
    [Pittsburg,
    September 26, 1826.]
    M'ALMONT against M'CLELLAND.
    IN ERROR.
    Wliére, in slander, the words laid are, that the defendant said that the plaintiff’ had stolen property; and the witnesses offered by the plaintiff, can only testify, that the defendant said that the plaintiff' had either taken or stolen it, without being able to say which expression was used, the court ought to receive the evidence, and leave it to the jury to determine, from the sense of the whole conversation, which expression was used.
    A repetition of the charge, after suit brought, may be given in evidence, to show malice, in an action of slander.
    in slander, evidence is admissible to prove the defendant’s situation in point of property.
    On a writ of error to the Common Pleas of Washington county, it appeared by the record, that Robert M‘Clelland, the defendant in error, brought this action against John MtUlmont, the plaintiff in error, for defamatory words. The declaration contained two counts, in the first of which, the words were laid thus:
    “You are a thief, and I can prove it; you stole hides or leather out of your father’s tan vats in the night-time.” In the second count, the same words were laid in the third person.
    At. the trial, the plaintiff offered Isaac Griffith and Richard Chapman, to prove the facts hereafter stated. Their evidence was objected to by the defendant’s counsel, but the court admitted it, and exception was taken to their opinion. William Rankin testified, that in the month of October, 1823, after the election, he was at James Harwood’s, at a husking, in company with the defendant and several others : That whilst at supper, the defendant asserted that the plaintiff, after his removal to Burgettstown, came to his father’s in the night, and took or stole, (the witness could not say which was the expression,) a quantity of leather from his father’s vats: That the plaintiff took out the leather, and .filled up the vats with tan bark: That the defendant asserted “ he could prove this,” or that «it could be proved,” the witness could not say which expression was used, but he was confident it was one or the other.
    
      Isaac Griffith swore that he was at Harwood’s, on the occasion referred to by Rankin : That they were talking about the election, when it was asked, what Robert McClelland (who was stated in the ■ declaration, to have been a candidate for the office of sheriff,) could do with a certain M(Conehough, who had made charges against him: That the defendant said he could do nothing with him; for that he, the plaintiff, had either taken or stolen, (the witness, could not specify which of the expressions was used,) leather out of his father’s tan vats: That the witness observed, he did not count it stealing, as it was from the premises of McClelland? s father;-but M‘Jllmont, (the defendant,) said it made no difference, though the father did not prosecute: That some time after, MMrnont was at the witness’s house, with MlClelland: That he did not deny what the witness had reported him to have said at Harwood’s, except the circumstances of MlClelland,s going by night for the leather. Richard Chapman proved, tfyat after the institution of this suit, he heard the defendant say, that he could have no difficulty in proving that the plaintiff had stolen his father’s property.
    The plaintiff offered to prove, by James Ross and others, the situation of the defendant in point’ of property; to which the defendant’s counsel objected, but the court overruled the objection, and the evidence was given; upon which a bill of exceptions was tendered to the opinion of the court.
    
      Waugh and Biddle, for the plaintiff in error,
    1. The words proved by Rankin and Griffith, did not go to support the declaration. The declaration charges the defendant with having said, that the plaintiff stole the leather, and the witnesses were unable to say, whether he said that he had taken or stolen it. Words must be proved as laid, and words to the same effect, will not do. 2 Phill. Ev. 97. Words laid in the third person are not supported by evidence of words spoken in the second person. McConnell v. McCoy, 7 Serg. & Rawle, 227. Brown v. Lamberton, 2 Binn. 34. 3 Binn. 515.
    2; The evidence of Chapman went to prove words spoken since the commencement of the suit, which was incompetent, if the words laid in the declaration were not proved. In Wallis v. Mease, 3 Binn. 550, the Chief Justice declared, that if it had not been already determined, that words spoken since those laid in the declaration were evidence, he should reject them.
    3. The admission of evidence of the defendant’s situation, as respects property, was wrong. The plaintiff’s rank in life, may be given in evidence, because it is in issue. Learned v. Buffing-ton, 3 Mass. Rep. 552. But the condition of the defendant is a different matter. The injury to the plaintiff is no greater on account of the defendant’s estate; and, as the defendant has no notice of the evidence, he may be much surprised by it. There is no adjudged case or authority on the point; but the reasoning of Starkie, (1 Starkie on Slander, 402,) seems in our favour.
    
      Kennedy, for the defendant in error.
    It is enough if the witness proves the substance of the words laid in the declaration ; words, which in common parlance have the same import. Miller v. Miller, 8 Johns. 74. The declaration may lay, that the defendant c£ spoke words in substance as folloios.” Kennedy v. Low-ry, 1 Binn. 393. The objection that the witness was not sure whether the word took or stole was used, may be answered by saying, that this was a question proper for the determination of the jury upon a view .of the whole evidence.
   The opinion of the court was delivered by

Duncan, J.

This was an action, brought by M‘Clelland, against M‘Jilmont, for defamatory words laid in two counts. In the first, “ You are a thief, and I can prove it. You stole hides or leather out of your father’s vats in the night time.” In the second count the words are I aid in the third person.

The errors assigned were in receiving the evidence of William, Rankin and Isaac Griffith. They are precisely of the same character, and are said to consist in this, — that these witnesses could not state the very words of the defendant, whether it was stole. or took; and though they were sure it was either the one or the other, they could hot state which. Admitting this to be the subject of a bill of exceptions to the evidence itself, (for the sake of the argument,) and for any other purpose I protest against it, because, if there is any thing in the exception, the course should have been, after the evidence had been received, to call on the court to instruct the jury, that the defendant had not proved the words laid, and then, if the opinion had been erroneous, to except to that, I am of opinion that it was admissible, and that it was for the jury to say what the words really were, from the sense of the whole conversation. For, if that were not the case,- the slander must have gone unpunished. The defendant explained what he had said, and intended, in the subsequent part of the same conversation; a construction of it. On the charge being made, the witness, Rankin, observed, ‘‘He did not count the act stealing, as it. was from the premises of his father.” To which MlMmont directly replied, “That made no difference, though the father did not prosecute:” thus directly impeaching him of the act of stealing. “It is stealing,” said the defendant, “though on his father’s premises; and though his father has not prosecuted him.” This was not only the plain meaning, but the plain language;' and so the jury have found the fact, that the defendant did say stole, and, I think, with good reason. On a motion for a new trial, the court would not have set aside the verdict as contrary to the evidence; and the evidence of Richard Chapman confirms this, if it wanted'confirmation. For after this suit had been instituted, he said he would have no difficulty in proving that the plaintiff, M‘Clelland, had stolen his father’s property. Nothing could tend more to satisfy a jury that the word was stole, than the defendant’s boast that it would be easy for him to prove it. But this evidence was likewise excepted to. This was not a new charge, for which a new action could be' brought, but was spoken in relation to the pending suit; in defending himself from which suit, he said he would have no difficulty in proving that M‘Clelland had done that which he had charged him with, — to wit, stolen his father’s property. It was a repetition of the same charge, and was evidence of his malice; and it was proving, from his own lips, that stealing was the crime imputed to the plaintiff by him. This was all proper evidence to go to the jury, and if the court had overruled it, it would have been withdrawing the facts on trial from the jury. If the defendant had demurred to this evidence, its truth would have been admitted, and every inference which a jury might reasonably have drawn from it, must have been likewise admitted. The jury might have reasonably drawn the inference, that the word was stole. Indeed, from the whole conversation, (its whole colour,) stealing was the very thing he intended; and his subsequent boasting shows it was the word he had used. There is no error, therefore, in the first bill, which relates to these three witnesses.

The second bill of exception, was to the admission of evidence to prove the defendant’s situation in point of property. It has not been denied, that it has been the practice to receive this kind of evidence in actions of slander, though it is said, that there is no adjudication to be found in the books of reports, where there has been a direct decision on a question made.' It is enough to say, that this practice has continued for a time, beyond which the memory of man runs not to the contrary. This constant usage proves the law. We look for cases on disputed points, but undisputed principles may be, without any particular precedent to be found, or a direct judicial decision. It is handed down as the law, — the principle has been constantly applied. What is this but the common law? No man can tell me when, or name the case in which it was first decided, that the word heirs, in a deed, was necessary to create a fee simple estate. This inquiry into the condition of the defendant has constantly been made, and has always been applied to those cases where damages are designed, not only as a satisfaction for the injury, but as a terror to others, and as a proof of the detestation of juries. In cases of crim. con., actions for debauching a man’s daughter, seduction and getting with child, per quod servilium amisit, actions for malicious prosecution, slander, and other actions of the same species, where the damages are not matters of calculation by dollars and cents, but where each must depend on its own particular circumstances of aggravation, and the condition in life of the parties, courts (unless the damages are outrageous,) never set aside the verdict on account of the damages, but always take into view the situation of the parties as to property; and this they can only know from the evidence. The condition, and even the sex of the parties, are considered. The imputation of want of chastity to a man, is actionable; yet, unless under very particular circumstances, only nominal damages would be given. The pecuniary injury might be as great "to him, as the same imputation would be to a female. In the latter case, they would always bear some proportion to the estate of the slanderer, and the condition in life of the party slandered. Pecuniary loss is lost sight of, — it is not a matter ofcalculation, but of policy: the estimation of the value of character, and the detestation of crime.

The counsel has selected one of our wealthiest citizens to illus-irate his position, that the damages should be equal where a blow was inflicted by him on a man of his own standing in society., and where on the man who blacks his shoes; and that there should be the same measure of damages, where a slander was uttered by the shoe-black against a fish-woman, as by the wealthiest citizen against the most respectable female. In a remarkable case of malicious prosecution, where forty thousand pounds were given in damages, evidence had been given of the great estate of the defendant, i.n possession on record, of more than fifty judgments, to the amount of more than one hundred thousand pounds, and in the actual receipt of three thousand pounds per annum. The court refused a new trial, because the defendant was well able to sustain the verdict. In all trials for crim. con., the situation and condition of the parties are always given in evidence. With us these actions are uncommon, because the crime is a rare one.

The matter cannot be reasoned on, upon the doctrine of equality of rank and condition:.the law does not so reason upon it. It would be destructive of the best interests of society so to reason upon it. The plaintiff, in this action, may give evidence of his own condition in life to aggravate the damages. This is well settled, and its reasons ably stated, in the opinion of one of the most distinguished judges, that ever graced a judicial seat in any county, Chief Justice Parsons, in Learned v. Buffinglon, 3 Mass. Rep. 548. The same reason hplds, and the same principle obtains, as to the condition and circumstances of the defendant. There is nothing in opposition to this to be found in any elementary treatise, and we are not to be guided in our judgments by the speculations of any writer, however respectable he may Be, and however correct and well arranged his books may be, as a mere compilation. The passage referred to in Starkie is itself obscure. While he admits the practice, he says, “the principle is not very obvious, and scarcely can be warranted, unless the situation and rank of the defendant have affected the question of prejudice sustained by the plaintiff.” This prejudice, in almost evei'y case, will depend on the condition in society of the slanderer. But actual pecuniary prejudice seldom is susceptible of proof in these actions, and is not the only standard of damages. Pecuniary loss is often small, where tHe distress and misery inflicted by the slanderer are great. The injury is not capable of strict pecuniary admeasurement in fact; and wherever the natural consequence of the words is a damage, as the imputation of a crime of moral turpitude, subjecting the party to an indictment, or to an infamous punishment, always is, the law supposes a damage, whereas, in other eases, the party' who brings an action for words must show the daipage he has received from some specific loss. Damages are given by way of example. That which would be exemplary', as to one, would not make another feel, — would be no terror to him.

Judgment affirmed.  