Kent, Ch. J.
The defendant moved for a new trial upon the following grounds:
1. That the plaintiff ought to have been nonsuited at the trial.
2. That the testimony of Samuel North, as to what he heard Stanley say, ought to have been received.
3. That the jury ought to fhave been directed to find for the defendant, or at most but nominal damages for the plaintiff, because the publication was made under a mistake of the fact.
The declaration states, by way of inducement to the libel, that the defendant maliciously intending to bring the plaintiff into public scandal, and to cause it to be believed that he had been guilty of treason, and of promulgating treasonable sentiments, &c. published the libel. The counsel stated that these were averments requisite to have been proved upon the trial, and that for want of showing the existence of the charge of treason, the plaintiff ought to have been nonsuited. The answer is, that they are not such averments, but suggestions stated as mere inducement to the libel. It was not traversable matter any more than the ordinary preliminary suggestions in a declaration in slander, that the plaintiff is of good [49]*49name, fame, &c. The averments requisite to give meaning and application to the libel, must be proved," and were proved in this case. The meaning of the libel, and its application to the plaintiff, were apparent on the face of the paper, and all that was required to support that meaning and that application, was the production of the paper, and the proof of its publication. The meaning imputed to it in the declaration, when the true meaning of the libel, and not the mere inducement to it, is averred, was obvious from the paper itself.
2. The next point is, that the testimony of Samuel North ought to have been received, when he offered to prove that he heard the defendant ask one Henry Stanley, who resided in Ncw-York, whether he recollected the extract, as published in the Public Advertiser, appearing in the plaintiff’s paper, to which Stanley replied, that he did. This point appears to me to be as untenable as the other.
The cases which are the most analogous, are those which were-cited from Binney’s Reports. In Kennedy v. Gregory, (1 Binney, 85.) it was held that the defendant, in an action of slander, might give in evidence, in mitigation of damages, that a third person told him what he related. But it ought to be observed, that in that case the person who gave the information, was the witness offered to prove it. So in the case of Morris v. Duane, (1 Binney, 90. note,) the defendant was allowed to give in evidence, in mitigation of damages, in an action for a libel, a paper containing the libellous charge, which had been in possession of a preceding editor, then dead, and to whose paper the defendant had succeeded as editor. These decisions are certainly entitled to great respect. Perhaps, they have even extended the English rule; and they would have applied, if Stanley himself had been offered as a witness to prove his disclosure to the defendant. But to resort to a bystander to prove what Stanley might have told the defendant, when Stanley was within the reach of the defendant, and could have been produced, is going beyond the cases cited, and would be a dangerous relaxation of the rules of evidence. The established doctrine is, that you must go, if you can, to the source of testimony, and not introduce a copy, when the original is to be had, nor undertake to prove what another person has been heard to say, when that person is a good witness, and can be produced. The testimon}- of Not ih, though not, technically, hearsay evidence* is liable to the same objections; for it is resorting to an inferior or ' [50]*50secondary species of proof, without necessity; and, permit me-here to add, that no one thing, in the administration of public justice, concerns more seriously the security of life, liberty, and property, than a firm disposition in the courts to adhere to the established rules of evidence. Why not produce Stanley to testify what he told the defendant, instead of resorting to a bystander who heard what he said ? The latter evidence cannot be relied on, as equally original and accurate. Stanley knew what he meant to communicate, which- the other could not know. North might not have heard correctly what he did say, or all that he said. Another part of the conversation which preceded or followed, might have explained the words which North heard, or varied their meaning. North might have misunderstood Stanley, or not have known whether he was in earnest, or was so understood by the defendant, or whether the conversation was or was not the result of a previous agreement between the defendant and Stanley, for the very purpose of providing for this case. Hearsay testimony is, from the very nature of it, attended with all such doubts and- difficulties, and it cannot clear them up. “ A person who relates a hearsay, is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities : he intrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his dead or absent author.” It is against sound principle, and would at once awaken distrust, for a party to resort to a secondary species of evidence, So long as the original and primary evidence exists and can be produced. The plaintiff, by means of this species of evidence, would be taken by surprise, and be precluded from the benefit of a cross examination of Stanley, as to all those material points which have been suggested as necessary to throw full light on his information. The testimony of North, as to what he heard Stanley say, could not afford the degree of proof which the fact might allow, nor admit those inquiries which conduce to a full and satisfactory explanation of what was related, and it was therefore properly rejected.
3. The last point is, that the damages ought to have been nominal only, because the publication was made under a mistake of the fact. The quo animo with which the libel was published, was altogether a matter for the consideration of the jury; and the circumstances which might tend to aggravate or extenuate the damages, and lessen or increase the degree of malice which the law [51]*51imputes to the publication of every unjustifiable libel, were no -doubt urged to the jury upon the trial, as they have since been presented to this court, upon the argument of the present motion. The question of damages was within the proper and peculiar province of the jury. It rested in their sound discretion, under all the circumstances of the case, and unless the damages are so outrageous as to strike every one with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality or corruption, we cannot, consistently with the precedents, interfere with the verdict. It is not enough to say, that in the opinion of the court, the damages are too high, and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries.
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Kent, Ch. J.
The defendant moved for a new trial upon the following grounds:
1. That the plaintiff ought to have been nonsuited at the trial.
2. That the testimony of Samuel North, as to what he heard Stanley say, ought to have been received.
3. That the jury ought to fhave been directed to find for the defendant, or at most but nominal damages for the plaintiff, because the publication was made under a mistake of the fact.
The declaration states, by way of inducement to the libel, that the defendant maliciously intending to bring the plaintiff into public scandal, and to cause it to be believed that he had been guilty of treason, and of promulgating treasonable sentiments, &c. published the libel. The counsel stated that these were averments requisite to have been proved upon the trial, and that for want of showing the existence of the charge of treason, the plaintiff ought to have been nonsuited. The answer is, that they are not such averments, but suggestions stated as mere inducement to the libel. It was not traversable matter any more than the ordinary preliminary suggestions in a declaration in slander, that the plaintiff is of good [49]*49name, fame, &c. The averments requisite to give meaning and application to the libel, must be proved," and were proved in this case. The meaning of the libel, and its application to the plaintiff, were apparent on the face of the paper, and all that was required to support that meaning and that application, was the production of the paper, and the proof of its publication. The meaning imputed to it in the declaration, when the true meaning of the libel, and not the mere inducement to it, is averred, was obvious from the paper itself.
2. The next point is, that the testimony of Samuel North ought to have been received, when he offered to prove that he heard the defendant ask one Henry Stanley, who resided in Ncw-York, whether he recollected the extract, as published in the Public Advertiser, appearing in the plaintiff’s paper, to which Stanley replied, that he did. This point appears to me to be as untenable as the other.
The cases which are the most analogous, are those which were-cited from Binney’s Reports. In Kennedy v. Gregory, (1 Binney, 85.) it was held that the defendant, in an action of slander, might give in evidence, in mitigation of damages, that a third person told him what he related. But it ought to be observed, that in that case the person who gave the information, was the witness offered to prove it. So in the case of Morris v. Duane, (1 Binney, 90. note,) the defendant was allowed to give in evidence, in mitigation of damages, in an action for a libel, a paper containing the libellous charge, which had been in possession of a preceding editor, then dead, and to whose paper the defendant had succeeded as editor. These decisions are certainly entitled to great respect. Perhaps, they have even extended the English rule; and they would have applied, if Stanley himself had been offered as a witness to prove his disclosure to the defendant. But to resort to a bystander to prove what Stanley might have told the defendant, when Stanley was within the reach of the defendant, and could have been produced, is going beyond the cases cited, and would be a dangerous relaxation of the rules of evidence. The established doctrine is, that you must go, if you can, to the source of testimony, and not introduce a copy, when the original is to be had, nor undertake to prove what another person has been heard to say, when that person is a good witness, and can be produced. The testimon}- of Not ih, though not, technically, hearsay evidence* is liable to the same objections; for it is resorting to an inferior or ' [50]*50secondary species of proof, without necessity; and, permit me-here to add, that no one thing, in the administration of public justice, concerns more seriously the security of life, liberty, and property, than a firm disposition in the courts to adhere to the established rules of evidence. Why not produce Stanley to testify what he told the defendant, instead of resorting to a bystander who heard what he said ? The latter evidence cannot be relied on, as equally original and accurate. Stanley knew what he meant to communicate, which- the other could not know. North might not have heard correctly what he did say, or all that he said. Another part of the conversation which preceded or followed, might have explained the words which North heard, or varied their meaning. North might have misunderstood Stanley, or not have known whether he was in earnest, or was so understood by the defendant, or whether the conversation was or was not the result of a previous agreement between the defendant and Stanley, for the very purpose of providing for this case. Hearsay testimony is, from the very nature of it, attended with all such doubts and- difficulties, and it cannot clear them up. “ A person who relates a hearsay, is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities : he intrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his dead or absent author.” It is against sound principle, and would at once awaken distrust, for a party to resort to a secondary species of evidence, So long as the original and primary evidence exists and can be produced. The plaintiff, by means of this species of evidence, would be taken by surprise, and be precluded from the benefit of a cross examination of Stanley, as to all those material points which have been suggested as necessary to throw full light on his information. The testimony of North, as to what he heard Stanley say, could not afford the degree of proof which the fact might allow, nor admit those inquiries which conduce to a full and satisfactory explanation of what was related, and it was therefore properly rejected.
3. The last point is, that the damages ought to have been nominal only, because the publication was made under a mistake of the fact. The quo animo with which the libel was published, was altogether a matter for the consideration of the jury; and the circumstances which might tend to aggravate or extenuate the damages, and lessen or increase the degree of malice which the law [51]*51imputes to the publication of every unjustifiable libel, were no -doubt urged to the jury upon the trial, as they have since been presented to this court, upon the argument of the present motion. The question of damages was within the proper and peculiar province of the jury. It rested in their sound discretion, under all the circumstances of the case, and unless the damages are so outrageous as to strike every one with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality or corruption, we cannot, consistently with the precedents, interfere with the verdict. It is not enough to say, that in the opinion of the court, the damages are too high, and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries.
We can judge better of the legal and constitutional effect of a verdict, in a case like this, by recalling to our attention some of the adjudged cases.
In Hawkins v. Sciel, 20 Jac. I. (Palm. 314.) the plaintiff recovered 15 0Z. in slander, for calling him a bankrupt, and the court thought 50Z. enough; but, upon solemn advice, they would not reduce the damages, nor change the course of the law, and resolved that it was better to leave such matters to the jury. The case of Townsend v. Hughes, 28 Car. II. (2 Mod. 150.) was an action of scandalum magnatum, and the jury gave 4,000Z. damages. A motion was made for a new trial, on account of the excessive damages ; but the court denied the motion, and said that the jury were the judges of the damages; and one of the judges observed, suppose the jury had given a scandalous verdict for the plaintiff, as a penny damages, he could not have obtained a new trial in hopes to increase them, neither shall the defendant in hopes to lessen them.” If the court could not say that these damages were excessive, they can hardly say so in any case of slander, and yet the court of C. B. of which Lord Camden was one, observed, near a century afterwards, that that case had never been contradicted or denied to be law. In Roe v. Hawkes, 15 Car. II. (1 Lev. 97.) the court made the like decision, where the damages, in a common case of slander, were 700Z. These were old cases, and Lord Camden says, (2 Wils. 249.) that there seemed to be only one case before his time where a new trial was granted in actions for torts, and that was the case of Chambers v. Robinson, (1 Str. 691.) where the jury gave 1,000Z. damages in an action for a malicious prosecution. And he observed, that the court. [52]*52were free to say, that case was not law, as the reason assigned for the new trial, which was to give the defendant a chance of another jury, would -be digging up the constitution by the roots. But in the early part of the reign of Geo. III. and prior to our revolution, there is a series of cases relative to the power of the jury over the damages, in actions for torts, which are more interesting, because, while they support with just spirit and firmness the constitutional prerogative of the jury, they define the limits of their power with greater precision, and settle it upon sound principles. The courts say there is a great difference between cases of damage's which can certainly be seen, and such as are ideal, as between assumpsit, trespass for goods, See. where the sum and value may be measured, and actions of false imprisonment, malicious prose.cutjon, slander, and other personal torts, where the damages pre matter of opinion, The law has not laid down what shall be. the measure of damages in actions of tort. The measure1 is vague and uncertain, depending upon a vast variety of causes, facts and circumstances, as the state, degree, quality, trade, or profession of the party injured, as well as of the party who did the injury. The court cannot interfere, unless the damages are apparent, so that they can properly judge of the degree of the injury. Generally, in such cases, they cannot say. whether 500Z. was too much, or 50Z. would have been too little. The damages, therefore, must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line ; for they have no standard by which to ascertain the excess. ’ These are the principles which have been laid down by the most eminent judges who have presided in the English courts, since the year 1760; and by which they have uniformly governed themselves in cases in which the damages would appear to have been, beyond all comparison, more excessive than in the present case. (Leeman v. Allen, 2 Wils. 160. Boardman v, Carrington, 2 Wils. 244. Wilford v. Berkley, 1 Burr. 609, Redshaw v. Brook, 2 Wils. 405. Bruce v. Rawlins, 3 Wils. 60, Huckle v. Money, 2 Wils. 205. Leith v. Pope, 2 Black. Rep, 1327. Gilbert v. Bartenshen, Cowp. 230. Duberley v. Gunning, 4 Term Rep. 651.) In one case, in an action for crim. con. the jury gave 5,000Z.; and Lord Ken, yon said, he would have been satisfied, jf only nominal da* [53]*53'mages had been given, yet he knew of nq case that would authorize the court to interfere, and he said he had not courage enough to make the first precedent. The doctrine contained in these cases has been acknowledged to be sound law, and has been adopted and sanctioned by the supreme court of Massachusetts, in the case of Coffin v. Coffin, (4 Tyng, 1.) and by this court, in the case of Tillotson v. Cheetham, (2 Johns. Rep. 63.)
There is no pretence to say, that the amount of the verdict, in the present case, is so extraordinary and extravagant, as to justify the court, under the above cases, to set it aside. The precedent would be new and dangerous.
I am accordingly of opinion, that the motion, on the part of the defendant, be denied.
Thompson, J. and Van Ness, J; were of the same opinion.