
    Kendall v. Stone.
    
    In an action for slander of title, the truth of the words may be given in evidence under the general issue.
    Three things are necessary to maintain an action for slander of title. The words spoken must be false ; they must work an injury to the plaintiff in respect to his title ; and they must be malicious; not malicious in the worst sense, but with intent to injure the plaintiff.
    A person who utters words in the Iona fide assertion and maintenance of his own title, is regarded as standing in a more favorable position, in an action for slander of title, than he who attacks the title of another without such cause, it seems.
    
    In an action for slander of title, it is proper for the judge to charge the jury that the question for them to determine is, whether the defendant made the statements respecting the plaintiff’s title Iona fide, and under an honest impression of their being true : or whether he made them maliciously, and for the purpose of slandering the plaintiff’s title ; and that the question whether the words were spoken maliciously or bona fide, depends very much upon their truth or falsity, and the circumstances under which they were spoken ; whether honestly, to caution purchasers, or to alarm them with unfounded charges.
    Where the evidence proves the speaking of words by the defendant, derogatory to the plaintiff’s title, and that the person to whom they were spoken forebore, in consequence thereof, to complete a contemplated purchase of the property from the plaintiff, sufficient words, and a consequence from them sufficiently detrimental to the plaintiff, are shown to sustain an action ; provided malice in the defendant be also established.
    Malice, in such an action, is a question of fact, and should be submitted to the jury.
    Proof of conversations of the defendant, other than those laid in the declaration, respecting the same title and subject, are admissible for the purpose of proving the malice of the defendant.
    Though a witness can only testify to such facts as are within his own knowledge and recollection, yet he may refresh his memory by the use of a written memorandum. But where the witness neither recollects the fact, nor remembers to have recognized the written statement as true, and the memorandum was not made by him, his testimony, so far as it is founded on the memorandum, is but hearsay.
    In actions of tort, the jury are the proper judges of the weight and effect of the evidence ; and the court will not interfere with the damages found by them, unless they appear to be grossly disproportionate to the injury sustained.
    In an action for slander of title, the judge is justifiable in charging the jury that they may give exemplary damages; and in refusing to charge that they can only give compensatory, as distinguished from exemplary, damages.
    Nov. 13, 14;
    Dec. 30, 1848.
    
      This was an action to recover damages forBan alleged slander of the plaintiff’s title to certain lots of land situated in the sixteenth ward of the city of New York. The cause was tried in December, 1846. The plaintiff produced and read to the court, a deed of the premises in question, executed by the defendant and wife to the plaintiff, bearing date April 10, 1845, subject to a mortgage for $3000, and interest from October, 1844, and subject also to assessments for opening Thirty-Seventh street and Madison Avenue. The deed contained no warranty whatever, but contained a covenant against the grant- or’s own acts.
    Asa H. Wheeler, a witness for the plaintiff, testified that on the 28th of October, 1845, he negotiated with the plaintiff for the purchase of one of the lots for the sum of $900, by a contract in writing, which was produced and read in evidence; that the lot was to be 25 feet in width, and of a depth equal to half of the block; the witness was to pay $250 on the day of the date of the contract, (which he did,) and the balance as wanted; that the understanding with the defendant at the time of the purchase was, that the witness should go up the next morning and select a lot. That accordingly, he went up the next morning, and when on the way, he met the defendant, and had some conversation with him, but did not recollect whether he first mentioned to the defendant that he had purchased the lot, or he first spoke of it to the witness. That in the course of the conversation, the defendant told the witness that he, the defendant, had a mortgage on the property for $3000, and that there was a state loan on it for $3000; that there were liens upon it, or bills filed against it, by Mr. Reed ; and that if it could be made to appear that Mr. Woolley had an interest in the lots, it would have a bearing upon them; and that he thought it risky to purchase of Mr. Kendall, the plaintiff, under these circumstances. The witness testified that it was a year or more since this conversation occurred, and it was difficult for him to recollect what was said; that he made a memorandum afterwards; that the defendant said it was risky to purchase of the plaintiff. That on another occasion, about a fortnight afterwards, the defendant said, Kendall could not give a warranty deed for those lots, as he, Stone, had not given one to Kendall. That during the first conversation, the defendant said he thought it his duty to inform those about purchasing the property, especially his friends and acquaintances, of the situation of the property. That the witness requested Mr. Wetmore to make searches, and he ascertained that there was no bill filed against the property, except on the mortgages. That on the day of the second conversation with the defendant, there had been a previous understanding that the plaintiff should call upon him at 12 o’clock, and the witness was to go with him to the defendant’s store, to tender him the money, in order to get a release. That the defendant called upon the witness early that morning, and previous to the plaintiff’s appointment, and inquired if Mr. Wetmore had found any liens on the property. On being informed that none had been found, the defendant insisted that there were claims or bills, and that Mr. Wetmore must have overlooked them. That on this conversation, the witness concluded to give up the property entirely.
    That Stone also called on me at my rooms, and the import of the conversation was the same as at our previous interviews. He then stated, that Mr. Reed had filed a bill against Mr. Woolley, which he presumed he would be able to collect from a lot. I had then bought the lot, and paid a part of the purchase money.
    The witness proceeded: Mr. Stone told me, that he had made an offer to Kendall for one of the lots. The offer was $700 ; it was for a lot adjoining Stone in the rear. After this, I threw up the purchase, and Kendall gave me his note for $250—the money I paid. I was fearful of getting into difficulty, and therefore gave up the purchase. Mr. Stone said he thought Kendall had better take his offer of $700 for that lot, so that he would have money to pay off these liens. I should have taken the title of it, had it not been for what Mr. Stone said. I did not go to Mr. Stone to tender him the money, because in consequence of his previous conversations, I had made up my mind to give up the lot. I offered to raise the $6000, to pay off both mortgages. I spoke to both Mr. Stone and Mr. Kendall about it. I did not do it, because I was fearful it would not be safe, according to Mr. Stone’s account.
    On being cross-examined, he testified that Isaac M. Woolley was the subscribing witness to the agreement mentioned in his direct examination; that the body of the agreement was in Mr. Woolley’s handwriting; that Kendall was brother-in-law to Woolley. Witness could not say how long he had been negotiating before the agreement was made, perhaps two or three weeks; that he had a conversation with Woolley about it. Woolley was a particular friend of the witness, and wanted him to buy this property and build upon it.
    The defendant’s counsel then asked the witness the following question : “ Who did you bargain with?” To which the counsel for the plaintiff objected; and the defendant’s counsel proposed to go on and show the truth of the words spoken, under the general issue, to which the plaintiff’s counsel objected. The court, after discussion, ruled that the defendant might show the truth of the words alleged to have been spoken, under the general issue, to which the plaintiff’s counsel excepted. The witness proceeded, and in answer to the question, said : Mr. Woolley first called on the witness about the lots; -this was about a week or ten days before ; the witness did not agree to look at the lots, because he knew pretty much how they were situated ; that he afterwards went to look at them, and Woolley and Kendall went with him; that Woolley gave him to understand that he was agent for Kendall; that witness did not call upon Mr. Reed previous to giving up the bargain, nor request Mr. Wet-more to do so; that when Stone called at the witness’s room, he said that the purchase money was to be all paid to him, instead of the $650, as that was the agreement between him and Kendall. »
    That the remarks of Stone, given at the first interview, were made in answer to inquiries made by witness, respecting the title of the lot.
    On his further direct examination, this witness stated that it was difficult for him to give the residue of the conversation at the third interview; that Mr. Stone said he thought Woolley was concerned in the property, and was acting under a cloak ; that he was a very troublesome man to deal with about money matters. He said the witness would find Mr. Woolley a difficult man to get along with ; that he was a very good man as long as money did not interfere; witness presumed he first asked Stone about the title. The witness had no reason to believe or suppose that the title was not all right until Stone told him. That witness was not informed by either Woolley or Kendall, before his first interview with Stone, that there were any mortgages upon the lot.
    William C. Wetmore, another witness for the plaintiff, testified that Mr. Wheeler applied to him to search for mortgages and incumbrances against the lot, from the time of the mortgage to the commissioner of loans ; that he had a search made by the register, for taxes, assessments and liens in the several courts ; he was never asked to look at the back title; Wheeler assumed that to be good; that witness made the searches which showed a conveyance from Woolley and wife to Edward Stone, dated the 25th May, 1842, and recorded on the day of its date; also a conveyance from Stone and wife to Kendall, by deed dated 10th April, 1845, and recorded April 14th, 1845; also a mortgage from Kendall and wife to Stone, dated April 10th, 1845, and recorded April 14th, 1845 ; that the search for assessments showed assessments unpaid for opening Thirty-seventh street, and assessments for opening Madison Avenue, also unpaid taxes due; that the taxes of 1845, amounting to $125, were unpaid ; that the searches in the supreme and the superior courts were made against Woolley from January 1st, 1838, to July, 1840, and against Edward Stone for 5 years previous to the 1st July, 1840, and no judgments found; also searches were made in the common pleas, for five years prior to June 1st, 1842, against Woolley, and for ten years against Kendall and Stone ; that he found two judgments against Woolley before he conveyed to Stone, which were satisfied; that there were two other judgments against Woolley, and some other incumbrances not satisfied, obtained after the lots were conveyed to Stone ; that none of the notices of lis pendens found touched the lots in question, and the witness reported that they formed no objection to the title; and he told Mr. Wheeler that the title was satisfactory to him ; that it was usual to pay assessments and taxes out of the purchase money; that they were in this case very trifling.
    The plaintiff here produced the bill in chancery of Stone v. Kendall & The Loan Commissioners, filed February 2, 1846, to foreclose the above mortgage from Kendall to Stone, by which bill it appeared that the plaintiff and wife and the loan commissioners only, were made parties defendants.
    James Hall, another witness for the plaintiff, being asked if he had a conversation with Stone about the property in question, the counsel for the defendant objected thereto and to the admission of evidence of other slander than that alleged in the plaintiff’s declaration. The judge ruled that he would permit the plaintiff to prove other remarks or declarations of Stone, for the purpose of showing malice, but not as a substantial ground of action or damage; to which defendant’s counsel excepted. The witness then testified to a conversation between him and the defendant, in which the latter stated that the plaintiff would not be able to give a clear title to the premises in question, as there were one or two mortgages upon it, at that time ; that he stated that he had one and that there was a state loan upon it, and the only way to get a clear title would be in case he, (Stone,) should foreclose upon the. property, he could give a clear title, but Mr. Kendall could not, of course, give a clear title, as he, (Stone,) held a mortgage against him ; that Stone said he had offered to buy one of the lots of Kendall for $700. It was a lot on the hill and witness thought one adjoining Stone’s; that Stone said he thought $700, was as much as the lot was worth and as much as Kendall would realise from it for some time to come; that the witness did not recollect when this conversation was, but he thought it was the latter part of November, 1845.
    ■ Alfred W. Waddell, testified to a conversation with the defendant, about the plaintiff’s property on the hill, in November, 1845, at defendant’s store ; that witness asked him the value of lots on Thirty-seventh street belonging to Mr. Kendall; he said he thought they were worth about $600 or $700 ; that he mentioned that Mr. Wheeler had bought one for $900, but that he had backed out, and thrown it up, on account of some difficulty about the title ; that witness either asked him, or he volunteered to tell, what the difficulty was, and he said that a bill had been filed, or would be filed in a day or two, against Mr. Kendall, by some person by the name of Reed, and that it was supposed Kendall was used as a cloak to cover the property of Woolley.
    Some other witnesses were examined in respect to declarations made by the defendant concerning the plaintiff’s title, whose testimony it is not necessary to give.
    The plaintiff then read in evidence a deed from Woolley and wife to Stone, dated 25th May, 1842, for the consideration of $5035, conveying the premises in question, and other lands. It was a warranty deed, with full covenants, subject to a mortgage to the state for $4035, with interest from the first Tuesday of October, 1847, which Stone assumed to pay as a part of the consideration or purchase money.
    The plaintiff’s counsel then put in evidence the mortgage from Woolley to the loan commissioners, dated 12th August, 1837, for $4035, upon which $1035 had been paid on the 10th October, 1843.
    Here the plaintiff’s counsel rested, and the defendant’s counsel thereupon moved the court to grant a non-suit, for these reasons:
    I. This case being in the nature of an action for malicious prosecution, the plaintiff must prove the words, want of probable cause for believing them to be true, and special damages arising from and consequent upon the speaking of the words.
    1. The words have not been proved. Wheeler is the only witness upon this subject, and his testimony should be excluded, because it was not testimony, but merely the reading by him of a memorandum.
    2. But if his testimony be admissible, still the words laid in the declaration are not thereby or otherwise proved.
    II. Because the plaintiffs have shown that most of the words used, or statements made by the defendant are true in point of fact; those words and statements should therefore be considered, so far as respects this question, as not contained in the declaration.
    III. There is no proof of damages. The plaintiff must prove damages as the consequence of the particular words spoken.
    The court refused a non-suit; to which decision the defendant’s counsel excepted.
    The defendant’s counsel having opened the defence to the jury offered to read in evidence a bill in chancery, filed before the vice-chancellor of the first circuit, in a case wherein Thomas Page was complainant, and Isaac M. Woolley and Josiah F. Kendall were defendants, filed 14th June, 1845, upon a judgment alleged to have been obtained against said Woolley on the 30th May, 1842, to which the plaintiff’s counsel objected. The objection having been overruled and the plaintiff’s counsel having excepted, the bill was read.
    Richard Reed, a witness for the defendant, testified that he was a counsellor at law and solicitor in chancery ; that he filed a bill in favor of Page against Woolley and Kendall; the suit in which that bill was filed, was pending in November, 1845, and it was still pending. Being asked, “ Did you ever communicate to Mr. Stone the fact that such a bill was filed ?” the plaintiff’s counsel objected to the question. The court having overruled the objection and the plaintiff’s counsel having excepted, the witness answered that he did; that he told him soon after the filing of the bill; that he stated to him that he had filed a bill on behalf of Mr. Page, to recover the judgment described in the bill, and requested him to recollect the facts connected with it, as he supposed he (Stone,)'would be wanted as a witness ; that he requested him to recollect the facts connected with the transaction between Woolley and Kendall; that he referred to the transfer of the real estate, which he had conveyed to Kendall; that he stated to him why he had filed the bill; that he told Stone that it was Woolley’s property, and that he proceeded on that ground; that neither Kendall nor Woolley have ever answered that bill; no process was served in the suit; there had been several efforts to settle it; that when the bill was filed it was without any understanding with Kendall and Woolley. Being asked by the counsel for the defendant if it was done in good faith 1 he said it was, and with the intention of going on with it.
    The testimony on both sides being closed, the counsel for the defendant renewed his motion for a non-suit, for the reasons above stated, and also upon the ground that the words spoken by the defendant, as alleged in the plaintiff’s declaration, were proved to be true, and also proved to have been spoken in answer to inquiries made of the defendant, without any malice. The court refused to grant the motion for a non-suit, and the defendant’s counsel excepted.
    The counsel for the defendant requested the judge to charge the jury that if they should find in favor of the plaintiff, then they should find only such damages for the plaintiff as were the consequences of the words spoken.
    The judge charged the jury as to damages as follows :
    “ Upon the subject of damages, if the words were spoken in good faith and without malice, there are to be no damages ; if not so spoken, it is otherwise. You can then award such damages as you think established by the evidence. If the defendant has been actuated by malicious motives, and with the desire of crippling the plaintiff and engrossing the property for less than its value, you are not obliged to estimate the amount with any great scrupulousness, nor be restrained by the inquiry how much the plaintiff has lost by losing the sale of his property. The offence of deliberately slandering another’s title to property, from malicious or selfish motives, if proved, merits, and public example requires, such damages as are calculated to prevent the repetition of the offence by others, and you have a right not only to compensate the injured party for his loss, but to keep an eye to good morals and to public example. But you. are not to act under the impulse of passion or prejudice, but as rational and sensible men, looking at the case and the evidence presented to you.”
    The counsel for the defendant thereupon excepted to the charge. The jury found a verdict for the plaintiff for nine hundred dollars damages ; and the defendant moved for a new trial.
    
      W. Bliss, for the plaintiff.
    I. The motions for a non-suit were properly denied. The only question upon such motions is whether there was sufficient evidence to carry the cause to the jury ; and the ground of the motion must be properly taken and specifically stated. 1. The principles of actions for slanders of title will be found stated in Hargrave v. Le Breton, 4 Burr. 2422 ; Smith v. Spooner, 3 Taunt. R. 246, and cases there cited; Pitt v. Donovan, 1 Maul. & Selwyn, 639; Watson v. Reynolds, 1 Moody & Malkin, 1 ; Pater v. Baker, 3 Man. Gran. & Scott, 831, 54. The essence of the action is a malicious depreciation of the plaintiff’s title; and the malice may be either express or implied. A person has a right to utter words in the “bona fide”assertion and maintenance of his own title, but not to attack the title of ano- ■ ther, without such cause. 2. In the points taken upon the motions, the defendant does not deny that there is evidence tending to establish, with perhaps one exception, the particulars mentioned, but insists that they are not proved or established, or that other facts have been proved by the defendant. Questions not for the court but for the jury. 3. There was sufficient evidence of the speaking of the words. Upon a motion for a non-suit, an exception to the testimony cannot be taken. It is now held to be sufficient to prove the words in substance as laid. (Buller’s N. P. 5; Miller v. Miller, 8 John. R. 74; Olmstead v. Miller, 1 Wend. 506 ; Fox v. Vanderbeck, 5 Cow. 513.) As examples, see Doneasler v. Hewson, 2 Man. & Ry. 176; Dyer, 75 ; Miller v. Miller, supra. It is not necessary to prove all the words, but so much of them only as will sustain the action. (5 Cow. 513; 1 Wend. R. 506.) See also Code of Procedure, § 145, 146, 147,149, 151, now in force in all suits, as to what variances shall be deemed material, and what errors or defects in the pleadings or proceedings the court shall disregard or may amend. 4. The truth of words was matter of defence, and whether and how far established, was for the consideration of the jury. It was neither admitted nor shown by the plaintiff. 5. There was sufficient proof of malice ; and the question of malice is exclusively for the jury. (Boswell v. Osgood, 3 Pick. R. 384; Demarest v. Haring, 6 Cow. R. 76; Jarvis v. Hathaway, 3 John. R. 183 ; Cooke on Law of Defamation, 38 ; Kelly v. Partington, 4 B. & Ad. 700.) The deliberate attempt to justify the charges as true, is itself evidence, and an admission of the malice. (Root v. King, 6 Cow. 624, Per Chancellor, 4 Wend. R. 139, S. C.) Words defamatory of a title, uttered by a stranger, that is not in assertion and vindication of one’s own title, imply malice. (See supra.) There was abundant proof of actual malice. The question was fairly submitted, and the jury have found it against the defendant. 6. There was sufficient proof of special damage. The loss of the sale to Wheeler would alone support the action. 7. Want of probable cause is not of itself a requisite of this sort of action. In Pater v. Baker, (supra,) Maule, J. says that the existence of probable cause “ does not afford any answer to the action.” In Pitt v. Donovan, Bailey and Dampier, J. J., only said that it was to be made out “ where a person is not to be treated as a mere stranger.” “ Such a want,’.’ says J. Dampier, “ as would induce a jury to infer that his conduct is founded in malice while Lord Ellenborough, in his more able and elaborate opi. nion in that case, said that probable cause “ was not strictly the issue.” No decision can be shown that it is. The true point is malice. The jury have found the one, and negatived the other.
    II. The defendant’s exceptions to the admission and rejection of evidence were not well founded. 1. The witness, Wheeler, had a right to refresh his memory from the memorandum, and did nothing more. (Robertson v. Lynch, 18 J. R 45 ; Feeter v. Heath, 11 Wend. R. 485 ; 1 Phil. Ev. 289.) If the words were correctly stated in the memorandum, the witness, also correctly stating them, must repeat. 2. The proof of other conversations of the defendant respecting the same title and subject was admissible, to prove malice; for which purpose only they were stated to be offered and were received. (Inman v. Foster, 8 Wend. R. 602 ; Kennedy v. Gifford, 19 Wend. R. 296, are express decisions upon this point. So also, is Tate v. 
      Humphrey, 2 Camp. R. 73, n.; Lee v. Macguister, 1 Camp. N. P. 48; Lee v. Huson, Peake, 166; Warne v. Chadwell, 2 Stark. R. 457; Stuart v. Lovell, 2 Stark. R. 93 ; MacLeod v. Wakley, 3 Car. & Payne, 311; Child v. Affleck et ux. 9 Barn. &. Cress. 403; Rogers v. Clifton, 3 Bos. & Pul. 587; Buller’s N. P. 72; Phil. Evid. (7th ed.) 246; Bodwell v. Swan, 3 Pick. R. 370 ; Child v. Horner, 13 Pick. 503; Wallis v. Mead, 3 Binney, 546; Shock v. McChesney, 2 Yeates, 473; Kean v. McLaughlin, 2 Serg. & Rawle, 469; McArmont v. McClelland, 14 Serg. &. Rawle, 359 ; Duvall v. Griffith, 2 Har. & Gill, 30 ; Miller v. Kerr, 2 McCord, 285.) That a plea of justification is evidence of malice, being a repetition of the slander, is also a branch of the rule ; (Edgell v. Francis, 1 Mann. & Granger, 222; Caddy v. Barlow, 1 Man. & Ry. 275.) Also cases of fraud; (Alison v. Mathieu, 3 John. R. 235 ; Benham v. Cary, 11 Wend. R. 83 ; Jackson v. Timmerman, 12 Wen. R. 299;) 3. There is nothing in the other exceptions; (1 Phil. Ev. (Cow. & Hill’s ed.) 293 ; Watson v. Court, 2 Car. & Payne, 232.)
    III. The charge of the judge was correct It was founded on the doctrines of Lord Ellenborough, in Pitt v. Donovan. That portion of it relating to exemplary damages is according to the settled law of this state; (Tillotson v. Cheetham, 3 John R. 56; Huston v. Hopkins, 9 J. R. 37; Hoyt v. Gelston, 13 J. R. 141 ; Woat v. Jenkins, 14 J. R. 352; Woodward v. Paine, 15 J. R. 493; Ex parte Bailey, 2 Cow. R. 479 ; Paddock v. Salisbury, 2 Cow. R. 811, 3 J. R. 180 ; Sargeant v.-----, 5 Cow. R. 106; Southard v. Rexford, 5 Cow. 254; Elliot v. Brown, 2 Wend. R. 497 ; Cable v. Dakin, 20 Wend. R. 172 ; Tift v. Culver, 3 Hill R. 180 ; Cook v. Ellis, 6 Hill R. 465 ; Burr v. Burr, 7 Hill, 217, per Strong, Senator; Auchmuty v. Tearn, 1 Denio, 495 ; Allen v. Addington, 7 Wend. R. 9 ; King v. Root, Court of Errors, 4 Wend. R. 113, 133, 139; McAlmont v. McClelland, 14 Serg. & Rawle, 359 ; Williams v. Cruise, 1 Man. Gran. & Scott, 842, per Maule, J.; Marest v. Harvey, 5 Taun. 442.)
    IV. The judge rightfully refused to charge that the jury could only give compensatory as contradistinguished from exemplary damages. (See last point.)
    
      Y. In actions of tort, the jury are peculiarly the proper judges of the weight and effect of the evidence; and the court will not grant a new trial, because the damages are alleged to be excessive ; unless the amount is so grossly outrageous and extravagant as manifestly to show partiality, prejudice or corruption. (Cable v. Dakin, 20 Wend. R. 172; Marquisee v. Ormston, 15 Wend. R. 368 ; Sargeant v. ----, 5 Cow. R. 106, 118,119 ; Coleman v. Southwick, 9 John. R. 45 ; Sharp v. Brice, 2 W. Black. 942; Williams v. Currie, 1 Mann. Gran. & Scott, 841; Edgell v. Francis, 1 Mann. & Gran. 222; Rost v. King, 7 Cow. R. 637; S. C. 4 Wend. R. 135.)
    There is no reason why this verdict should be disturbed. There was a malicious depreciation by the defendant of a title derived from himself, and for. which he had- received a full consideration.
    
      F. B. Cutting, for the defendant.
    I. The evidence of Wheeler, read from the memorandum made by him on the 12th February, 1846, more than three months after the conversation which it professes to record, ought not to have been received. (2 Cow. & Hill’s Notes, 550, 750.)
    II. The evidence of James Hall, as to the declarations alleged to have been made by the defendant to him in the fall of 1844, or early in the winter of 1845, ought not to have been received. The evidence of Alfred W. Waddell, and James A. Rich, of declarations alleged to have been made by the defendant to them, was not proper.
    III. The motion for a non-suit ought to have been granted.
    IY. The motion for a non-suit made after the testimony was
    closed, ought to have been granted. 1. Not only was there no evidence of want of probable cause, but the evidence showed that Stone had good reason to believe what he stated to be true; indeed that it was true. 2. The information was given in answer to inquiries, and required the plaintiff to prove express malice, in order to maintain his action.
    Y. The charge of the judge was erroneous and was calculated to mislead. 1. He charged that the question of malice depended upon the truth or falsity of the words spoken. 2. He ought not to have submitted to the jury, the question whether in point of fact “ it was risky,” to buy this property. 3. The jury were misled by the remarks in relation to the desire of the plaintiff to purchase a lot for $700 ; and in relation to the evidence of Hall, Waddell and Rich ; also in relation to the evidence from which the judge informed the jury they might infer bad motives in the defendant. 4. The rule of damages was wrong, and the result shows that it misled thg jury. (Cooke’s Law of Defamation, 223, 103 ; 4 Phill. Ev. 248 ; 2 Stark, on SI. 103-4; 2 Greenl. §254; Yelv. 89, note; 1 Esp. Rep. 48.)
    
      
      
         Oakley, Ch. J, was absent because of indisposition.
    
   By the Court. Vanderpoel, J.

It would seem from the books of reports of this state, that this is a rare action among us. They abound with actions for personal slander ; but few, if any, actions for slander of title can be found in them. Not so, however, in England; the action there seems a frequent one, and the principles which govern it seem there pretty well established.

The action for slander of title differs in many particulars from the ordinary action of slander. The truth of the words may be given in evidence under the general issue. (Cooke’s Law of Defamation, 27, and cases there cited.) In one particular, the charge of the judge was more favorable to the defendant than the law will warrant. He charged, at the request of the defendant’s counsel, that if the words were not true in point of fact, yet, if the information thereby communicated by the defendant had been given to him, and he had probable cause to believe the same to be true, then a verdict should be rendered for the defendant. This was putting the action upon the same ground on which the action for malicious prosecution rests ; a ground erroneous, but an error committed at the defendant’s request, and one of which he cannot complain. In Pater v. Baker, (3 Man. Gran. & Scott, 831,) Maulé, Justice, lays down what he looks upon to be the true rule. He says, the want of probable cause does not necessarily lead to an inference of malice; neither does the existence of probable cause afford any answer to the action. The action, he remarks, is for slander title, which he pronounces a sort of metaphorical expression. Three things are necessary to maintain the action. The words spoken must be false; they must work an injury to the plaintiff, in respect to his title; and they must be malicious; not malicious in the worst sense, but with intent to injure the plaintiff. (Pitt v. Donovan, 5 Maule & Sel. 639 ; Smith v. Spooner, 5 Taunt. 246.) The case of Pitt v. Donovan, was an action for slander of title, conveyed in a letter to a person about to purchase the estate of the plaintiff, imputing insanity to Y., from whom the plaintiff purchased it, and that the title would, therefore, be disputed, for which cause the person refused to complete the purchase. It was held, that the defendant who had married the sister of Y., who was heir at law to her brother, in the event of his dying without issue, was not to be considered as a mere stranger ; and the question for the jury was, not whether they were satisfied, as men of good sense and good understanding, that Y. was insane, or that the defendant entertained a persuasion that he was insane, upon such grounds as would have persuaded a man of good sense and knowledge of business; but whether he acted bona fide, in the communication which he made, believing it to be true. From this and other cases, it would seem that a person who utters words in the bona fide assertion and maintenance of his own title, is regarded as standing in a more favorable position, in this action, than he who attacks the title of another, without such cause; and Cooke, in his Law of Defamation, p. 23, says, “ As soon as it appears, that the defendant claimed title to the property, to which the slander applies, he is entitled to a non-suitciting Gresham v. Grinsley, (Yelv. 80.) We are not called upon to decidle, in this case, whether the mere claim of title on the part oft a defendant in this kind of action, no matter how false or pre/tended such claim, exempts him from the action; as the defendant here did not claim title himself. We can, however, readily perceive why a person, honestly asserting and maintaining Mis own title, should be protected, though such title should tunfi out to be invalid.

f The judge charged the jury that the question for them to determine was, whether the defendant made the statements to Wheeler bona fide, and under an honest impression of their being true; or whether he made them maliciously, and for the purpose of slandering the title of the plaintiff; that the question whether the words were maliciously or bona fide spoken, depended very much upon their truth or falsity, the circumstances under which they were spoken; whether honestly to caution purchasers, or to alarm them with bug-bears of his own creation.

The evidence of Wheeler abundantly proved the speaking of words derogatory to the plaintiff’s title, and the fact that he forbore to complete his contemplated purchase of the plaintiff, in consequence of the speaking of the words. There is, therefore, no doubt that sufficient words, and a consequence from them sufficiently detrimental to the plaintiff, to sustain the action, are shown, provided malice, the other indispensable ingredient, be established.

This was a question of fact, and was fairly submitted by the judge to the jury. The whole charge proceeds on the ground that if the defendant honestly believed what he communicated to Wheeler, and cautioned him in a fair spirit, he was not liable; but if he made the communication with a different spirit, to prevent the sale to Wheeler, so as to enable the defendant to get the plaintiff’s property himself for less than its value, or from any other impure or corrupt motive, then he must be deemed to have' spoken the words maliciously. We see nothing exceptionable in this view of the charge. It contemplates or holds out sufficient protection to them who speak honestly, with the sole and laudable view of cautioning a friend or acquaintance against purchasing property, the title to which, the informant really believes to be imperfect. The policy ©f common law courts has always been to secure most perfect Ximpunity for words spoken in such a spirit; and we would b\e unwilling in the least degree, to circumscribe this privilege, 'jl'his may, therefore, properly be denominated, what the action for malicious prosecution has justly been called, a hard or difficult action. The plaintiff assumes the burthen of proving, root only special loss, but actual malice, not that malice which tnse law implies in ordinary, actions for defamation.of the person ; but actual, express malice. Still, hard and difficult to be maintained as the action is, where cases occur that give legitimate occasion for it, justice, and the security of property, require that it should be sustained. The infrequency with which it is resorted to, and the difficulty of sustaining it, afford an ample guaranty that it is not apt to lead to abuse.

The defendant contends, that the evidence of James Hall, Alfred W. Waddell, and James Rich, of declarations made to them, was not admissible. The proof of other conversations of the defendant, respecting the same title and subject, was admissible to prove the malice of the defendant; and for this purpose only were they offered and received. (Kennedy v. Gifford, 19 Wend. 296 ; 3 Pick. 370; 13 ibid. 503; Rogers v. Clifton, 3 Bos. & Pull. 587.) The quo animo the words charged were spoken, may be shown by evidence of conversation of the defendant, subsequent to the commencement of the suit.

It is further contended, that the use made by the witness, Wheeler, of his memorandum, was improper and rendered his testimony inadmissible. The court told the witness he could only use the memorandum to refresh his recollection. The witness, to be sure, on his cross-examination, said that in testifying from the memorandum, he read the memorandum, and then gave the words of the paper from recollection as derived from the paper, but the witness did not state that he had no recollection of the conversation, independently of what he derived from his memorandum. Indeed the witness had given evidence enough to show the speaking of the words, before the memorandum was introduced. Before we hear of any memorandum, the witness testified that the defendant told him he had a mortgage on the property for $3000, and that there was a state loan on it for about $3000 ; that there were liens upon it, or bills filed against it by Mr. Reed ; and that, if it could be made to appear that Mr. Wooley had an interest in the lots it would have a bearing upon them, and that he thought it risky to purchase, under the circumstances, of Mr. Kendell. In Robertson v. Lynch, (18 John. 451,) the plaintiff’s clerk testified that he had made the entry of the wool which was the subject of the suit, in the plaintiff’s day book ; but that he could not state the precise quantity, nor the different qualities, without refreshing his memory, by referring to a copy of the entries he had made ; and he was permitted to refer to the entries, and the court sanctioned it. In Foster v. Heath, (11 Wend. 478,) the chancellor said he could see no valid reason why witnesses should not be permitted to inspect written memoranda in court, provided they can, after such inspection, distinctly recollect the facts, independently of the written memorandum or document. The latter branch of this remark was not, perhaps, called for by the case. Greenleaf, in his Evidence, (vol. 1, p. 483,) says, “ though a witness can only testify to such facts as are within his own knowledge and recollection, yet he is permitted to refresh and assist his memory by the use of a written instrument, memorandum, or entry in a book ; but where the witness neither recollects the fact, nor remembers to have recognized the written statement as true, and the writing was not made by him, his testimony, so far as it is founded upon the written paper, is but hearsay ; and a witness can no more be permitted to give evidence of his inference, from what a third person has written, than from what a third person has said.” This we regard as the true rule. If the witness did not write the memorandum, and never recognized it as true, it is but hearsay ; but where a witness made a memorandum of a conversation or transaction, so recently after its occurrence that he knows he then recollected it perfectly and committed it to paper faithfully, we cannot perceive any good principle to prevent him from reading his memorandum. In Rex v. St. Martin’s, Leicester, (2 Adol. & Ellis, 210,) an agent made a parol lease, and entered a memorandum of the terms in a book, which was produced; but the agent stated that he had no memory of the transaction, except from the book, without which he should not, of his own knowledge, be able to speak to the fact, but on reading the entry, he had no doubt that the fact really happened ; it was held sufficient. So, where a witness called to prove the execution of a deed, which he has witnessed, states that he has no knowledge of the fact, except from seeing his signature to the attestation, and says he is, therefore, sure that he saw the party execute the deed, that is sufficient proof of its execution. (1 Greenleaf) 485, and cases there cited.) In Vaughan v. Hubbard, (8 Barn. & Cress. 16,) it was held, that the witness might be permitted to refer to an entry of a transaction, made by him, although he stated that he had no memory of those things, except from the book, but that on reading the entry he had no doubt of its truth. (See also Russell v. Coffin, 8 Pick. 143, 150; Jackson v. Christman, 4 Wend. 277, 282.) We repeat, nothing transpired to violate the rule as laid down by the chancellor in Foster v. Heath, as the main part of the witness’s testimony was given before the memorandum was introduced. Whatever our opinion may be, as to what is the most sound and reasonable rule, this case does not create a necessity, if we had the power or disposition to do so, to depart from the rule as held by the chancellor.

The next inquiry is, whether the judge properly charged the jury that they might give exemplary damages, and rightfully refused to charge that they could only give compensatory as distinguished from exemplary damages. In actions of tort, the jury are the proper judges of the weight and effect of the evidence, and the court will not interfere with the damages found by the jury, unless they appear to be grossly disproportioned to the injury sustained. (Williams v. Cruise, 1 Manning, Granger & Scott, 841.) That was an action for trespass, quare clausum fregit, against a landlord, by injuring the crop of his tenant, by felling and removing timber, without asking leave to enter. The jury assessed the damages at £300, when the value of the tenant’s crop was only £200. The judge charged the jury that the plaintiff was not to be permitted to make a market of his grievance, but that they were not, necessarily, to limit the damages by the amount of pecuniary injury sustained. Beglar, Sergeant, arguendo, cited and commented upon a number of cases going to establish the principle that the jury are, by no means, always, in tort, to measure the damages by the amount of injury sustained. (Perkins v. Proctor, 2 Wel. 386.) In Merest v. Harvey, (5 Taunt. 442,) the jury gave £500 for breaking the plaintiff’s close, treading down his grass and hunting for game, and the court held that the damages were not excessive, though it was probably ten times more than the injury actually sustained. Gibbs, Ch. J. says, “ suppose a gentleman has a paved walk in his paddock, before his window, and that a man intrudes and walks up and down before the window of his house, and looks in while the owner is at dinner—is the trespasser permitted to say, here is a half penny for you, which is the full extent of all the mischief I have done.” ’ And Heath, Justice, mentioned a case, where a jury gave £500 for merely knocking a man’s hat oif, and the court refused a new trial. In Sharp v. Brice, (2 W. B. 942,) De Gray, Ch. J., said that in torts, a greater latitude is allowed to jurors, and the damages must be excessive and outrageous, to require or warrant a new trial. (Edgell v. Francis, 1 Man. & Gran. 222.) On the whole, although we would have been - better satisfied, had the damages been less, we do not feel disposed to interfere with the verdict, on the ground of their excessiveness.

New trial denied.  