Mitchell v. Borden

8 Wend. 570

• Court: New York Supreme Court
• Decided: January 15, 1832
• Status: Published

Opinion

By the Court, Sutherland, J.

The decision of the court below in excluding the evidence offered, was in precise accordance with the principle settled by this court in Shepard v. Merril, 13 Johns. R. 475. If the matter contained in the notice had been put in the form of a plea, it would most obviously have been bad upon general demurrer; it simply alleges that the facts sWorn to by the defendant were not true, but contains no allegation or intimation that such falsehood was wilful or corrupt; for aught that is disclosed or averred in the notice, it may have been an unintentional and innocent mistake on the part of the plaintiff. There is no hardship in compelling a defendant when he means to justify slanderous Words, to say so in clear and unequivocal terms. The rule adopted in the case referred to, affords a test of easy and universal application, and it would be unwise to unsettle it and substitute the vague inquiry whether the opposite party was or was not, in all probability, actually apprised of what the defendant intended by it.

On the second ground excepted to, it is equally clear the court were correct.

Judgment affirmed.