mondson by the plaintiff to Bell and Crawford, and the deed of trust of the same date, were founded on a corrupt and usurious agreement or not; and if upon a usurious agreement, what was the amount of the usurious premium reserved on said contract. Upon the trial of this issue the jury found that the assignment of the bond and the deed of trust were founded in a usurious agreement; and that the usurious premium amounted to the difference between the sum of 494 dollars 25 cents and the sum of 529 dollars with interest thereon from the 8th of May 1838 to the 31st of December 1842, the date of the deed of trust, subject to a credit of 15 dollars, as of the 1st of October 1842.

The cause came on to be finally heard at the June term 1847, when the court approved the verdict of the jury; and being of opinion that the measure of relief consequent on the verdict, upon the authority of Marks v. Morris, was the annulment of the trust deed and assignment, and forfeiture by the defendants of the entire debt, perpetuated the injunction with costs. From this decree Bell and Crawford applied to this court for an appeal, which was allowed.

The cause was argued by Fultz, for the appellants, and Michie, for the appellee, but as the authorities are all cited in the case of the Bank of Washington v. Arthur, 3 Grattan 173, it cannot be necessary to refer to them here.

BALDWIN, J. delivered the opinion of the court.

The court is of opinion that there is no error in so much of the decree of the Circuit court as approves the verdict of the jury, ascertaining that the assignment and trust deed in the bill and proceedings mentioned were founded in a corrupt and usurious agreement and contract between the appellants and the appellee, and ascertaining the amount of usurious premium reserved on

1851.

July Term.

Bell & al.

V.

Calhoun.

1851.

July

Term.

V.

Calhoun.

said agreement and contract; but that the said decree is erroneous in holding that the proper measure of relief Bell & al. consequent upon the verdict of the jury is the forfeiture by the appellants of the entire debt, and in wholly perpetuating the injunction which had been granted to the appellee to restrain proceedings under said trust deed; this court being of opinion that the proper measure of relief to the appellee is a credit for the amount of the usurious premium found by the verdict of the jury, against the principal money and interest secured by said assignment and trust deed, and a further credit against the same for the sum of 15 dollars mentioned in said verdict; and that the said assignment and trust deed ought to stand as securities for the balance of the principal money and interest thereby secured, and payment thereof enforced, if necessary, by a sale, under the direction of the court, of the property conveyed by said trust deed. It is therefore adjudged, ordered and decreed, that so much of the said decree as is above declared to be erroneous be reversed and annulled, and the residue thereof affirmed, with costs to appellants. And the cause is remanded to the Circuit court, to be proceeded in according to the principles above declared.

DECREE REVERSED.

Lewisburg.

BOURLAND . EIDSON.

(Absent Cabell, P.)

August 23d.

1. It is no defence in an action of slander, even in mitigation of damages, that previous to the speaking the slanderous words laid in the declaration, the plaintiff had used equally offensive and insulting words towards the defendant.

2. In an action of slander, under the plea of not guilty, the defendant may, in mitigation of damages, prove any facts as to the conduct of the plaintiff in relation to the transaction which was the occasion of the slanderous language complained of, which tend to excuse him for uttering the words, provided the facts do not prove or tend to prove the truth of the charge complained of, but in fact relieve the plaintiff from the imputation involved in it.

And on the

This was an action of slander in the Circuit court of Augusta county, brought by William Eidson against James Bourland. The declaration contained but one count, in which the slander alleged to have been uttered was stated to be, "that the plaintiff was a rogue, and had stolen from the defendant an order on Stofer, and that the plaintiff had sworn to a lie in court." The defendant pleaded "not guilty." trial of the cause he offered to prove, in mitigation of damages, that at and about the time of speaking the words set out in the declaration, the plaintiff and defendant were engaged in an angry and exciting controversy in the court in which this case was then on trial, and that they were both in the habit of using towards and concerning each other violent and abusive language; and that about that time, although not at the time when the words set out in the declaration were spoken, the plaintiff had used to and about the defendant language

i851. July Term.

1851.

July Term.

equally offensive and insulting as that set out in the declaration. But the court, being of opinion that such Bourland evidence was inadmissible for any purpose, refused to Eidson. admit the evidence: And the defendant excepted.

V.

In the further progress of the trial, the defendant, as to the words set out in the declaration, as imputing to the plaintiff a theft of an order on Stofer, offered evidence to prove the circumstances under which the plaintiff became possessed of the order on Stofer, and his whole conduct in relation thereto; and to shew that, although not justifying the speaking of the words as importing theft, these circumstances and the conduct of the plaintiff were in themselves highly improper, and such as were calculated justly to excite the defendant and arouse his suspicions. But the court being of opinion that such evidence was inadmissible under the plea of "not guilty," which was the only plea in the cause, refused to admit the evidence: And the defendant again excepted. This exception does not state that the plaintiff had introduced any evidence upon the charge of theft in stealing the order on Stofer, or indeed that he had introduced any evidence, unless as that may be inferred from what is herein before stated. The jury found a verdict in favour of Eidson for 900 dollars: upon which the court rendered a judgment. Whereupon Bourland applied to this court for a supersedeas, which was awarded.

Hugh Sheffey and Michie, for the appellant, insisted: 1st. That the evidence referred to in the first bill of exceptions should have been admitted, not for the purpose of offsetting one slander by another, but for the purpose of shewing the provocation under which the appellant spoke the words attributed to him. And they referred to Watts v. Fraser, 32 Eng. C. L. R. 544; Judge v. Berkeley, Id. 545, in note; Tarpley v. Blaby, Id. 555; Fraser v. Berkeley, Id. 658.

H

2d. That the evidence referred to in the second bill of exceptions should have been admitted. They said that if the bill of exceptions was improperly taken, the court for that reason would reverse the judgment and send the cause back for a new trial. Brooke v. Young, 3 Rand. 106; Raines v. Philips' ex'or, 1 Leigh 483; Thompson v. Cummins, 2 Id. 321. But that the court would construe the exceptions so as to get at the merits. Trimyer v. Pollard, 5 Gratt. 460.

They insisted further that whilst the defendant would not be allowed, under the plea of "not guilty," to prove the charge, yet that it was admissible to prove the circumstances which justly excited the suspicions of the defendant, together with other circumstances not then known to the defendant, which shewed that the plaintiff was not guilty of the offence imputed to him. And they referred to Leicester v. Walter, 2 Camp. R. 251; East v. Chapman, 12 Eng. C. L. R. 268; Rigden v. Wolcott, 6 Gill & John. 413; Minesinger v. Kerr, 9 Penn. R. 312; Gilman v. Lowell, 8 Wend. R. 573; Updegrove v. Zimmerman, 13 Penn. R. 619; Alderman v. French, 1 Pick R. 1; Larned v. Buffinton, 3 Mass. R. 546; Van Ankin v. Westfall, 14 John. R. 233; Bradley v. Heath, 12 Pick. R. 163; Williams v. Miner, 18 Conn. R. 464; Cook on Defam. 286; 53 Law Libr., citing The King v. Halpin, 17 Eng. C. L. R. 332; Knobell v. Fuller, Peake's Evi. 287, 288, Appendix 92; recognized in Bailey v. Hyde, 3 Conn. R. 463; in Leicester v. Walter, 2 Camp. R. 251; in East v. Chapman, 12 Eng. C. L. R. 268, and in Buford v. McLuny, 1 Nott & McC. 268; Hart v. Reed, 1 B. Munroe's R. 166; Eagan v. Gantt, 1 McMul. R. 468; Cooper v. Barber, 24 Wend. R. 105; Petrie v. Rose, 5 Watts & Serg. 364.

Fultz, for the appellee.

On the first point said the law did not authorize a set

1851. July Term.

Bourland

V.

Eidson.