makes for his principal, and which, therefore binds him, but it
is not admissible as the agent's account of what passes. For
example, the declaration of a servant, employed to sell a horse,
is evidence to charge the master with warranty, if made at the
time of sale; if made at any other time, the facts must be proved
by the servant himself. The admissions of an agent, not made
at the time of the transaction, but subsequently, are not evidence.
Thus, the letters of an agent to his principal, containing a nar-
rative of the transaction, in which he had been employed, are
not admissible in evidence against the principal. Vide Roscoe
on Evidence, 29, in note, and the authorities there cited.
Judgment reversed, and a venire de novo awarded.
Cited by Counsel, 2 Wh. 342, 413 ; 3 W. & S. 86 ; 5 W. & S. 365 ; 8 W. 545 :
10 W. 249; 1 C. 394 ; 6 C. 245 ; 7 S. 423 ; 9 S. 413; 10 S. 171; 23 S. 78; 5 K
521 ; 6 O. 133 ; 3 W. N. C. 505 ; 11 W. N. C. 114 ; 12 W. N. C. 74.
Cited by the Court, 6 W. & S. 290 ; 7 S. 343 ; 1 N. 123.
Approved and followed, 21 S. 355.
Statements by an agent of a company soon after an accident, that the ser-
vants of the company were incompetent, or that the apparatus of the com-
pany was bad, are inadmissible, 1 N. 123 ; 6 O. 131.
[*295] * [PHILADELPHIA, MARCH 29, 1833.]
Smith against Buckecker and Wife,
IN ERROR.
In ap action of slander for calling the plaintiff a whore, the defendant can-
not, under the plea of not guilty with leave to give the special matter in evi-
dence, give evidence to prove that the plaintiff was a reputed thief before the
time at which it was proved that he had spoken the words.
330
Jfareft29,1833.] OF PENNSYLVANIA. 295
[Smith v. Buckecker and wife.]
Nor can the defendant be permitted to prove, that before the time at which
he had spoken the words, it was reported, that the plaintiff had been accused
by her sisters of having had connection with J. H.
ERROR to the Court of Common Pleas, of Northampton county.
After argument by Scott, for the plaiutiif in error, and J. M,
Porter, for the defendant in error, the opinion of the court, in
which the case is fully stated, was delivered by
KENNEDY, J. This action has been brought into this court
by writ of error to the judges of the Court of Common Pleas
of Northampton county, where it was commenced by the de-
fendants in error, against the plaintiff in error, for defamatory
words spoken by him of Rebecca Buckecker, one of the defend-
ants in error. There are six counts in the declaration. The
words in the two first are that " she whored with John Huff;"
in the third and fourth, that " she had whored with Doctor
Stout ;" in the fifth, " you are a whore," and in the sixth, " she
is a whore."
The defendant below pleaded first, the general issue, with
leave to give the special matter iu evidence ; afterwards, he
added the plea of justification to the first and second counts ;
and ten or more days before the time of trial, according to a
rule of the court below, gave the plaintiffs there a notice of
special matter in the following words, to wit :
"Sir You will please take notice that I have this day added
the plea of justification to the first and second counts of the
plaintiff's declaration, and that under the pleas entered, defend-
ant, in mitigation of damages, will offer evidence to prove the
general character of the plaintiff, Rebecca Buckecker, late Lynn ;
in substance, amounting to this, that she is dishonest, and a re-
puted thief; that she is lewd in her manners, and a reputed
whore."
On the trial of the cause, after the plaintiffs below had given
evidence of the speaking, by the defendant, of the words charged
in the declaration, he offered, inter alia, to give evidence that
Rebecca, one of the plaintiffs, was reputed a thief before the
time at which it was proved that he had spoken the words.
This evidence was objected to by the plaintiffs' counsel, and
overruled by the court. *Defendant's counsel excepted r*oqpi
to the opinion of the court in this behalf, which is as- *-
signed for the first error.
The defendant further offered to give evidence, that it was
reported before the time, at which, according to the evidence
given, he spoke the words, that the said Rebecca was accused
by her sisters of having connection with black John Huff, to
which the plaintiffs' counsel also objected, and the court over-
331
296 SUPREME COURT [PhUadtlphia,
[Smith v. Buckecker and wife.]
ruled the evidence. To this opinion of the court, the defend-
ant's counsel excepted, and has made it the ground of the second
error, which, with the first, are all that have been assigned, and
now remained to be considered.
It is not claimed by the counsel for the plaintiff in error, that
any portion of the evidence rejected by the court below ought
to have been admitted under the plea of justification, but it is
contended strenuously that under the plea of not guilty with
leave to give the special matter in evidence, the whole of it ought
to have been received.
With respect to the evidence to which the first error relates,
it is said, that every plaintiff who prosecutes an action for defama-
tion, puts his general character in issue, and that it therefore be-
comes competent for the defendant to show that his general
character is bad, in any and every point of view whatever, and
totally destitute of any and all the virtues necessary to consti-
tute a good moral character. These are propositions to which
I am not prepared to give my assent fully. It was at one time
held in England, that where the defendant pleaded the general
issue without a justification, he might prove that the plaintiff
had been generally suspected of the offence imputed to him by
the defendant, Earl of Leicester v. Walter, 2 Camp. 251 ;
v. Moore, 1 Maule & S. 284 ; 2 Stark. Evi. 877. But it
seems to be settled now, that the plaintiff cannot give evidence
of his general good character with a view to enhance the dam-
ages. Stuarts. Lovell, 2 Starkie's Ca. 84; Cornwall v. Rich-
ardson, R. & M. 305. Nor can the defendant, on the other
hand, show that it is bad in mitigation of damages. Jones v.
Stevens, 11 Price, 235. During a certain period, however, it
was held, that the defendant under the general issue might as-
sail the general character of the plaintiff, and give evidence that
it was bad ; and as long as this was the rule, the plaintiff was, of
course, admitted to repel it by giving evidence of his general
good character; but it was only in cases where his general char-
acter was first impeached by the defendant, that he was permitted
to give evidence of its being good, for that was always presumed,
until some attempt, at least, was made to rebut it. 2 Stark. Ev.
370-1, 878.
Under the application of the rule which seems to prevail at
present in England, it is clear, that the evidence referred to in
the first bill of exceptions was not admissible, which was to show
that Rebecca, one of the plaintiffs below, was reputed a thief.
It is very evident, that evidence to prove the fact of her being
a thief, could not have been received either in bar of the action,
I"*2Q71 nor y e * * n m ' tl ' a ^ on f ""damages, because altogether
J foreign to the issues joined as well as to the charge
332
J/arcA29,1833.] OF PENNSYLVANIA. 297
[Smith v. Buckecker and wife.]
made by the defendant upon the character of the plaintiff.
Hilsden v. Mercer, Cro. Jac. 677; Andrews v. Vanduzer, 11
Johns. 38; Sawyer v. Eifert, 2 Nott & M'Cord, 511. But it
is contended, that although it was not competent to prove the
fact of her being a thief, still evidence of her being reputed
such was admissible, as showing that her general character was
not good.
It appears to me that this is claiming too great a latitude, and
an indulgence that should not be extended to a slanderer. It
is going far enough in such cases, to permit a defendant who
cannot justify, to prove in general terms that the general char-
acter of the plaintiff is not good, without permitting him tc
prove that the plaintiff has been suspected or reputed to be
guilty of a crime or crimes different from that imputed and set
forth in the declaration.
Such evidence could not in the least extenuate the offence of
the defendant below. On the contrary, does it not seem to be
rather an aggravation of it ? Is it not in effect saying, " It is
true I have charged you with being a whore, and although false
and entirely groundless, yet I am determined not to be alto-
gether frustrated in my design of destroying your character,
and will therefore prove now, not that you are a thief, for that
I am unable to do, but that you have been at least reputed
such ?" This, as it appears to me, would be permitting the de-
fendant to give utterance to another slander, for the purpose,
as he says, of palliating the first, when, as likely as not, he
may be the author of both ; for although it may have received
a circulation that has attached, in some degree, to the general
character of the party, still it was no doubt originally the off-
spring of a single tongue, but whose, it may be impossible to
identify, on account of the confusion produced by its general
circulation. I am therefore unwilling to sanction a principle,
which may enable a man to offer one slander, which he may
have been the author of as likely as anybody else, as an extenu-
ation of the second.
Whether, under the plea of not guilty with leave to give the
special matter in evidence, he ought to be permitted to give evi-
dence of circumstances which had induced a suspicion of the
plaintiff's guilt, in order to mitigate the damages, without at
the same time showing the plaintiff's innocence and acquitting
him of all suspicion ; or whether he ought to be permitted with
the like view to give evidence that he was told the slander by
another, without having mentioned his author at the time he
spoke the words; or whether the defendant shall be at liberty
to give evidence of the plaintiff's general character being bad,
simply, without more, are questions which do not necessarily
333
297 SUPREME COURT [Philadelphia,
[Smith v. Buckecker and wife.]
arise in this case, and upon which I therefore forbear to express
an opinion. But I am most decidedly of opinion, that he ought
not to be permitted to go one jot beyond the affirmative answer
to each of the foregoing questions, if so far.
It is also proper to observe, that the evidence connected with
this first error assigned, was not evidence to show that the
T*2981 pl^tiff was *generally reputed a thief, but barely to
prove that she was reputed, that is, accounted such,
which might have been only by one or two persons ; so that the
evidence rejected by the court below, was not such as could
have incorporated the charge of thief into her general charac-
ter. Upon every principle, therefore, the court were right in
rejecting it.
The second error assigned is, that the court below rejected
the evidence offered by the plaintiff in error, which was to prove
that it was reported that Rebecca Buckecker, one of the
defendants in error, was accused by her sisters of having had
connection with black John Huff. It does appear to me, that
it was carrying the matter too far, to say that there was error
in rejecting this evidence, and gravely to present to the court a
bill of exception on account of it. The offer, it will be observed,
was not to give evidence that any one had ever said that she had
had connection with Huff, but that it was reported , that her sisters
had accused her of it. I confess that I am unable to see how
such a report could in the least palliate the conduct of the
plaintiff in error, or lessen the nature of the injury. It is not
even pretended, or at least no evidence was offered to show, that
the sisters ever made such an accusation, but merely that a re-
port had some how or other got into circulation to that effect ;
which might, for aught that was offered to be shown, have orig-
inated with and started from the plaintiff in error himself. A
man who would take advantage of such a report being in circu-
lation, although he had no concern in originating it, and make
it the basis of charging the female directly with the offence, as
was done in this case, ought certainly not to be punished the
less severely on account of it.
Beside, there was another objection to the receiving of this
evidence, which I think was insuperable. It was not contained
within the notice of special matter w r hich was given, and accord-
ing to the rule of the court below, could not be admitted after
objection by the adverse party. We think the court below de-
cided correctly in rejecting the evidence, and therefore affirm
the judgment.
Judgment affirmed.
Cited by Counsel, 2 Wh. 324 ; 3 S. 420.
Cited by the Court, 3 S. 346.
334
March 29, 1833.] OF PENNSYLVANIA. 299
[PHILADELPHIA, MARCH 29, 1833.] [*299]
Young against Shook.
IN ERROR.
Under a submission of all matters in variance between the parties, arbitra-
tors have a right to make an award as to costs, though nothing be said about
them in the submission.
In an action against a surviving obligor in a joint and several bond, it is
not a good cause of demurrer to a plea of submission and award, that the par-
ties to the submission were not only the parties to the action upon the bond,
in which the plea is pleaded, but that one of the executors (erroneously .called
in the plea one of the administrators) of the deceased obligor, also joined in
the submission.
Under a submission of all matters in variance between the parties, involving
the question whether a certain bond had been paid an award, not under seal,
discharging the bond, is good.
Where, in an action on a bond the defendant pleaded specially, that "all
matters in variance between the parties " had been submitted to arbitrators,
without any averment or allegation that the bond was the matter in variance,
or formed any part of it, but the plea stated that the arbitrators made their
award " of and concerning the premises and of and concerning the said writing
obligatory," held, that it appeared upon the face of the plea, that the arbitra-
tors had exceeded their power in passing on matters not submitted to them,
and that the award was in this respect void ; and that this defect in the plea
might be taken advantage of by the plaintiff, either by replying mil. agardfait,
by pleading specially, or by demurrer.
ERROR to the Court of Common Pleas of Northampton county,
in an action of debt brought by John Young, the plaintiff in
error, against John Shook, the defendant in error, surviving
obligor in a bill obligatory, executed by himself and John Kem-
merer, on the 12th of June, 1811, by which they bound them-
selves to pay to Young, two hundred and thirty-two pounds and
thirteen shillings, on the twelfth day of June next following the
date of the instrument. Kemmerer died before suit was brought.
The defendant pleaded payment with leave, &c., and after-
wards added the following special plea :
"And the said Jacob Shook, for further plea in this behalf,
by leave of the court here first had and obtained, according to
the form of the statute in such case made and provided, says,
that the said John Young ought not to have or maintain his
aforesaid action thereof against him, because he says, that after
the making of the said writing obligatory, and before the com-
mencement of this suit, to wit, on the eighth day of March, in
the year of our Lord one thousand eight hundred and twenty-
seven, at the county aforesaid, the said John Young, and the
said Jacob Shook, in conjunction with a certain David Kemmerer,
who is one of the administrators of all and singular the goods,
835
299 SUPREME COURT [Philadelphia,
[Young v. Shook.]
chattels, and credits which were of the aforesaid John Kemmerer,
deceased, who was in his life co-obligor with the aforesaid Jacob
Shook, in the said writing obligatory submitted themselves and
r*^00l a ^ m& tters in variance between the said parties, "''that
J is to say, by their certain submission in writing, under
their hands and seals, bearing date the day and year aforesaid,
to the arbitration of Lewis Micke, Daniel Brown, and Adam
Shug, as referees indifferently chosen by the said John Young,
David Kemmerer, and Jacob -Shook, to settle all matters in
variance between the said parties, to meet at the house of George
Messinger, innkeeper, of Forks township, on the seventeenth
day of March, then instant. And the said Jacob Shook further
says, that the said referees afterwards, to wit, on the said seven-
teenth day of March, in the year last aforesaid, took upon them-
selves the burden of the said arbitration, and having met on the
day and place before mentioned, and having heard the parties,
their proofs and allegations, and examined the vouchers, and
duly considered the matters in dispute between the said John
Young and Jacob Shook, did make their award in writing, under
their hands, of and concerning the premises, and of and con-
cerning the said writing obligatory, in the declaration mentioned,
and ready to be delivered to the said parties in difference. And
did thereby, then and there, award and find that the said John
Young has no cause of action ; and that the parties should pay
the costs, each one-half, as by the said award bearing date the
day and year last aforesaid, reference being thereunto had, will
more fully appear. And this the said Jacob Shook is ready to
verify. Wherefore he prays judgment, if the said John Young
ought to have and maintain his aforesaid action against him."
The plaintiff craved oyer of the submission and award, which
was granted in h(KC verba :
" John Young vs. David Kammerer, one of the executors of
his father, J. Ke and Jacob Shook.
" Amicable suit and agreed by the partice and refeart to Lewis
Micke, Daniel Brown, and Adam Shuge, as referees chosen by
the Partice to satle all matters in variance between the said
partice, submitted to you to meed at the House of George Mes-
singer, Innkeeper of Forks Township, on the 17th day of March
instance. So agreed the 8th day of March, A. D. 1827, as wit-
ness our Hands and Seals the day and year aforesaid.
"JOHN YOUNG,
"DAVID KEMMERER,
"JACOB SHOOK,
L. S.
'L. s.'
L. S.
" We, the above named referees, having meed on the day
336
March 29, 1833.] OF PENNSYLVANIA.' 300
[Young v. Shook ]
above appointed, and after hearing the partice and there proof
and allocations, and examined the voudshers, and after consiter-
ation we find no case of action and we fourther report that the
partice shall pay the costs Each one-half. Witness our hand
this 17th day of March, Anno Domini, 1827.
"LEWIS MICKE,
"DANIEL BROWN,
"ADAM SHUGE."
*The plaintiff demurred to the special plea, and as- r*qn-i-i
signed the following causes of demurrer, viz. :
" That the award therein referred to, exceeds the submission
in determining the question of costs, which was not warranted
by the submission and agreement of the parties thereto."
" That the agreement, and, in the said second plea, supposed
submission, is not a reference at common law, but an amicable
action instituted before a justice of the peace, and by an agree-
ment of the parties thereto referred, and that the report of
the referees is a nullity, no judgment having been rendered
upon it.
" That in the said supposed submission in the said plea con-
tained, there is a misjoinder of the parties to the action, and
whether it be considered a reference at common law, or an amica-
ble action before the justice, it is equally void, because no action
co.uld be sustained upon the award, and no judgment could be
rendered thereon by the justice.
" That the said supposed submission in the said plea con-
tained, is by John Young, David Kemmerer, and Jacob Shook,
who are not the parties to the present suit.
"That in the title to the said supposed submission, in the
said plea contained, David Kemmerer is represented as one of
the executors of his father, J. K., whereas David Kemmerer
is not executor of his father's estate, but administrator with
Nicholas Kemmerer, who is no party to the said supposed sub-
mission.
" That by the said supposed submission an amicable suit was
instituted before a justice of the peace, by the parties thereto,
and the sum in controversy having exceeded one hundred dol-
lars, it could not be submitted to referees, and an award thus
made is neither a good award under an act of assembly nor at
common law.'
"That the said supposed submission in the said second plea
mentioned, is not truly recited, and also, that the said plea is,
in other respects, uncertain, informal, and insufficient."
The court below gave judgment for the defendants on the
demurrer.
VOL. iv. 22 337
301 SUPREME COUET | Philadelphia,
[Young v. Shook.]
Scott, for the plaintiff in error, cited Alleyn, 5 ; Clapcott v.
Davy, 1 Ld. Rayrn. 612; Bacon v. Dubarry, 1 Salk. 70; 1
Rolle's Ab. 245, 1. 20, 246, 1. 20, 264, 1. 30 ; Blake's Case, 6 Co.
R. 43 ; Behzhoover v. Dorragh, 16 Serg. & Rawle, 329.
Brooke and J. M. Porter, for the defendant in error, cited
Cald. on Arb. 16, 123, 124, 126 ; 1 Saund. on PI. and Ev. 214,
226; 2 Chitty's PI. 120; Peale v. Warner, 1 Saund. R. 324;
Diblee v. Best, 11 John. R. 103; Armstrong v. Hasten, Ib. 189;
Kyd on Awards, 10; 2 Atk. R. 505; 1 Phill. Ev. 305.
The opinion of the court was delivered by
KENNEDY, J. The only question about which there is any
r*^09l difficulty *i n tn i s case * s > whether the submission and
J award pleaded by the defendant, are shown thereby to
have embraced the bond upon which the plaintiff has brought
this action.
A number of reasons have been set forth by the plaintiff as
causes for his demurrer to the plea, but there is nothing in any
of them. The most of them consist of matters of fact de-hors
the record, upon which we can predicate nothing, as they are
entirely foreign to and out of the case. Such as, that the sub-
mission was of 'a suit pending before a justice of the peace.
Now that does not appear to be the case, from the terms of the
submission as set out, nor from the plea, nor any other part of
the record. NihiL habet forum ex scena.
As to the exception, that the arbitrators exceeded the sub-
mission in awarding as to the payment of the costs, I do not
consider it tenable. The submission of all matters in variance
between the parties, was general, and the arbitrators under it,
although there was no mention of the costs therein, had, as I
conceive, a right to award as to them. Strang v. Ferguson, 14
Johns. 161.
As to the exception, that there was a misjoinder of parties to
the submission, and that the parties were not the same there
with the parties to this suit, there is nothing very irregular in
it, or more than might have been expected where, as in this
case, the parties interested in matters about which they dis-
puted, amicably, without the aid of counsel, agreed to submit
all matters in variance between them, to the arbitrament of
men mutually chosen by them for that purpose. Assuming as
a fact, however, for the sake of the argument, that the bond in
suit was the matter in variance which was submitted and arbi-
trated upon, there was certainly none made parties to the sub-
mission and reference, who were not directly interested in
having the matter adjusted and settled. The bond is joint and
338
JfarcA29,1833.] OF PENNSYLVANIA. 302
[Young v. Shook.]
several, and if it had not been paid, or discharged in some
way, the estate of John Kemmerer, the deceased obligor, is
liable for the payment of it, as well as Jacob Shook, the sur-
viving obligor, against whom this suit is brought. In the sub-
mission then, there is John Young, the plaintiff in this action,
of the one side, and Jacob Shook, the defendant, joined by
David Kemmerer, one of the executors, but said to be admin-
istrator, and not executor of the deceased obligor, of the other
side. If David Kemmerer, designating himself as the executor
or administrator, and it is immaterial which for such purpose,
of John Kemmerer, the deceased obligor, chose to join himself
with Jacob Shook, the surviving obligor, in submitting the
dispute which had arisen upon the bond, to judges of their
own choosing, and to make himself jointly responsible with
Jacob Shook for the result, I can perceive no legal objection
to his doing so, nor can I conceive how it is possible it should
avoid, or render the award a nullity, because he did do so.