
    * Moses Wolcott versus Calvin Hall.
    When, in an action for slander, the defendant pleads the truth of the words spoken in justification, he shall not be permitted to give evidence of common report that the plaintiff had been guilty of the crime which the words import, nor thaA and B had charged him with the commission of the crime.
    . This was an action of the case against the defendant for slandering the plaintiff, by saying of him, at various times, and before different citizens, “ He has stolen, and I can prove it. He is a thief; ’ and by “ falsely and maliciously, openly and publicly, charging the plaintiff with the crime of theft.”
    The defendant pleads in bar, that the plaintiff stole a barrel of scraps belonging to the defendant, two hundred weight of cheese belonging to one Russel Brown, and a cord and a half of wood belonging to one Eli Green; and thereupon justifies the speaking of the words, and the making the charge contained in the plaintiff’s declaration.
    The plaintiff replies that the defendant spoke the words and made the charge of his own wrong, and without any such cause as he has alleged in his plea, and tenders an issue to the country, which he has joined.
    Upon the trial of the issue before Sedgwick, J., the defendant offered evidence in mitigation of damages, that, before the words alleged in the declaration were spoken by him, it had been reported in the neighborhood of the parties, that the plaintiff was guilty of the crime of theft; and particularly that Russel Brown, mentioned in the defendant’s plea, had charged the plaintiff with stealing cheese ; and that Eli Green, mentioned in the plea, had charged the plaintiff with stealing wood, as alleged in the plea ; which evidence was rejected by the judge ; and the jury returned their verdict, that the defendant spoke and published the words, and made the charge of and concerning the plaintiff, in the declaration mentioned, of his own wrong, and without any such cause as in the defendant’s plea is alleged ; and they assessed the plaintiff’s damages at 800 dollars. The judge certifies that, if his rejection of the evidence was right, the verdict ought to stand ; otherwise to be set aside, and a new trial granted.
    The action stood over upon the defendant’s motion [ * 515 J for a * new trial, because the judge improperly rejected evidence. And now H. Sedgwick, in support of the motion, contended that whatever cannot be pleaded, may be given in evidence in mitigation of damages. The evidence offered in the present case was pertinent, as it went to show that the defendant had cause to believe the words when he uttered them, and his relying exclusively on his plea of justification shows that he believed them at the time of the plea pleaded, and even at the time of the trial. This would certainly have a direct tendency to lessen the presumption of malice, which has frequently been called the gist of the action. If the plaintiff, in order to aggravate the damages, might have shown circumstances which proved that the defendant knew the words to be false, the defendant ought to be allowed to show any facts, whence it might appear that he thought he spoke the truth. 
    
    The plaintiff’s injury from the slander is always taken into consideration in measuring his damages. But the plaintiff in this case had sustained almost all the injury he could suffer before the defendant spoke the words. Yet the defendant was precluded from showing this, and is consequently made to atone for injuries received from others, who had published the report before he repeated it.
    If A say that B called C a traitor, to an action brought by C against A for this, A may plead that B did call C a traitor. The reasons must be, that, as he told no untruth, malice shall not be presumed ; and, in giving his authority, he furnished the plaintiff a legal remedy against the original propagator of the slander; and both these reasons apply to the point before the Court in the case at bar.
    No man has a right to more than one satisfaction for the same injury. If, then, the plaintiff recover of the defendant compensation for the whole injury he has sustained by reason of these reports, he may go on to prosecute every person who has given currency to them, and thus may receive ten, or perhaps a hundred fold the damage he has sustained.
    *At the common law, no words are actionable but [*516] such as subject the party of whom they are spoken to danger of indictment, or at least to some loss in his trade or profession. In this case, the ground of the action is the danger of an indictment. This danger arises principally from the authors of the slander ; they being the owners of the goods suggested to have been stolen, the presumption is, that they were most interested, and most likely to know the facts. They would, therefore, be the most probable witnesses in support of a prosecution, and very little of the plaintiff’s danger could arise from what the defendant has said. 
    
    
      Dewey, for the plaintiff,
    observed that the defendant does not deny the speaking the words charged, but attempts to justify himself by pleading that the words were true. Failing in the proof of this allegation, he would show, in order to mitigate the damages to which he finds himself liable, that others have spread false reports to the plaintiff’s injury, and that he had barely lent them a helping hand. It is true that, under the general issue, when the speaking the words is proved, the defendant may yet show, in order to reduce the damages, that they were not spoken maliciously. But when he proves his malice by spreading the slanders on the record, it is absurd for him afterwards to resort to evidence of this extremely loose kind, to show that he was not influenced by malice.
    If the defendant had said only that A B had reported the slanderous tale, he would have had a good defence, because he would furnish the plaintiff with an action against the original author ; and this was Northampton's case, cited for the defendant. But when the defendant made the charges, without naming his author, or speaking of them as a vulgar report, he is chargeable with all the consequences. To admit such matter in evidence under this plea in bar, would be to deprive the plaintiff of his just remedy ; and, however false the slanders are, the effect would be to disgrace [ *517 J him by a verdict for trifling damages. *There is not a dictum of law in the books in favor of the admission of such evidence under the general issue; much less is it proper under such a justification as this. On the contrary, it is uniformly laid down, that every man is to be answerable for the slander he utters, and that common fame is no justification or excuse. 
    
    The English authorities cited in support of the motion have no application to the present case. They are all on the general issue, and prove nothing more, than that the defendant may give the general bad character of the plaintiff in mitigation of damages.
    Hulbert, in reply. If the evidence offered and rejected by the judge had a natural tendency to induce the jury to lessen the damages, it ought, on every principle, to have been admitted. That such would have been its tendency, is apparent, not only from the purport of the evidence itself, but also from the opposition made to its admission on the part of the plaintiff. That such ought to be its tendency, cannot be denied, if it is acknowledged that to repeat a slander one finds in the mouth of every one, displays less malig nity, and has a less injurious effect on the object of it, than to originate the same slander without foundation.
    This is a distinction made by all writers on morals. There is a difference, in every view important, between malicious and inconsiderate slander, and which applies to the common sense of mankind ; and juries always are, and ought to be, influenced by it in measuring the damages in actions of this kind. The defendant acted inconsiderately, but he denies that he acted maliciously, and he asks permission to show this to the jury.
    The plaintiff in this class of actions is always permitted to show in evidence circumstances which prove an aggravated degree of malice, in order to aggravate the damages ; what sound reason can then be given, why the defendant should not be allowed to give evidence of facts, which go to extenuate the presumption of malice, in order to lessen the damages ?
    *The opinion of the Court was delivered by [*518 ]
    
      
       2 East's Rep. 426, Maitland & Al. vs. Goldney. — 1 Lev. 82. — 12 Co. 134, Northampton's Case.
      
    
    
      
       See Vin. Abr. tit. Evidence, I. b, pl. 9. — 1 Keb. 286. - - Pennington's N I. Rep. 168, Cook vs. Barkley. — 1 Binney's Rep. 85, Kennedy vs Gregory. — Ibid 90 in notis, Morris vs. Duane.
      
    
    
      
      
        Bul. N. P. 10. — Danv. Abr. 163. — 7 D. & E. 17, Davis vs. Lends
      
    
   Parsons, C. J.

[After reciting the pleadings, and the evidence offered by the defendant at the trial.] This evidence the judge rejected, and in our opinion very properly. The defendant, not content to slander the plaintiff in the country, perseveres in the calumny by putting the slander on record ; and would now protect himself from damages, by proving that reports against the plaintiff’s character, imputing larceny to him, previously existed. Two of these reports the jury have found to be false; and the general report might have been discredited, if not followed by the slanderous words of the defendant himself.

The plaintiff could have no notice from the pleadings to meet this evidence; and when regularly seeking redress for an injury from the defendant, he might be overwhelmed by particular scandal, which could not be traced to any author ; or, if it could, might be disproved. The evidence of such reports would, therefore, be extremely oppressive to the plaintiff, and would encourage slander in the country, by leading people to suppose that they were excusable in relating scandal, if they were not the authors of it.

Evidence as to the general character of the plaintiff, he may at all times encounter, if untrue; and if his character be generally bad, independent of the slander of which he complains, the jury may consider it. For the worth of a man’s general reputation among his fellow-citizens may entitle him to large damages for an attempt to injure it; which he ought not to obtain, if his character is of little or no estimation in society.

But evidence of the plaintiff’s general character was not offered ; but only an attempt to blast his reputation by particular reports, which he might not have it in his power to silence, but by commencing this prosecution. And if such reports could be given in evidence, the subject of them, however innocent, instead of seeking redress from the laws, had better sink privately under the weight of unmerited calumny, lest, by attempting his justification, he should * give notoriety to slanders,. which [*519] had before been circulated only in whispers.

This is not like the case of Larned vs. Buffington, (3 Mass. Rep. 546.) There evidence of the plaintiff’s rank and employment was offered and rejected, and, under the circumstances of that case, not injuriously to the defendant. For the damage arising from the defamatory words, instead of being lessened by the plaintiff’s em ployment, ought, if at all affected, to have been aggravated.

Let judgment be entered on the verdict. 
      
       [See Starkie on Evidence, 2d edit. pp. 470, 216, 217, and note (k). — Ed.]
     