A letter enclosing a treasury note for transmission, was put into the office, of which the plaintiff was post-master. The defendant said, meaning to charge him with larceny, that “ he had never sent the treasury note from his office, but had stolen it.” At the trial, the defendant offered to prove, that before the words charged in the declaration were spoken, the plaintiff had said, that “ the treasury note never left his office.” He likewise proposed to evince, that after the speaking of the words, the plaintiff affirmed, that “ his brother, Samuel Bailey, was the author, and first promulgator, of the story.” It was not pretended, when the words alleged in the declaration were spoken, by the defendant, that he knew the plaintiff had said the treasury note never left his office; or that the plaintiff had knowledge, when he observed that his brother was the first promulgator of the story, that the defendant had made the declaration of which he complains. The offered testimony was rejected ; and to review this decision, was the object of the present motion.
There can be no reasonable pretence, that the evidence offered by the defendant, amounted to a justification. The admission by the plaintiff, (if it ever was made,) that the treasury note never left his office, falls far short of proving a felonious taking. It would be a wanton and perverse construc*466tion of language, to infer larceny from an expression, which ⅛ fully satisfied, by the supposition of an innocent mistake. It is a well settled rule, that the truth of a charge is not admissible in mitigation of damages. Underwood v. Parks, 2 Stra. 1200. Andrews v. Vanduzer, 11 Johns. Rep. 38. Kennedy v. Gregory, 1 Binn. 85. Shepard v. Merrill, 13 Johns. Rep. 475. Van Ankin v. Westfall, 14 Johns. Rep. 233. It is equally indisputable, that evidence which falls short of a justification, may be competent to mitigate damages ; and that the defendant, on the general issue, may prove, in mitigation of damages, such facts and circumstances as shew a ground of suspicion, not amounting to actual proof of the guilt of the plaintiff. Knobell v. Fuller, Peake’s Evid. 287, 8. append, xcii. So, if any facts exist, which tend to diminish the presumption of malice, they are competent proof. Morris v. Duane, 1 Binn. 90. n. Or, if the fame of a person is disparaged, by there having been reports in the neighbourhood, that he had been guilty of practices similar to those imputed to him, it is admissible to shew this in evidence. — v. Moor, 1 Mau. & Selw. 285.
But these various principles are in no respect available to the defendant’s benefit.
In the first place, the mere admission that the treasury note had never left the plaintiff’s office, is, of itself, insufficient to generate even a suspicion, that he had feloniously taken it. For,although the facts proved, need not establish the truth of the defendant’s charge, they certainly must amount to something more than vague conjecture, and must at least establish such probability as would influence the opinion of a man of sound mind.
The malice of the defendant would not, in the least, be diminished, by the facts, which he offered to prove, because they were unknown to him, at the time of the slander complained of.
And in respect of the plaintiff’s assertion, that his brother was the first promulgator of the scandalous story, this, unaccompanied by any other fact or circumstance, could have had no possible effect on the damages. If there had been a circulation of the slander to an extent so considerable as to have blemished the plaintiff’s character, before the defendant commenced the propagation of the scandalous imputations alleged, I should be of opinion that proof of this fact would *467be admissible. But nothing of this kind, appears on the defendant’s motion. A declaration made by the plaintiff, that his brother had calumniated him, by having used the same expression as the defendant did, would be of no imaginable importance in the estimate of damages, unless there had been offered in evidence other facts and circumstances, from which it might be reasonably inferred, that this calumny had injured the plaintiff’s reputation.
The defendant must render it reasonably apparent, that justice has not been done him, and to such an extent, that in the exercise of a sound discretion, it is fit there should be a new trial. This, in my judgment, he has not done; and, therefore, his motion must be denied.
The other Judges were of the same opinion.New trial not to be granted.