— The motion for a new trial is not “upon evidence, as reported by the presiding Justice,” and is unsupported upon every ground assumed. (Statute 1852, c. *438246, § 8.) So much of it, as is founded upon the alleged newly discovered evidence, was withdrawn at the argument, and has not been presented for consideration.
The fact, that the defendant retracted the slanderous charge, in the presence of his own family, which he offered to prove by his son-in-law, was not of such character as to render it admissible in mitigation of damages. It was not made in public, or in a manner to qualify the slander previously published; nor does it appear that the retraction was ever communicated to the plaintiff, or to any person who had been apprized of the slander. It was. not, in any just sense, a recantation or withdrawal of the calumnious-charge, and the evidence offered was properly excluded. 2 Greenl. Ev. § 275; Hotchkiss v. Oliphant, 2 Hill, 516.
If the plaintiff, or the officer with him at the time, unlawfully laid hands upon the defendant, or unlawfully attempted to search his person for a key, as the requests assume, such acts would not justify a slanderous charge. Nor would they, as a matter of law, be “ sufficient to cause the defendant to suppose that the plaintiff may have taken- his money, and thus the speaking be excused.” The requested instructions were therefore properly withheld; and those given were favorable to the defendant, and are not subject to his exceptions. Exceptions and motion overruled.
Judgment on the verdict.
Shepley, C. J., and Tenney, J., concurred.