#### YOUNG, BY HER NEXT FRIEND, *v.*SLEMONS.

Slander — the tale of another — current report — words, of concern — habit of slandering— damages.

It is no justification to the slanderer, that another told him what he published, unless at the time of publication, he gave his author. In such'case he must plead it specially.

A current report of the truth of the matter spoken of, occasioned by facts connected with the plaintiff, may be shown to satisfy the jury that the words we're spoken in concern, or of idle curiosity, referring to the rumor, and will mitigate the damages.

It is not competent for a slanderer to rely upon his own notorious habit of slandering people, in mitigation of damages.

Slander. The declaration set forth a variety of words, the principal ones were,‘Dinah Young is a whore — she has slunk a young one — she has had a young one — if my wife was ever in that way, she is.’ Plea not guilty and issue.

*James Hibbs*testified, that he was going to Young’s to buy a cow, and was talking with the defendant about it. tie said Young had no cow; but had a heifer. Witness reckoned that was Dinah, for she was like for a calf. Defendant said he had heard she was like to have one; but it was slunk — she had lost it, and would have to take the bull again.

*William Bryant.*— Defendant said it was talked of that Dinah was like to have a child, but had lost it, and the women ought to inquire into it.

*Charles McFaddeh.*— Defendant said, Dinah was not with child, nor would she be before she went to bull again. If she would request *125him, he would give her a jump; as he thought himself a sure foal-getter; but he would not unless she requested it.

*James Huston.*— Defendant, in March, 1831,' said to me, he expected I would be at the grunting frolic to-night at Young’s — he had heard from her lately and she was worse. If my woman ever was in that way, she was.

*Peter Spring.*— -Heard defendant say *she was so*like to have one . — was so as much as his wife was. He did not believe in having the dropsy, and getting over it in one night. Heard defendant talk about the cow. to Ilibbs. He’said, Peter, she has slunk .calf, and won’t be with calf "again, until she take the bull again. Hibbs asked, if Dinah? Defendant said, not talking about people, but cattle, and turned away. At another time, after they threatened to sue, the defendant said, if they did not let him alone, he would have it tore up from the foundation — he would have a jury of women, and they would have her to the state prison, and he would bet his colt against twenty dollars, she would go to the state prison. He would rather have a dozen young ones, and raise them handsomely, than one and make away with it.

*Polly Spring,*was at defendant’s house, and they were talking about having a child at Young’s house. Defendant said no such thing, for that the child had never seen daylight. He said, there were a number of old women at Young’s, and one of us said a child had been heard to cry, and then he said no such thing, &c. as above.

It was proven, also, that the plaintiff had taken cold in the fall, which affected1 her catamenial discharges. That she was swollen, and continued so, and unwell until spring, during which time, the general report was that she was-with child. A physician attended her, and prescribed for her, as having a cold. In the spring, she recovered suddenly, and the swelling went away.

It was admitted by the defendant’s counsel, *that the plaintiff was not with child.*

*Dewey*and *Cowan,*for the plaintiff.

*Stokely*and *Beebe,*for the defendants,

argued to the jury. They contended that the defendant only spoke of a report under a general misapprehension, and was, moreover, though hot quite non compos, of a vulgar and inventive turn of mind, of general notoriety, so that his talk was no slander.

Wright, J.

to the jury. There is no dispute with the counsel, but the proof establishes the fact of the speaking by the defendant of the plaintiff words which imputed to her want of chastity, as charged in the declaration, and the only question for you is the *126amount of damages the plaintiff shall recover. It is no justification to the slanderer that another told him what he spoke, unless at the time of speaking he gave his author; and in such case, if the defendant would avail himself of that defence, he must plead it specially. There is no such plea in this case. If you are satisfied, however, that it was currently reported in the neighborhood of the plaintiff’s residence, that she was with child, founded upon her sickness, and the appearance of her form; and that the defendant, in speaking of it, only alluded to the report as such, or as expressing regret; those circumstances will go far to negative the presumption of malice, and to reduce the damages. But if, on the other hand, the prevalence of the report was only seized upon by the defendant as the occasion for gratifying his malignant purpose against the plaintiff, it will aggravate the damages. You should scan the testimony with that view. The threats of punishment in the penitentiary, &c. are relied upon as showing the defendant actuated by malice, not by mere idle curiosity or concern for the morals of society; you should consider it.

The reliance by the defendant’s counsel, upon the vulgar habits and general reputation of their client, cannot avail him. It would burlesque judicial proceedings to establish the proposition, that a man, by commencing a vulgar, slandering habit of talking of his neighbors, and continuing in it until he becomes notorious, and until he has established a general reputation for such talk, should thereby acquire a legal right to slander others, and be exempt from liability for bis slander. We think the case is one, either for compensatory or exemplary damages.

Verdict for the plaintiff *$250,*and judgment.