defendant the exact charge he intended to prove *1*When it is said that the plaintiff was bound to set forth with exactness the particular individuals, who refused to make insurance for the plaintiff, we mean that he was thus bound, if he expected to *give evidence, under the charge, at the trial.*

The words in the first count are clearly not actionable *per se,*and the rules of pleading are of course directly applicable to *that;*and the same remark might be extended to the third and fourth counts, were it necessary to examine them. To make words actionable from their application to the plaintiff’s calling, they must relate exclusively to that specific employment, and connect themselves with it *per se.*They cannot be extended by inuendos beyond their natural meaning, so as *thereby*to be converted into a cause of action. Here the inuendoes extend the meaning of the words not actionable, into such as may be slanderous. But the two last counts may be laid entirely out of the question, for there was no evidence offered at the trial to sustain them. The plaintiff did not pretend to support the charges laid in those counts, or to show that the defendant had ever reduced his remarks concerning the plaintiff to writing in any form. It is perfectly clear, that if the words themselves are not actionable, then the special damage *must be*set out in the declaration. In this case, however, the declaration does not allege any injury to the *plaintiff,*from a refusal on the part of the company to insure for him. It states the injury in the most general terms, and the court cannot, by *intendment,*say, that the injury fell upon the plaintiff.

But, if we suppose the words to be actionable per *se,*then the plaintiff was not bound to state any special damage, and the general allegations would have been sufficient. If stated, he *407was under no obligation to *prove*the special damage, but might have treated that part of his declaration as a nullity, and have passed it by. But the complaint is here. The plaintiff has *attempted*to allege special damage, and has stated it incorrectly: under these circumstances, he ought not to have been permitted *to prove it.*We object, not to the *statement*of the special damage in the declaration, but to *the proof*which was let in. under the improper or imperfect allegation. The evidence thus offered, must have had a serious effect upon the minds of the jury; for it brought down a *general*charge to a point, so that the plaintiff’s loss was made certain and tangible. Witnesses testified, that the New-York Insurance Company refused to underwrite upon the plaintiff’s property in consequence of the defendants’ imputations. They went farther, and showed that the plaintiff’s credit was so injured thereby, that he could not pay for the vessel which he had contracted to purchase.

The damage thus proved was *special*in every sense of the word, and that proof had a powerful tendency to produce a verdict against the defendant. Had he known before the trial that it was the *New-York*company, which refused to effect the insurance, then he might have come prepared to explain the circumstances under which the charge was made, and the motives, which induced him to make it.

In the second count, the damage is laid more broadly than the charge will warrant, and it may be deemed defective for this; But we rely upon the general proposition, that the evidence was improperly admitted. *[2 Starkie Ev.*870. *pt. 4.*1 *Chit. Plead.*389. 1 *Saund.*243. *b. n.*5. 10 *John. Rep.*283. 1 Siderfin, 396. 1 *Roll’s Abr.*58. *Bull.*N. *P.*7. 2 *Phil. Ev.*108. *Starkie on Slan.*322.]

II. Evidence of the plaintiff’s general character was also improperly admitted. The action of slander, it is true, puts the plaintiff’s character in issue as to this: *it exposes it to the defendant’s general attack.*If a person has spoken slanderous words of another, whose character is infamous, that general character may be proved by the defendant at the trial, to show that the plaintiff *408is not worthy to receive damages. But if the defendant abstain from any such attack, then he admits the plaintiff’s general character to be good, and the latter will not be permitted to inflame the minds of the jury by introducing evidence of his general rectitude.

The reason is this : the evidence must be confined to the issue. If the issue be as to a particular fact, then the testimony must be confined to that, because the verdict must be rendered from the *facts,*and not from the plaintiff’s *general character.*A person of spotless general reputation, may be guilty of the particular act laid to his charge, and the minds of the jury are not to be drawn away from the facts relative to the charge by any extraneous proof.

Evidence of the plaintiff’s *rank*and *condition*in life may, in some instances, be given for the purpose of graduating the damages by a proper standard. So in some cases the plaintiff may give evidence of his *conduct'where that*is the subject matter of the charge. For instance, if a captain of a vessel were charged with improperly carrying too much sail from drunkenness, he might give evidence of his general conduct in that particular. But the rule is inflexible, that the plaintiff can never give evidence of his general character in an action of slander, until it is put in evidence by the defendant himself. [1 *Camp. R.*460. *Fowler v. The Ætna Ins. Co.*6 *Cowen R.*675. *Stow v. Converse.*3 *Con. Rep.*325. 345. *Larned v. Buffington.*3 *Mass. Rep.*546. *2 Bos. and Pul.*284. ]

[The counsel for the defendant also went into an elaborate examination of the third and fourth points, and of the motion in arrest of judgment. But as the court gave no opinion upon these points, the arguments are omitted.]

*Mr. J. Anthon*for the plaintiff, *contra.*

I. The words in all the counts being introduced with *a colloquium*as to the plaintiff’s profession or calling are actionable *per*se; and if so, then the averments of special damage will not vitiate the declaration. Where the words are not actionable in *409themselves, but the *special damage*is the *gist*of the action., then the averments of that damage must be precise. No matter how humble the calling of an individual may be, words spoken of him in relation to that calling, which have a tendency to injure him in it, are held to be actionable. [1 *Lev. 115. Demarest v. Haring,*6 *Cowen’s Rep.*76. *Mott v. Comstock, 7 Ib.*654. *Burtch v. Nickerson,*17 *John. R.*217.]

If the words used by the defendant are actionable when applied to *a*ship-master, then the colloquium sufficiently connects itself with the averment. The first count states, that the injurious words, were spoken with an intent “ to cause it to be believed” “ that the plaintiff was dishonest and unworthy to be trusted with 4‘the *command of a vessel as captain thereof.”*It then avers that the words were uttered in a conversation concerning the plaintiff and *"his calling”*and concerning a certain voyage then lately made by hint as *master of a certain ship.*Can there be any doubt then, that *such*words, thus uttered, must naturally be deeply injurious to the plaintiff in the line of his calling *1*If so, then they are actionable *per sc,*without any allegation of special damage; and the special damage is merely in *aggravation*of the general damage, and it need not be so precisely stated as where it forms the gist of the action.

As matter of aggravation, the special damage is averred with sufficient precision. If the averment *is*defective in *form,*then the defendant should have *demurred,*and he could not take advantage of the defect at the trial.

He is now driven on that point to his motion in arrest of judgment. But the matter alleged in aggravation, was a natural result of the slanderous words, and as the jury might, under a general count, have been called upon to infer it, it was admissible in evidence without averment. The matter in aggravation was not merely the refusal to insure, but the consequences resulting from the refusal: viz. the loss of freight by persons refusing to ship, when they could not insure. The plaintiff at the trial, abandoned this matter of aggravation ; having only *proven the refusal to insure,*he went into no proof of consequential loss of freight.

*410But the second count is good beyond all doubt, and the defendant’s counsel admit that it is. The words in that count are 0f then^elves actionable, and where that is the case, the averment 0f special damage will not prejudice the declaration ; *[Starkie on Slan.*365.] and it need not be averred with any precision. *[Stark. on Evid. book 4., p.*871.] The verdict being general, one good count is sufficient to uphold it, and if nced.be, the Judge’s notes can be referred to, for the purpose of directing the judgment to the second count. [7 *Cowen’s R.*728.]

As to the evidence of special damage, it was confined to the testimony of Thompson, and the refusal of the *New-York Company*to insure. The refusal to insure was no damage *per se.*The court will, therefore, sustain the verdict if possible, without inferring that the jury gave damages on that score. [1 *Bin. Rep.*185. *McMinney v. Birch.]*There is a fallacy in the supposition that the defendant did not come to the trial prepared to meet the very proof of special damage which was offered. The declaration stated that *certain Insurance Companies*refused to insure, and the defendant well knew *where*his attack upon the plaintiff had been made. He in point of fact could not *but*have known, that it was the *New-York Company*which refused to insure, and he was not taken by surprise.' The court will not infer that the verdict was given by the jury for the *special damage,*but on account of the *general aggravation*of a charge, maliciously made, which they believed to be untrue-. The defendant has not, therefore, any real cause of complaint on this ground, and the court will not grant him anew trial unless, substantial justice requires it.

II. The proof as to the general character of the plaintiff was not offered until after the defendant had.gone into his justification, and charged the plaintiff with dishonesty amounting to a felony. It was therefore admissible, first to' rebut the charge, and second, to aggravate the damages. The plaintiff had a right to offer the evidence, after the defendant’s proof, for the purpose of showing to the jury, that it was in no wise probable, that any man of good character would descend to the contemptible conduct with which he was charged ; especially where the whole of the defendant’s *411evidence was controverted, and the facts charged against the plaintiff were left in doubt.

In an action for a libel, where the defendant justifies, the plaintiff may offer his character in evidence, before he is attacked at the trial; especially where the defendant’s charge imputes a crime to the plaintiff. The very imputation takes away the presumption of good character, and the plaintiff ought upon every principle, to be permitted to show what his true character is. *[Stark. on Ev.*367 370., *Book*4. *King v. Waring, 5 Esp. R.*13. 3 *Mass. Rep.*546. *Harding v. Brooks. 5 Pick. Rep.*244.]

III. The damages are such as the Judge contemplated and charged the jury to give, if they disbelieved the testimony of Hughes and should come to the conclusion that the slander was circulated by the defendant to put down the plaintiff’s rivalry in trade, and this matter was entirely within their province. Besides this, the evidence was sufficient to warrant them in coming to (hat conclusion.

IV. No new trial can be granted for excessive damages, unless they are so flagrantly excessive as to evince corruption or prejudice on the part of the jury. *[Townsend v. Hughes, 2 Mod. R.*150. *Beardmore v. Livingston, 2 Wil. 248. Sharpe v. Brice. 2 Sir W. Black. R.*942. *Gilbert v. Bertinshaw,*1 *Cowp.*231. 4 *Term R.*651. *Coleman v. Southwick,*9 *John. R.*51. *Southwick v. Stephens,*10 *Ib.*443. *Grant on new*trials.]

The Chief Justice

in delivering his opinion, observed, that a new trial ought to be granted upon the ground, that the evidence as to special damage was improperly admitted: that the averments in the declaration were not sufficiently definite to allow such evidence to be given on the part of the plaintiff. The first count alleges, that the defendant with the intent to cause it to be believed, that the plaintiff was dishonest and unworthy to be entrusted with the command of any vessel, “ and to prevent *certa*in Insurance Companies in the city of New-York from under-. *412“ writing goods,” &c., uttered the words complained of. The fourth count sets forth, that the defamatory words were uttered anc) published in .the presence and hearing of the President, Secretary and Directors of *divers*Marine Insurance Companies in the cjty. 0f New-York, by *means*whereof the said Marine Insurance Companies refused and declined to insure a certain vessel called the Bunker-Hill,' &c.

Now these general allegations, it is obvious, would give the plaintiff at the trial the range of *all*the Insurance Companies in the city of New-York, as to his proof of special damage. But the' defendant would be wholly unapprised of the particular company, which the plaintiff intended to prove to have refused to make the insurance, and of course would have no opportunity to prepare *himself to*rebut or explain the evidence, which might be offered against him.

The rule is well settled, that no evidence can *be given*in an action of slander, of any special damage sustained by the plaintiff) unless it be particularly set forth ' in the declaration. The object of the rule is to prevent the defendant from being taken by surprise. In the present case, the plaintiff was permitted under this declaration, (which refers in general terms to *certain*Insurance Companies,) to prove that the *New-York*Insurance Company, refused to insure the plaintiff in consequence of information communicated by the defendant to their president. The defendant being unapprized of the particular company referred to by the plaintiff in his declaration, had no opportunity of showing the circumstances under which his information was communicated, and of course, may have been taken by surprise. The averment of the special damage was altogether too loose, and general to admit the proof, and for this reason there should be a new trial.

The Chief Justice further remarked, that he should give no opinion upon the other point, as to whether the evidence of the plaintiff’s general good character was admissible under the circumstances or not. But that the evidence admitted *by*the *Judge*of special damage, being improperly received, he was of opinion that there must be a new trial, the costs to abide the event of ' the suit.

*413Hoffman, J.

This was an action of slander, tried before me at the last December Term of this Court. The defendant moves in arrest of judgment and also for a new trial, on the ground that improper testimony was admitted. I do not consider it necessary to determine the first question, as, after much reflection, and an examination of the authorities cited oh both sides, I have arrived at the conclusion, that a new trial ought to be granted.’ The declaration sets forth the situation of the plaintiff as a ship-master", the uttering of the slanderous words by the defendant, and that by reason of the same, “ *certain*Insurance Companies in the “city of New York, refused to insure any vessel commanded by ’“ the said plaintiflj as such ship-master, or any goods laden on “ board any vessel by him commanded.” The plaintiff produced as a witness to support his right of action Alexander Thompson, who testified, that the words charged in the declaration were spoken by the defendant in the office of the New York Insurance Company, of which office he is the Inspector ; and that the said company refused .to insure the plaintiff, in consequence of the information given by the defendant, until the plaintiff should clear up his character ; and that the vessel so refused to be insured was the Bunker Hill, &c. To this testimony the counsel for the defendant objected.

It appears to be a well settled rule of law, “That no evidence “shall be received of any loss or injury which the plaintiff has “ sustained by the speaking of the words, unless it be specially “ stated in the declaration [1 *Saunders,*243, *note*5.] Nor is it material whether the words be actionable *per se,*or not. Formerly less particularity was required, when the words were actionable *per se,*than when they were not; but Williams, in his .notes to Saunders, to which I have referred, observes, “that “ modern practice does not warrant the distinction, and that it “ is now fully established, that the special damage in each case “ must be alike particularly specified in the declaration.” ' This rule has been sanctioned by all the decisions in the English courts, and by the decisions in our own, as far as I have examined them. In confirmation of the principle, I refer to the cases cited by Williams, in his notes to the case of *Craft v. Boite,*to *414*I. Chitty on Pleading,*385, 386, and to the case of *Herrick v. Lapham, 10th John.*281. If this rule be correct, (and that it is I have no doubt,) let us apply it to the particular ,case before us. Under the *general*allegation, that *certain*Insurance Companies refused to insure, the plaintiff was admitted to prove that *a. particular*Insurance Co., to wit, the New York Insurance Co., refused, &c. The reason of this rule is an obvious one. The particular persons by whom the plaintiff was injured, in consequence of the defamatory words, must be within his own knowledge, and they must be so particularized in the declaration, as that the defendant may have notice of the cause of complaint, and be enabled to meet it, if the charge be false, &c. [I *Chitty,*857.] If the *New-York Company*had refused to insure, the plaintiff must have known the fact, and he had no right to conceal that knowledge, and throw the burthen upon the defendant of preparing his defence, by making inquiries of every Insurance Company in .the city of New-York, under the' uncertainty to which particular company the plaintiff might direct his proof.

The counsel for the plaintiff, however, contends, that as the words were actionable *per se,*this particular testimony became unimportant. This undoubtedly would be a good objection to a demurrer to the declaration, upon the generality of the averment of the special *damage;*but the objection here, is not to *the pleadings,*but to the *proof,*which was admitted under the pleadings. And I have already shown, that the rule is as inflexible, when the words are actionable, as when they are not. A further answer is offered by the counsel for the plaintiff, that the refusal to insure, as proved by captain Thompson, did. not amount to any proof of special damage, ás they did not follow it up by showing, that in consequence of such refusal the plaintiff lost any freights or other advantages. The question, however, still recurs, why' or for what purpose did they offer it *1*If. it could .amount to nothing, why did they persist in offering it, after the objections of the counsel for the defendant ? ‘ If the testimony was not authorized by the pleadings, and the law by which those pleadings are tobe governed, it ought to have been rejected as irrelevant. But it cannot be denied, that with a jury in a commercial city, and *415composed in part, at least, of commercial men,that the injury or damage that would result from a refusal to insure by a respectable company, on account of charges made against an individual making the application, is so immediate and apparent, that it must and would have a decided influence upon their minds in the verdict that they would render. It would be considered by them as an *injury*done to him, and the proof of such injury would be admitted, in violation of the rule, “ That no evidence of any loss “or *injury*shall be received, unless particularly stated in the declaration.” [1 *Saunders,*243. *note.]*

But even if this answer of the plaintiff’s counsel should be admitted to have force, as respects the testimony of captain Thompson, does it apply to the testimony of Henry and John Austin, who were also produced by the plaintiff, subject to the objection of the defendant’s counsel *1*Henry Austin testified, that the plaintiff commanded the Bunker Hill; that he purchased her, but that the bill of sale was not delivered on account of the difficulty with the defendant, and that the company having refused to insure, the plaintiff could not procure sufficient credit to pay for the vessel, that the witness and dthers who had been concerned in the purchase were injured as well as the plaintiff. John Austin testified that he applied to the New-York Insurance Company for insurance on the freight of the Bunker Hill; that the president refused to insure on account of the statements of the defendant; that the Bunker Hill had been bought by the plaintiff, but the bill of gale had never passed. He could not remember the names of the applicants for freight, nor who had refused to give it, because the office would not insure until the plaintiff’s character should be clea^d up.

This testimony is to be taken in connection with the previous testimony of captain Thompson, who hud proved, that in consequence of the alleged slander of theplaintiK,.the N. Y. Co. had refused to insure. And U. A.ustm testifies, that hr consequence of this refusal, the plaintiff was prevented from consummating a contract which he had entered into for the purchase of thq Bunker Hill, and that no bill of sale was delivered to the plaintiff, because, on account of such refusal by the company, he could, mot procure *416sufficient credit to pay for the vessel. This testimony appears to me not only to make out an injury sustained by the plaintiff; but amounts to proof of a clear technical special damage sustained. The ordinary cases in which special damage is alleged to support words not in themselves actionable, are those in which, by reason of the words, the plaintiff lost the benefit of some contract which he would otherwise have had. It is so, “ When a communica- “ tion or treaty of marriage is alledged, and the marriage was “ lost by reason, of speaking the words.” *[Moody v. Baker, 5 Cowen, 353. Opin. of Woodworth, J.]*It is so in the usual cases of slander of title, although in these latter, the plaintiff is prevented from selling, on account of the slander: and the general rule undoubtedly is, “ that when the plaintiff is prevented from “ succeeding to any preferment, benefit, or advantage whatever, “ by reason of the slanderous words, he may maintain an action “for the special damages.” *[Starkie on Slander,*160.]

The law would therefore presume that this contract for the purchase of the Bunker Hill wouldhave been a gainful contract to him, and even if it did not, H. Austin’s testimony removes all doubt, by clearly proving that the plaintiff, as well as the witness and others who were concerned in the said purchase, were expressly injured by the purchase not being consummated. Had the plaintiff consummated the purchase, as he might have done, had it not been for the slander, he would have been entitled *to*the freight of the Bunker Hill; and J. Austin proves that applicants for freight refused to give *it,*'because.“ the offices would not insure.” By what averment in the declaration was this testimony covered *l*So far from being particularized, there is hardly a *general*averment that would embrace it; and if the *rale he*as I have stated it, the particular persons with whom *the*contract was made for the purchase of the vessel, ought to hare been named ; and unless so named, the testimony ought n»i to have been received. If not admitted to *prove special*damage, it was not admissible to *aggravate*the ■damages by pawing a *particular*damage or injury *in addition*to the general one that the law infers. I am therefore of opinion, that I erred upon the trial in admitting the testimony I have referred to. J may be permitted to sav, that the testimony was ad*417mitted by me with strong doubts, which I expressed upon the trial at the time, and in the absence of all authorities. Subsequent examination, and the arguments of counsel, have satisfied me that I was wrong, and I am free to retract the error.

The second point on which the defendant relies is, that the plaintiff was allowed to prove his general character, without any impeachment of it by the defendant, except so far as the particular facts proved in justification, imputed dishonest conduct to him. The plaintiff insists that he had that right, as the justification of the defendant, and the evidence offered under it, directly charged the plaintiff with dishonest conduct, and that the plaintiff might therefore show his general character for honesty and integrity, *to*rebut the specific facts proved by the defendant, or the inference to be drawn from them. To sustain this position, the plaintiff relies upon the practice in criminal proceedings, where the person indicted is allowed to meet the specific proof of the charge laid in the indictment by evidence of his general character. This, however, is an exception to the general rule, and is recognized as such exception in all the books. The case of *The Attorney General v. Bowman,*cited in the note to 2 Bos. *and Pul.*532, is in point. That was an information, proceeding against the defendant on a charge of corrupting officers and keeping false weights. The very essence of the proceeding was founded upon proof of corruption on the part of the defendant; but the prosecution" was for *the penally,*and not for the crime. To meet this proof, testimony was offered of the general character of the defendant, to show that he was incapable of committing such a crime. But the testimony was overruled. Eyre Ch. B. says, I cannot admit it in a civil suit: in a direct prosecution for a crime, such evidence is admissible. If such evidence is admissible in this case, it would be necessary to try character in every charge of fraud. The rule that prevails in criminal cases, does not therefore apply: and to the decisions in civil cases in similar and analagous ones must we refer for the true rule to govern us in this particular cause.

The circumstance of a justification being pleaded, can be, Í should apprehend, of no farther Importance, than as it affects the *418right to introduce tlxe testimony on the part of the defendant, tending to prove the charges against the plaintiff: for if by the rules of pleading, he had been allowed to do it under the general issue, the principle would still be the same; and that principle, if it be correct, must be, that when the defendant is allowed, under the pleadings, whatever they may be, to prove substantive facts of fraud, on the part of the plaintiff, that the plaintiff may meet those facts by proof of general character. I do not find that this principle has ever been sanctioned, except in the case cited from *5th Esp. p.*13. *(King*v. *Waring and wife,)*which is a solitary case—a *nisiprius*decision—and is contrary to the general spirit of all the cases governing similar circumstances.

A contrary principle is recognized by Lord Ellenborough in *Bamfield v. Massey.*[1 *Camp.*460.] by our Supreme Court in *Fowler v. Ætna Ins. Co.*[6 *Cowen,*673.] In this last case, the defendant, offered evidence of fraud on the part of the plaintiff, and the plaintiff met this charge by proof of his good character for integrity. Chief Justice Savage says the testimony was improperly admitted, and observes that every man must be answerable for every improper act, and the character of every transaction must be ascertained by its own circumstances, and not by the character of the parties. This principle I conceive must be equally applicable to a case of slander, except that in such action the defendant is allowed to impeach the general character of the plaintiff, (a question thatis now settled, although upon it formerly the court were divided; and when that is done upon his part, the plaintiff is allowed to meet such general impeachment by proof of general good character on his part.

But a case very similar to this, has been expressly decided by the Supreme Court of Errors of the state of Connecticut. *[Converse v. Stow,*3 *Conn.*325.] That was a case of libel, charging the plaintiff with dishonest practices. The defendant justified, and in answer to his proof, the plaintiff offered his general good character in evidence. The court decided that the testimony was inadmissible, and the opinion is not only entitled to weight as the decision of a court of a sister state, but also from the general *419reasoning and able opinion of Chief Justice Hosmer in support of it.

I have gone more at length into the examination of these questions, than I should otherwise have done, from the circumstance, that the cause was tried before me, and that it was through my ruling that the testimony was admitted. I think the defendant is entitled to a new trial.

[After delivering this opinion, Judge IIoffman remarked, that the case of *Harding v. Brooks,*[5 *Pickering's Rep.*244.] had just been put into his hands by the counsel for the plaintiff. That he had examined the case with care, and found some principles laid down in it, which apparently conflicted with the opinion he had formed, and the cases he had cited. That, although he entertained the highest respect for the decisions which emanated from that tribunal, yet he could not subscribe to their correctness in the case referred to, where they differed from the opinions of this court upon the same subject, especially as no authority was cited by the learned Judge in Massachusetts in support of his posy tiene.]

Oakley, J.

This was an action of slander, in which the plaintiff obtained a verdict. The defendant now moves for a new trial on two grounds: 1st. That evidence of special damage was admitted, and 2ndly, that the plaintiff was suffered to give evidence of his general good character, when it was not impeached by the defendant.

It appears to be the established rule, that no evidence can be given of any loss or injury sustained by the plaintiff, unless it be specially stated in the declaration, and this, whether the special damage be the *gist*of the action, or whether the words be actionable in themselves, [1 *Saun.*243. *b. (n.*5.) 2 *Phil. Ev.*108.] In the present case, proof was given that one of the Insurance Companies in New-York had refused, ih consequence of the words spoken by the defendant, to insure a vessel belonging to the plaintiff; and that he thereby sustained a special injury. This proof was not admissible under the pleadings, the averment of *420special damage, being altogether insufficient. It is impossible to say what influence this evidence may have had upon the verdict of the jury.

The plaintiff was also allowed to give evidence of his general good character after the defendant had gone through with his defence, without impeaching it. This also strikes me as inadmissible. The general rule, as laid down in elementary writers, [2 *Phil. Ev.*107.] is, that the plaintiff cannot give evidence of the fairness of his character until it is attacked. It is presumed to be good, until the attack is made, and the plaintiff must rely on this general presumption, until he is assailed. Such has always been the practice at *nisiprius,*as far as my observation has extended. The defendant may, under the plea of not guilty, assail the general character of the plaintiff, and the latter is bound to be always prepared to repel the assault. But, if the defendant relies on a justification of the charge, by proving the plaintiff’s guilt by direct evidence, it would operate as a surprise on him, to permit the plaintiff to repel that evidence by proof of general character.

In the case of *Harding v. Brooks,*[5 *Pick.*244.] the Supreme Court of Massachusetts have held, that the plaintiff may give evidence of general good character, to repel the proof offered by the defendant under the plea of justification. This case is opposed directly to the conclusion which I have adopted; but I cannot consider it as a controlling authority. The uniform practice in this state, has been otherwise, and I think it the safe and correct rule.

JVeto *trial granted.*

[H. M. Western, *Att'y for the plff.*D. Graham, *Jr. Att’y for the deft.]*