¶1I am under the necessity of differing from a majority of the court, upon the competencyof Samuel North, to prove the information given to the defendant by Stanley. I concur in the opinion, that the plaintiff ought not to have been nonsuited on the ground taken by the defendant’s counsel. I shall not enter upon the question of excessiveness of damages, and desire to be understood, as neither denying or supporting the doctrine advanced by a majority of the court upon that point, as applicable to the case before us.
¶2The only point I mean to discuss or decide is this; was North a competent witness to prove the declarations made by Stanley to the defendant?
¶3I understand my brethren to concede, that had Stanley himself been offered as a witness to prove the same facts, he would have been admissible to prove them. Of this I think there can be no doubt.
¶4Upon a consultation of the twelve judges in tire case of Smith v. Richardson, (Willes, 20.) it was agreed, that in actions of slander, malice was the gist of the action, and that evidence showing the manner and occasion of speaking the words, and that they were not spoken maliciously, had always been admitted, and that what could not be pleaded, might be given in evidence, in mitigation of damages. By a parity of reasoning, this doctrine equally applies to actions for libels; at all events, so far as respects the question of damages. To the same point may be cited the opinion of Chief Justice Tilghman, (1 Binney, 90.) which I consider entitled to great respect, from the high legal reputation of that distinguished judge.
¶5*54Stanley’s declarations to the defendant were offered to be prcr ved, with the view of showing to the jury, that the defendant had an additional motive for believing that the publication, which was the foundation of the suit, and extracted from the Public Advertiser, had been, in fact, published in the plaintiff’s paper.
¶6This evidence was offered, to show quo animo the defendant republished the extract. If Stanley’s information to the defendant induced him to believe the extract he published had been published in the plaintiff’s paper, then it went so far to show that his intention in the republication was not malicious.
¶7It is perfectly immaterial whether Stanley stated to the defendant the truth or not. The question is, did he make the statement, and had the defendant a right to believe him. The impression actually existing on the defendant’s mind, at the time of the publication, was the gist of the inquiry.
¶8Now if North was present, and could swear (and he was offered for that purpose) that he heard the defendant make the inquiry of 'Stanley, whether he had seen the extract, published in the Public Advertiser, in the plaintiff’s paper, and heard Stanley say he had, North is as competent a witness to prove that conversation as Stanley. I repeat it, the point of the inquiry was, under what impressions did the defendant publish the libel.
¶9The mistake into which the plaintiff’s counsel have fallen is this: they have considered North as coming to prove a fact by hearsay, overlooking the circumstance, that the fact to be proved, was the state of the defendant’s mind when he published the libel. The rule of law excluding hearsay evidence does not' apply to this case. When a fact is to be made out, it must be proved, either by direct evidence of the existence of the fact, or by circumstances which go to establish the fact, and there hearsay is inadmissible, in general. Here North, if he heard the question and answer, is an original witness, as to the fact offered to be proved. He could relate the question and answer, as well and as faithfully, for aught we know, as the person who held the conversation.
¶10The defendant’s counsel, in offering to prove by North what Stanley said, did not offer it as evidence to prove the fact that Stanley had seen the extract in the plaintiff’s paper, but only to prove that the defendant had been so informed, and was influenced by that information.
¶11An agent who makes a bargain, may be a witness for or against the principal, in relation to the terms of "the bargain; but if it be proved that he was an agent for the party, what he said in relation *55to the contract may be proved by any one, on the principle, that his words being part of his acts, are admissible against his principal. (Peake, 18. 7 T. R. 668.)
¶12There is no force in the objection, that Stanley is a better witness than North; for aught we know, North might have stated that he went with Stanley to the defendant’s, that he remained constantly by his side, that he heard all that was said, and that he went away with him. To indulge the idea that the conversation was the result of preconcert, is presuming immoral conduct in the defendant or Stanley, and is against that benign principle of jaw, that odiosa non sunt prcesumenda.
¶13Stanley was as much in the power of the plaintiff as of the defendant, and if the conversation was the result of artifice, the' plaintiff might have called him to prove it.
¶14I am fully satisfied that North’s testimony ought to have been admitted, and that for this cause, there should be a new trial, with costs to abide the event of the suit.
¶15Yates, J. was of the same opinion-.
¶16Motion denied.