Van Ankin v. Westfall

14 Johns. 233

• Court: New York Supreme Court
• Decided: August 15, 1817
• Status: Published

Opinion

Per Curiam.

This is an action of slander, charging the for saying of the plaintiff, 11 He is a thief, and has stolen fifty dollars in cash from Jacob De (VittIt appeared, in proof, that Jacob De Wiil resided in the state of Pennsylva-nia ; and that the transaction referred to by the defendant took place in that state. The plaintiff’s right to sustain the action was objected to, because no crime was alleged against him for which he could be punished here. This objection was proper-ly overruled. Although the plaintiff might not be amenable to our law, had the charge against him been true ; yet, from any thing that appears, he might have been demanded as a. fugitive from justice, and have been punished, if guilty, in the state of Pennsylvania. But the right of the plaintiff to sustain the does not depend upon the question, whether he was liable to be prosecuted and punished for the crime charged against him. As when the statute of limitations has run against the ■ .criminal prosecution, it is still slander to charge the party with the offence; and the party making the charge would have a righi to justify, and show the truth of his allegation, the criminal prosecution might be barred. The offered in mitigation of damages was properly overruled. The testimony was to show the truth of the charge alleged against the plaintiff, and was not admissible under the general issue, in justification; and it is a well-settled rule that the truth of the charge is not admissible in mitigation of damages. The •motion for a new trial must, accordingly, be denied.

Motion denied.