Rumsey v. Lovell. rea," applied only to criminal cases. The other judges, however, overruled this doctrine, and decided that the false representation, to be actionable, must be made "malo animo;" and that there must be something more than misapprehension and mistake. In this case, Grose, J., again expressed his dissent to the case of Pasley v. Freeman: he said he was unable to comprehend the grounds on which that case was decided. In Tapp v. Lee, (3 Bos. and Puller, 367,) the question came before the common pleas; and the case of Pasley v. Freeman, was there recognized, Lord Alvanly observing, that after the determination which had taken place, he was bound to hold that such an action would lie; though he much wished the legislature would interfere to restrain such actions, unless the representations were reduced to writing. Chambre. J., in the same case, concurred with Lord Alvanly, in wishing the legislature would interfere, but at the same time remarked, that it was true the action was modern in practice, but that if there had been no decision on the subject, he would think it founded on solid legal principles. In Evans v. Bucknell, (6 Ves. Jr. 186,) Lord Chancellor Eldon expresses his decided conviction against these cases. His language is as follows: "As to the case of Pasley v. Freeman, it is almost improper to say any thing at this day, having a tendency to shake it. I know that Mr. J. Grose, very lately, held the same opinion, as he did at the time of the judgment. The doctrine in that case is, in practice and experience, most dangerous. It will become necessary, in order to protect men from the consequences, that the statute of frauds should be applied to that case. I have always said, when I was chief justice, that I so far doubted the principles of that case, as to make it not unfit to offer, as I always did, to the counsel, that a special verdict should be taken; but that offer was so uniformly rejected, that I supposed I was under some error on the subject. I, therefore, could only point out to the jury the danger of finding a verdict upon such principles, and I succeeded in impressing them, with a sense of that danger, so far, that the plaintiff, in such actions, very seldom obtained a verdict." Lord Chancellor Erskine, however, in the case of Clifford v. Brook, (13 Ves. Jr., 132,) holds the opposite opinion. In speaking of the case of Pasley v. Freeman, he says: "With regard to that case, a considerable difference of opinion prevails, and some of the most correct judgments appear, to me, to have been surprised. My opinion, on this species of action, does not concur with that of Lord Eldon, as expressed in the case of Evans v. Bucknell, which opinion, against that action, I know his lordship constantly held in the court of common pleas. The mistake of those who invade the principle of that action consists in this: the proposition is. not, that if a man, asked whether a third person may be trusted, answers, "you may trust him, he is a very honest man and worthy of trust;" an action will lie, if he proves Rumsey v. Lovell. otherwise: there must be the knowledge at the time, that is the sound principle; that the defendant knowing that person to be dishonest, insolvent and unworthy of truth, made the representation. The case of Pasley v. Freeman, stands upon the clearest principles of jurisprudence, and has no connection with the statute of frauds. This question came before the supreme court of this state, collaterally in the case of Ward v. Centre, (3 Johns. 280,) but received no decision from the court. Mr. Justice Van Ness, seems there, however, to hint his disapprobation of the case of Pasley v. Freeman. The case of Pasley v. Freeman, he says, seems to have been taken for law; but it never has, to my knowledge, received the sanction of this court. That the principles, on which that decision was made, have been carried far enough, has been admitted, and that this is an action not to be encouraged so long as the provisions of the statute of frauds are considered salutary, I am fully persuaded. In the case, however, of Upton v. Vail, (6 Johns. 181.) the case of Pasley v. Freeman was recognized and sanctioned in the supreme court. One of the points made by the defendant's counsel in that case was, that this action would not lie, without a memorandum in writing. Kent, C. J., in pronouncing the opinion of the court, says, "In relation to the case of Pasley v. Freeman, I have carefully examined the reasoning of the judges in that case, and in the subsequent cases, and I profess my approbation of the doctrine on which it was decided. The case was not decided on any new ground; but upon the application of a principle of natural justice, long recognized in the law, that fraud or deceit, accompanied with damages, is a good cause of action. The only plausible objection to it is, that in its application to this case, it comes within the mischief which gave rise to the statute of frauds, and that therefore, the representation ought to be in writing. But this, I apprehend, is an objection arising from policy and expediency; for it is certain, that the statute of frauds, as it now stands, has nothing to do with the case." The same question came again before the court in Young v. Covert, (8 Johns. 24,) and the court there held the same doctrine, refusing, however, to extend the case, and confining the action to cases of actual fraud, and declaring that the simple fact of false representation, unconnected with fraudulent design, is not sufficient. The rule, in Pasley v. Freeman, is applicable also to the case of a fraudulent concealment. Eyre v. Durnford, 1 East, 317. From the cases, therefore, above referred to, it follows, that the action for a false representation of character, upon the principle of Pasley v. Freeman, is sustainable in this state, although it may be doubted, whether the reasoning of Grose, J., in that case, as to its being a mere nude assertion, which the opposite party might inquire into, and therefore, not at all the subject of the old writ of deceit, has ever received a satisfactory answer. Vide 7 Cr. 69. Rumsey v. Lovell. It has been correctly observed, that the law of the case of Pasley v. Freeman; has been supported, in England, only by a constant struggle, and it is, therefore, not at all surprising that the same uneasiness, under the law of that case, should have been infused into the bar, on this side of the Atlantic. Hence, we find that case again questioned in the supreme court, in 1831, in the case of Allen v. Addington, 7 Wend. 9. The court, however, again recognized the rule as laid down, by chief justice Kent, in Upton v. Vail, and the defendant appealed to the court for the correction of errors. The principle established in Pasley v. Freeman, thereupon, came, for the first time, under the consideration of the court, in the last resort, in the year 1833, and was, in that tribunal, fully sustained and applied to a case of fraudulent suppressio veri. Thus carrying the doctrine as far as it had been carried by a series of cases in England. Addington v. Allen, 11 Wend. 374. The controversy on this subject, in the English courts, resulted in the statute of G. 4, ch. 14, sec. 6, which provides that no action shall be brought, whereby to charge any person upon, or by reason of any representation or assurance, made or given, concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose, that such other person may obtain credit, money or goods, unless such representation or assurance be made in writing, signed by the party to be charged therewith. Else v. Ferris. ELSE against FERRIS. Under the gen "He will be a bankrupt in six months," actionable per se. eral issue, the truth of words cannot be given in evidence in mitigation. That words were spoken in heat, goes in mitigation only. THIS was an action of slander, for saying of the plaintiff, "he will be a bankrupt in six months." No special damage was alleged in the declaration. Plea, the general issue. The defendant proved, in bar, that the words were spoken in heat. VAN NESS, J. The words are, unquestionably, actionable per se; (1) their being spoken in heat, can only go in mitigation.(2) (1) If one says of a merchant, “He is a bankruptly knave," or "he will be a bankrupt within two days," or such like insinuations, these words are actionable. 4 Co. 19, a Vide Cro. Jac. 578; Starkie on Slander, 134; 5 Johns. 476. (2) A different opinion has been entertained by some lawyers and judges, (3 Mass. 553,) but certainly without foundation; no case can be found where the fact of the words having been spoken in heat, has been allowed to be received in bar. Words spoken in the warmth of passion, may sometimes be less injurious to the character of the party slandered, than when used with a cool deliberate purpose to defame, but certainly can never, for that reason, be deemed so far harmless, as to be allowed to pass without legal animadversion. On this subject, Mr. Selwyn very correctly remarks, that, actions for words should not be brought on slight and trivial occasions, and when the words are merely words of heat, anger, or passion, spoken suddenly, or without deliberation, such actions should be discountenanced; but that at Else v. Ferris. The defendant, in mitigation, offered to prove the truth of the expressions by some equivocal facts. VAN NESS, J. Under the general issue, the truth of words can never be given in evidence in mitigation of damages.(3) C. Bogert, for the plaintiff. Bogardus, for the defendant. the same time it has been truly said, by Wray, C. J., that unless the party, injured by false and malicious scandal, had a remedy at law, it would be a verbis ad verbera, and the consequences might be fatal. 2 Selwyn's N. P., 1155. (3) The case of Underwood v. Parks, (2 Str. 1200; 17 G. 2,) is the leading case on this subject. There, in an action for words, the defendant pleaded not guilty, and offered to prove the words to be true, in mitigation of damages, which the chief justice (Lee) refused to permit, saying, that at a meeting of all the judges, upon a case that arose at the common pleas, a large majority of them had determined not to allow it for the future, but that it should be pleaded, whereby the plaintiff might be prepared to defend himself as well as to prove the speaking of the words. That this was now a general rule amongst them all, which no judge would think himself at liberty to depart from; and that it extended to all sorts of words, and not barely to such as imported "a charge of felony." Previous to this decision, the opinions of the judges seem very much to have fluctuated. Six years before this, there had been a meeting of the twelve judges on this same subject; (Smith v. Richardson, Willes, 20; 11 G. 2;) and they were unanimously of opinion, that when the words imported a general felony, as "thou art a thief," or 66 thou stolest a horse," the defendant ought not to be allowed, on the general issue, to give the truth of the fact in evidence, in mitigation of damages; four of the judges, however, were of opinion, that such evidence was admissible, when the words imported a particular felony. But in the case of Underwood v. Parks, the judges were unanimously of opinion, that the same rule extended to all cases of slander, whether the words charged a felony or not. In the case of Andrews v. Van Duzen, (11 Johns, 33,) the supreme court recognized the rule mentioned as the ground of the |