
    John Miller vs. Daniel Kerr.
    1; seems, a person may justify the speaking of actionable words, if he named at the time of speaking them, of whom he heard them, and if in truth he did hear them; but this rale is not intended to protect a defendant in tbe gratification of his malice, by taking shelter under a falsehood published by another; but it is a justification, only so far as it is evidence of the want of malice.
    is no justification to say one has stolen an article, and that fie could prove ti ai B, said so.
    
      ‘¡The same words, whether spoken before or after action brought, are admissible in ■evidence.
    TRIED at York, August, Special Term, 1822.
    
    Slander for the words, “ he, (the plaintiff,) stole a cart lire and gets his living by stealing.” — “He is a thief and will swear a lie.” These words variously modified were the basis of all the counts in the declaration. The defendant pleaded the general issue, and a special justification, that he had heard the words fr'om Joseph Simpson, and that at. the time they were published, he also stated that* he had heard them from Joseph Simpson. The plaintiff proved the words laid by one witness, without any qualification ; and several others who were present at the same conversation, proved that the defendant spoke the words affirmatively, but superadded that he could prove that Joseph Simpson had said so ; and several of the witnesses sworn by the defendant, and who were present at the same conversation, proved the publication of the words with the foregoing.qualification.
    Publication of the same words spoken, after action brought, was admitted in evidence.
    The defendant proved by several witnesses that Joseph Simpson had repeatedly said that the plaintiff and his brother, stole a cart tire, and that it was commonly and publicly talked of at the time, which was twelve or fourteen years ago.
    The jury found for the plaintiff $ 500 damages.
    The defendant moved for a new trial on the following grounds:
    1st. Because the. same words spoken after action brought wore inadmissible.
    
      2nd. Misdirection of the presiding judge'in chai’ging the jury that proof that the defendant gave his author at the time of publishing the words, did not support the justification pleaded, when the words were spoken affirmatively, or in other words, when the defendant affirmed that the lact was so, on the authority of his author.
    3rd, Because the damages were excessive.
   Mr. Justice Johnson

delivered the opinion of the court:

Departing from the usual order, I will first consider the £nd. ground.

The general rule is, that it is no justification of slander-©us words, that the defendant heard them from another ; for every one is answerable for the slander which he propagates, (2 Esp. Dig. 106-517. J The case of Davis vs. Lewis, (1 Term. Rep. 17,) has carved out an exception to the rule. In that case, the court says the defendant may justify, if, at the time of speaking the words he names him, from whom he heard them, and if in truth, he did hear them -from another. The reason given is, that by giving the name of the original slanderer, the-plaintiff has a direct remedy against the original wrongdoer. But the case of Martland vs. Goldney, (2 East. 246,) has given a limitation to the operation of this exception. To support the justification, the defendant must use the words of the original slanderer, so far as rotates to the gist ®f the charge against the plaintiff. It follows, therefore, that the exception never was intentend to protect a defendant in the gratification of his malice,''by taking shelter under a falsehood published by another, but to protect one, who, without malice and for purpose necessary to the very existence of society, inquires into and investigates the characters of men ; and the true meaning of the exception, is, that it is a justification only so far as it is evidence of the want of malice; as when one, without any affirmation of the truth of the fact, states what he has heard from another, then the presumption of malice, arising from the publication of the slanderous words, is repelled by the occasion and manner of speaking ; but it Will not hold good when, from the circumstances, it is manifest that the defendant used the words with an intention to defame the plaintiff, although he gave the very words, and the name of the author. As in this case, when the defendant took upon himself to affirm the truth of the words, then he is responsible for their truth upon whatever authority. they may have been spoken. By so doing, 'he superadds his own authority and influence, and inflicts a new injury, for which he alone is responsible.

In this case, the defendants own witness,' independen» of those adduced by the plaintiff, stated that he had affirmed that the plaintiff had stolen a cart tire, but added that he could prove that Joseph Simpson had said so. ' He did then give his sanction and the influence of his own affir - mation to the propagation of a slander, and he is responsible for the consequences.

I shall next proceed to consider the first ground of the motion.

Malice is the very gist of the action of slander, and it follows of necessity, that all the circumstances which go to prove it, or from which it may be inferred, necessarily enter into it. It. may', and is frequently implied from the words spoken, and this implication is strengthened or repelled by the occasion and manner of speaking, and all the variety of circumstances which could enter,into such a thing; and there is, perhaps, no circumstance which more strongly marks the character as to the quo animo, than their frequent repetition. It is the evidence of a malicious heart brooding over its victim. On this principle, it was held in the case of Challer v. Barrel, (Peake, N. P. 25,) that words spoken subsequently to those laid in the declaration were admissible. Another case decided on the circuit, in this state, is recollected by my brother Gantt, which aecords with this principle, in which, when the case was called for trial, when the charge was that the plaintiff was a hog thief, Mr. Justice Grimke, our late senior associate, permitted evidence to go to the jury, that the defendant said to the plaintff, when preparing for the trial, “I will make the pigs squeal in your ears.” It i& clear, therefore, that the same words, whether spoken before or after action brought, are admissible.

The third and last ground involves no principle.' The court do not see in the amount of the verdict, any thing like that excess and outrage of public feeling which would justify their interposing.

Clendinen, for the motion,

Williams, contra.

The motion is refused.  