The record of a verdict and judgment, is proper evidence on the trial of an action between the same parties, whenever it establishes any fact, material to the issue on trial: but if otherwise, it must always be rejected, on the ground of irrelevancy.

This is an action for slander, brought by Walson against Churchill, alleging, that he had charged him with being a thief, a cheat in his professional business ; and also, among other things, declared that he had stolen a spar belonging to the defendant.

The parties were at issue on the plea of not guilty. The defendant offered in evidence a record of a verdict and judgment in a former action of trespass, in which he recover' ed against Watson 175 dollars and his costs, for his taking by force, and converting to his own use, a stick of timber, suitable for a mast, the property of Churchill, and of the value of 48 dollars, maliciously, and with intent to obstruct and prevent him from completing a vessel he was building. This record establishes, as between the parties, the fact of the trespass committed, and of the malicious intent.

It cannot be pretended, that proof of a trespass can he any justification for a slander, in charging the trespasser with theft; but it is urged, that this is admissible evidence in -mitigation of damages; and that the party injured by a ma-*259lieious trespass on his property, is less criminal, than in case he had been guilty of the slander, from mere malice, without provocation.

The qnestion is, how far this consideration can avail in ¡¡litigation of damages, to be recovered by the party slandered ? It certainly docs not lessen the injury his character may have suffered by the slander.

It is true, that when a person receives a provocation, and immediately retorts by defamatory language, the whole which passed at the time, is admissible evidence, as well because the provocation is a part of the same transaction, as because it may shew, that the slanderous expressions were merely words of heat and passion. But this rule can apply to that ease only. In all other instances of previous injury, either the facts complained of do, or do not, lay a foundation for an action at law, by the party aggrieved. If they lay no foundation for an action, they are such as the law considers ;⅛ no ground of recovery in damages, and of consequence, ihey can be no ground of consideration or set-off, in deduction from the damages recoverable in a suit by the other party'. But if they lay a foundation for an action, the allowance of any sum by a jury, in mitigation of damages, can he no bar ; for the jury have no power of making a set-off.

No case can more clearly shew the absurdity of adopting a different principle, than the present. Churchill has recovered 175 dollars in damages, for a trespass in taking a spar of the value of 48 dollars only, at his own estimation. By the consideration of the court and jury, he has received a full compensation for all the injury he sustained ; and now claims a second compensation for the same trespass, by alleging the same facts in mitigation of the damages, to which the plaintiff is entitled in his action for slander.

The record was irrelevant, and improper to be admitted in evidence; the decision of the court was conformable to law ; and no new trial ought to be granted.

New trial not to be granted.