TATLOW vs. JAQUETT, 1 Harr. 333

The Court. The matter in relation to the cloth does not amount to a charge of larceny. The witness proves the charge to have been that Tatlow found the goods along the road and secreted them. The proof on this subject comes on the deft, by surprise.

Not being laid in the declaration he had no opportunity of justifying, nor of pleading that he merely repeated words spoken by another; and, as they are now given in evidence to aggravate the damages by showing malice, the deft, may rebut the imputation of malice by proof either of the truth of the words or of the innocent manner of his speaking them, as that he repeated what he heard from another, and gave his authority. Where a man hears a slander he may repeat it if he does so in the same words and gives his author at the time. 2 Stark. 879, 875.

This is the settled rule of law whether reasonable or not, and we do not here pretend to defend its reasonableness; but it is for the jury to say whether Jaquett gave the Shiverys as his authors on all occasions when he repeated and gave circulation to the slanderous charges laid in the declaration; and whether he confined himself on all such occasions precisely to what he had heard from them. It is not enough that others told facts or circumstances to Jaquett from which he might infer larceny; he must prove that another told him the same thing which he has repeated.

It is not now denied that the words were spoken; and, if the plea of justification has failed, as in our opinion it has, the plaintiff is entitled to recover. If he has really been injured in his reputation or character by these slanders; or the deft, circulated them maliciously and wantonly, for the purpose of so injuring him, the jury are at liberty to give exemplary damages for the sake of public example and warning to others. The plff. had a verdict for @670. Bayard, Rogers and Read, junior, for plaintiff. Wales and Booth for defendant.

On the demurrer to third plea— Booth said, the question is not whether the matter in this plea might not have been given in evidence under the general issue; but whether it may not be pleaded specially. And he cited Gould. 328. 1 Saund. 131, n; 1 Chitty Pl. 488; 4 Coke 14, 12. Bayard. The party here has pleaded the general issue: he cannot also plead it specially. There are cases where a man may plead a matter specially, or give it in evidence under the general issue, but he can never do both. In all cases of justification the party must justify the words and not the effect of the words. 7 Cowen, 38. 11 Johns.

Rep.; 10 Johns Rep. 291. The court sustained the demurrer.