
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1806.
    Easterwood v. Quin.
    In slander, if defendant plead not guilty, he may be permitted to prove that he only repeated the defamatory words, which were first uttered by another, in order to extenuate the damages. If he only reports what another has said, without any injurious motive or intention as regards the plaintiff, such evidence will goto support the defence of not guilty; but if he publishes slanderous words, and at the same time declares the author of the slander, (with a slanderous intention,) or can prove that the slander was first published by another, and that he only repeated or republished the same, this evidence will be admitted in mitigation.
    Motion for a new trial. Action on the case for words, &c. Tried in Union district, before Bay, J. It was proved that defendant had said of t.he plaintiff, that he believed the plaintiff had stolen his corn, because one Dees had told him so, and he intended to prosecute plaintiff for the theft. It was further proved, that defendant had prosecuted plaintiff, and that the grand jury had not found a bill. Defendant, in cross-examining the plaintiff’s witnesses, wished to prove by them that Dees had told the defendant that the plaintiff had stolen his corn, but Judge Bay would not suffer such evidence to be given, as the defendant had not pleaded this matter specially.
    The jury found for the plaintiff.
    The motion in this court was to set aside the verdict, on the ground that the judge did wrong in refusing to allow the defendant to go into evidence to prove that Dees had told him, the plaintiff had stolen his corn, in mitigation of damages.
    Nott, in support of the motion.
    The general issue denies the speaking from malice. The cause and occasion of speaking the words may be shewn to do away the imputation of malice. 1 D« and E. 110. Peak’s cases, 4. Esp. Dig. 517. 7 D. and E. 17. At any rate, the evidence ought to have been admitted in extenuátion of damages.
    Gist.
    This defence amounts to a justification, if to operate at all, and a justification must be pleaded. To repeat a slander as unjustifiable as to originate the report. A man shall not be permitted to shelter himself behind another, who perhaps has only repeated a slander first published by himself. Sayer, 265. The truth of words cannot be given in evidence on the general issue. Bulb N.P.9- .. "
    
      
      Note. See 1 Bin. 85, Kennedy v. Gregory. Defendant said "it is so,” or “ they say it is so;” in answer to a slanderous insinuation, he was allowed to give evidence in mitigation, that a person told him what he related. Semble. Slanderous words spoken in reference, defendant may, in mitigation, shew that the slander was communicated to him by another. See 7 T. R. 17. Plea in justification that another told him, must mention the author. See 12 Co. 134. Sir. 1200. 1 Bin. 90, Morris v. Duane. Defendant sued for a libel, allowed to prove he got the paper from papers in his predecessor’s office in mitigation. 2 Peake’s Evidence 287. In mitigation may prove a ground of suspicion not amounting to actual proof of plaintiff’s guilt. See 10 Johns. Depends on the quo animo.
    
   28th April, 1806,

Teezevakt, J.,

delivered the opinion of the whole court. The testimony which was offered and refused in this case was not intended in justification, and it could not prove the plea of not guilty, which goes to the speaking, and not merely to the cause or occasion of speaking, if the evidence could properly justify the party in speaking the words, yet he could not have the benefit of such evidence in justification on the general issue; but he was clearly infilled to the benefit of it in mitigation of damages. A man who wantonly or inconsiderately repeats a defamatory tale fabricated by another, is certainly liable to answer in damages for assisting in the propagation of the slander ; but he is not answerable in the same degree as the author of the slander, unless it should appear he was actuated by malice, and an intention to defame. The cause and manner of speaking are in all cases proper to be given in evidence, in order to guide the jury in the assessment of damages. So, if a man hears defamatory words spoken of another, and repeats them, it is proper to ascertain whether he has merely repeated them from hearing another person speak them, or whether he has only feigned to have heard the slander, when in truth he never did hear it. It shall be presumed that he did not hear the slander from another, and the propagator of the slander is bound to shew, in mitigation of his wrongful conduct, that he did hear it from another, and is not the author of it himself. As the, jury would be otherwise authorized to regard him as the author of the slander, there, fore he ought to be allowed to shew that he is not so, and to shew that he only repeated what he heard. And all the circumstances of hearing the slander first published, and the manner of repeating it, ought to be duly considered by the jury/in mitigation, or in aggravation of the damages.

Motion granted.  