194. But, as has been suggested, where slanderous words are spoken, and the author given, a defendant may still be guilty of slander.1 A defendant cannot justify the repetition of slanderous words, by merely proving that, when he repeated them, he stated that he had heard them from another whom he named; but he must also prove, that he repeated them upon a justifiable occasion and with justifiable intentions, and believed them to be true.2 And a plea of repetition must show, that the defendant at the time disclosed a certain cause of action against another person, by naming him at the time and giving the precise words used; that such person was liable to the action; that the defendant believed the charge to be true; and that he repeated it on a justifiable occasion. So it is said, when the repetition of slander is unlawful, for want of these palliating circumstances, it is not an ordinary or necessary legitimate consequence of the original act of uttering the slander, and cannot be used to make out the relation of cause and effect between the original slander and the effect attributed to it; which injury might not have happened but for the unjustifiable and illegal interference of another. Hence it is well settled, that an oral slander, repeated by one naming his informant, is justifiable or not, according to the intention and motives of the person repeating it.5 Unless it appears that a party acted without malice, or if he did not believe the charge to be true, he is not justified in repeating a slanderous charge, although he names the author at the time. The quo animo with which the charge is repeated is the controlling consideration. (a)

1 Sexton v. Todd, Wright, 317; Evans v. Smith, 5 Mon. 363; Miller v. Kerr, 2 McCord, 285; Austin v. Hanchet, 2 Root, 148.

M'Pherson v. Daniels, 5 M. & Ry. 251; 12 Barb. 657.

8 Larkins v. Tarter, 3 Sneed, 681. Olmstead v. Brown, 12 Barb. 657.

5 Johnston v. Lance, 7 Ired. 448; Dole v. Lyon, 10 Johns. 447.

6 Cummerford v. McAvoy, 15 Ill. 311; Jones v. Chapman, 5 Blackf. 88.

(a) But the following instruction, asked for by the plaintiff, was rightly refused, as the report might not have been slanderous: "If the defendant gave circulation to a report maliciously against the plaintiff, it will not jus

195. It has already been suggested, that, in reference to the particular ground of defence or justification which we

tify him, even if he gave his author at the time." Abrams v. Smith, 8 Blackf. 95.

So the following instruction, asked for by the plaintiff, was also refused : "A person, who gives currency to a slanderous report, does it at his peril; and if in this case the defendant, by repeating the words, gave currency to the report conveyed by the words in the declaration, (not covered by the demurrer,) he was bound to justify and prove them true, or else he cannot justify the speaking of them; and malice is inferred in the speaking." Held, that the repeating or first speaking of slanderous words may be often justified, without proving them to be true. Also, that malice is not always inferred from the speaking of words, which, unexplained, are actionable. Also that the Supreme Court, not being informed of the circumstances under which the words mentioned in this instruction were spoken, must presume the circumstances to have been such as justified the refusal of the instruction. Ibid.

As has been already suggested, one ground of the general rule, that repetition of a slander, under certain circumstances, is not actionable, is, that the plaintiff has his more direct and appropriate remedy against the originator of the slander. And the consideration, whether in a particular case such remedy exists, may sometimes determine the validity of the defence; more especially if connected with the other grounds already referred to. Thus, in an action for words spoken of the plaintiff in his trade, importing a direct assertion made by the defendant, that the plaintiff was insolvent, the defendant pleaded, that one T. W. spoke and published to the defendant the same words, and that the defendant, at the time of speaking and publishing them, declared that he had heard and been told the same from and by the said T. W. Held, upon demurrer, that this plea was bad; first, because it did not confess and avoid the charge mentioned in the declaration, the words in the declaration importing an unqualified assertion made by the defendant in those words, and the words used in the plea importing that the defendant mentioned the fact on the authority of T. W. Secondly, because it did not give the plaintiff any cause of action against T. W., inasmuch as it did not allege that T. W. spoke the words falsely and maliciously. Thirdly, because it is not an answer to an action for oral slander, for a defendant to show that he heard it from another, and named the person at the time, without showing that the defendant believed it to be true, and that he spoke the words on a justifiable occasion. M'Pherson v. Daniels, 10 B. & C. 263.

So it has been held to be no defence, that the defendant only uttered the

are now considering, even supposing it to be still recognized, libel and slander do not, as in most other respects, stand on the same footing. The doctrine is well settled, that, in an action for libel, it is no justification, that the libellous matter was previously published by a third person, and that the defendant, at the time of his publication, disclosed the name of that person, and believed all the statements contained in the libel to be true.1 (a) Thus, it is no defence to an action

1 Fidman v. Ainslie, 28 Eng. L. & Eq. 567 Clarkson v. M'Carty, 5 Blackf. 574; Larkins v. Tarter, 3 Sneed, 681;

Crespigny v. Wellesley, 5 Bing. 392; 2
Moo. & P. 695. See Brooks v. Bryan,
Wright, 760.

words of other persons, naming them, if such other persons are citizens of another State, so that they cannot be sued. Scott v. Peebles, 2 Sm. & M.

546.

(a) It was long since doubted, whether a defendant can, by naming the original author, justify the publishing in writing of slanderous words, especially after knowing that they were unfounded. Maitland v. Goldney, 2 E.426.

It was said, "If one repeats, and another writes a libel, and a third approves what is writ, they are all makers of such libel; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty." Regina v. Drake, Holt, 425.

To a declaration for a libel in a newspaper, the defendants pleaded, first, that the libellous matter was a true and correct account of a statement made by A. and B. before a magistrate; and second, that the facts therein stated were true; and the jury found for the defendants on the first plea, and for the plaintiff on the second. Held, that the plaintiff was entitled to judgment non obstante veredicto on the first plea, on the following grounds: 1. The statement, though correct, did not relate to a matter of which the magistrate had cognizance. 2. The defendants had printed and published that which would not have been actionable as oral slander, and consequently were not protected by giving the names of the authors at the time of the publication. 3. Supposing the matter actionable as oral slander, the defendants had not by their plea offered themselves as witnesses to prove the words against the authors. M'Gregor v. Thwaites, 4 Dowl. & Ry. 695.

Where, in an action for a libel, the declaration alleged, that the defendant had composed, written, and published the libellous matter, and it appeared from the libel itself, that the defendant had given references to another work, whence the matter was taken, but which were omitted in the declaration; held, the variance was fatal, inasmuch as the sense of the libel de

against the editor of a newspaper for publishing a libel, though no express malice be shown, that he avowedly copied the article from another specified paper, expressing his disbelief in some of the allegations contained in it, but saying nothing in affirmance or denial of the libellous charges.1

196. Upon the general subject now under consideration it is said, that the repetition of a slanderous report is actionable, and the defendant cannot justify by proving the existence of the report, without also proving it to be true.2 (a)

1 Hotchkiss v. Oliphant, 2 Hill, 510. 2 Hampton v. Wilson, 4 Dev. 468; Smalley v. Anderson, 4 B. Mon. 367;

Hancock v. Stephens, 11 Humph. 507;
Kennedy v. Gifford, 19 Wend. 256.

clared upon was different from that produced in evidence. Cartwright v. Wright, 1 Dowl. & Ry. 230.

In mitigation of damages, the defendant was allowed under the general issue to show, that he copied the statement from another newspaper; but not that it had appeared concurrently in several other newspapers. Saunders v. Mills, 6 Bing. 213.

(a) Upon the point whether such evidence is admissible in mitigation of damages, the authorities are somewhat contradictory. It has been held, that the defendant may prove a general report of the truth of the words spoken, to disprove malice, and in mitigation of damages, but not in justification. Nelson v. Evans, 1 Dev. 9; Morris v. Barker, 4 Harring. 520.

Also, that, if words are spoken as current report, or as expressing regret, that fact may be given in evidence to mitigate damages. Young v. Slemons, Wright, 124.

Thus, in an action for charging the plaintiff, an unmarried woman, with fornication, evidence is admissible in mitigation of damages, that it had become a matter of common and general report that the plaintiff had committed fornication. Case v. Marks, 20 Conn. 248.

But where the plaintiff in such case, after objecting to the testimony offered by the defendant, and after it was excluded by the Court, withdrew her objection, and the defendant notwithstanding neglected to examine the witness on that point, and the plaintiff had a verdict; it was held, that the error of the Court in excluding the testimony was, under these circumstances, no ground for a new trial. Ibid.

In an action brought in Alabama, for calling the plaintiff a hog thief, evidence of a common report that the plaintiff had been accused of that crime in Mississippi, and had run away, is not admissible in mitigation of damages, without showing previously that the plaintiff's general character is bad, and

That a man may slander or libel another as effectually by circulating rumors or reports, or by putting his communica

that such report was believed by his neighbors. Bradley v. Gibson, 9 Ala. 406.

Nor is evidence of such report admissible, in connection with a knowledge and belief of the report by the defendant, to rebut the presumption of malice and in mitigation of damages, unless accompanied by a distinct admission that the charge is false: Ibid.

So, in an action involving falsity, it is not sufficient to authorize a verdict for the defendants on the ground of their belief, that, from the plaintiff's character and particular instances of bad conduct, they believed that he would state a falsehood for the purpose of injuring one he hated or disliked. There should, at least, have been reasonable ground for their belief, in facts proved before the jury and believed by them. Duncan v. Brown, 15 B. Mon. 186.

And it is the prevailing doctrine, that, in an action of slander, common report of the truth of the fact, which the slanderous words assert, is not admissible in mitigation of damages. Scott v. McKinnish, 15 Ala. 662; Bodwell v. Swan, 3 Pick. 376; Fisher v. Patterson, 14 Ohio, 418; Dame v. Kenney, 5 Fost. 318.

Nor the reputation of having committed particular wrongful acts or crimes, and having been convicted of such crimes. Fisher v. Patterson, 14 Ohio, 418.

Thus, in slander, for charging the plaintiff with stealing, the defendant cannot prove under the general issue, in mitigation of damages, that there was a report, in the neighborhood of the plaintiff, that he had been guilty of stealing. Young v. Bennett, 4 Scam. 43.

So, in a case of slander for charging the plaintiff with perjury, the existence of prior reports, charging the plaintiff with the crime imputed to him by the defendant, without any offer to explain their extent or effect upon the character of the plaintiff, is not, under a plea of justification, legal evidence in mitigation of damages. Sanders v. Johnson, 6 Blackf. 50.

And the defendant cannot introduce evidence of what two or three persons had said in relation to the character of the plaintiff. Regnier v. Cabot, 2 Gilm. 34.

Nor evidence calculated to excite a suspicion of the offence charged upon the plaintiff, but falling short of proof. Ibid.

So it is no mitigation of slanderous words, for the speaker to aver that he can prove the truth of the words by a third person. James v. Clarke, 1 Ired. 397.

In an action for the publication of a libel, the defendant asked a news