8 Wend. 602 | N.Y. Sup. Ct. | 1832
The case does not state what were the words, nor the the nature of the charge they contain ; neither doesitstate what what was theevidence given in de
The first question is whether he should have been permitted, in mitigation of damages, to prove that Brown told him the story which he reported. It was resolved in Northampton’s case, 12 Co. 134, “that if J. S. publish that he hath heard J. M. say that J. G. was a traitor, or thief, in an action of the case, if the truth be such, he may justify.” In Davis v. Lewis, 7 T. R. 17, Lord Kenyon says, “ If a person say that such a particular man (naming him) told him certain slander, and that man did in fact tell him so, it is a good defence to an action to be brought by the person of whom the slander was spoken; but if he assert the slander generally, without adding who told it to him, it is actionable.” The same rule is found in Maitland v. Golding, 2 East, 436, and Woodworth v. Meadows, 5 East, 469’; in such case the words must be given so as to give an action against the person who first uttered them. This is denied to he law by this court, in Doyle v. Lyon, 10 Johns. R. 447. Kent, Ch. J. says, “ Words of slander, with the name of the author, may be repeated with a malicious intent, and with mischievous effect;” the slander may derive all its force from the charcter of the person who repeats it and the author may be utterly irresponsible. In the case of Woodworth v. Meadows, the boy who made the complaint, and told the story, was only nine years of age; of what avail is a right of action against such an originator ? In the case of Doyle v. Lyon, it was established that the publisher of a libel, with the name of the author, was liable to an action, notwithstanding the name of the author. In Lewis v. Walton, 4 Barn. & Ald. the doctrine of Northampton’s case is qualified to a publication on a fair and justifiable occasion, without malice. It is not contended in this case, that the fact offered to be proved was a justification, but only a circumstance in mitigation ; when the slander was published no name was given. It is in that respect like the case of Mills and wife v. Spencer and wife, Holt, 533 ; 3 Comm. Law R. 177; the defendants had pleaded according to Northampton’s case and the others referred to that a certain person had communicated the slander, and that the name had been given at the time of speaking the words.
The second point is, that the judge erred in excluding reports. On this point I shall not enter into any argument, the question is settled in this court; Matson v. Bush, 5 Cowen, 499; Root v. King, 7 id. 613; 6 Mass. R. 514 ; 4 Wendell, 659, and Gilman v. Lowell, ante, 673. 3. The third point raised at the trial was not insisted' on upon the argument, as even if wrong, no injury was sustained; it was wrong, so far as it was admitted to sustain the action, and right, so far as to prove malice. 4. Words were received to prove malice, which were spoken more than two years before suit brought. It is stated in Buller’s Nisi Prius, p. 7, that after the plaintiff has proved the words as laid, he may give evidence of other expressions made use of by the defendant as proof of his ill will towards him. The cases in England on this point are nisi prius decisions. Words not laid are given in evidence, not to sustain the action, it is said, but to shew malice, the quo animo, the words laid in the declaration were spoken; and in this point of view it is immaterial whether they are actionable or not, provided they shew malice. In some of the cases the plaintiff was confined to words
I am of opinion that a new trial should be denied.