*249The opinion of the court was delivered by
Redfield, J.It is obvious the jury must find the speaking of the words as alleged, i. e. so many of the same words as go to constitute the sting of the charge, and the truth of all the averments and innuendos necessary to support the action. In order to do this, they must determine whether the defendant, apparently, used the words in their common and obvious signification, or in some ironical, hyperbolical, allegorical or other figurative sense.
In this view, doubtless, the sense in which intelligent and observing witnesses, who were present, and noticed the publication, understood the words, is important to determine the extent of the defendant’s liability ; but it is not conclusive. The defendant is supposed to intend what his words import, and what others understand from them. But he may intend to convey a deeper meaning than is apparent at first blush ; and he may intend less. This depends upon the attending circumstances, gestures, tones, and innuendos, which have a (i most potent oratory ” often, but which no man can describe or imitate. Hence, those who see and hear those incidents, are permitted to state the impression made upon their minds, at the time, on the same ground, I apprehend, that any witness is allowed to state appearances, in any case, where such appearances are, in their nature, incapable of éxact and minute description ; e. g. the health or sanity of a person, at a particular time, in regard to which even unprofessional witnesses are permitted to speak of opinions formed at the time from indications and appearances not susceptible of description.
But, after all, the true test is the same given by Dr. Paley, as a test of the interpretation of promises and contracts, namely, how did the person, speaking the words, expect others, to whom they were addressed, would understand them ? —for by this expectation he must, and ought to be, bound. Now this is a question we can never determine, with absolute certainty, but must resort to such circumstances as are calculated to show what this expectation was.
It is, doubtless, further necessary that it be shown that the bystanders understood the words to convey a slanderous imputation, as malice and damages are both necessary to concur, in order to give a ground of action. So that the mere *250fact that the defendant intended to be understood in a slan* derous sense is not, perhaps, sufficient.
I think it may be safely assumed that the person speaking will expect the hearers to take the words he speaks with reference to all the facts which he names at the time, and as many other facts or circumstances as he may reasonably expect are within their present knowledge. If the speaker has a hidden and secret meaning beyond that, which renders the words either more or less slanderous, and which he has no reason to expect will be communicated to the minds of his hearers by the words which he uses, that secret meaning is not to be taken into the account, either to increase or extenuate the guilt of the defendant.
Thus if the defendant makes a declaration which, in its terms, or with reference to facts which he supposes to be in the recollection of the hearers, is impossible, or, so to speak, felo de se, he expects it will beso received. Hence the numerous decisions in regard to slanderous words of that character — e. g. to say of the plaintiff, “ he is a murderer, he ‘ killed ihy dog” ; he is a thief, he stole my farm or tree” ; “ he is a counterfeiter, and paints miniatures,” &c.
And if the charge is impossible with reference to facts supposed to be in the minds of the hearers, it is the same as if they had been expressed. Hence, in his defence, the defendant is always permitted to show these facts, in order to show in what sense he is liable for using the words. This is the ground of the decision in the case of Van Rensselaer v. Dole, 1 John. Cas. 279. The words were charged to have been spoken, and were proved to have been spoken, wilh reference to the procession at Lansingburgh on the 4th of July, and what was notoriously within the knowledge of the hearers, at the time of the speaking; and the charge was manifestly and absurdly impossible, and even ridiculous, with reference to the known transaction, as understood and acknowledged, both by the defendant and all who heard him. In that case, a Mr. Bird claimed abass viol of the celebrating party, of which the plaintiff was one, and they refused to give it up, and retained it by force, whereupon an affray ensued, and Bird received a dangerous wound. The words , were; that all the party were “ a set of black-hearted high'waymen, robbers and murderers.”
*251There is another class of cases, where the words are ambiguous in their import, like a charge of stealing corn, timber, &.c., which, while growing upon the land, is not the subject of theft, but when secured, may be. And here the same rule is pursued in regard to slanderous words which is adopted in the construction of contracts ; and the condition of the subject-matter, at the time of the alleged taking, if the charge be theft, is permitted to be shown, as the words are supposed to have been spoken, and understood, according to their natural import, with reference to the acknowledged or ascertainable condition of the subject-matter, at the time of the taking, or the speaking of the words. It is upon this ground the case of Dexter v. Taber, 12 Johns. R. 239, should have been decided, and that would have brought the court to the same result they reached by another road, which I should agree with Justice Spencer was one rather darkly defined by established principles, or former precedents. It is on this ground, if any, that the case of Christie v. Cornell, Peake’s N. P. C. 4, must be justified. “ He is a thief, he ‘ stole my beer.” Mr. Selwin puts the case on the same ground with — “ you are a thief, you stole my tree.” Cro. Jac. 114 ; Bul. N. P. 5. That is the only ground of reconciling the case with principle ; and, in that view, it is much like our nisi prizes cases — not, always, very well considered, or very wisely determined, and sometimes, if sustained, it must be by giving them a construction they were never intended to bear.
But in the present case, nothing is more apparant than that there was nothing in the accompanying circumstances, proved or offered to be proved, tending to show, that the defendant could reasonably have expected the hearers to understand his words in a sense different from their natural import. In only one instance, did he allude to the transaction, out of which he alleged the theft arose, and then, in no manner calculated to induce any doubt, whether the plaintiffs were, in fact, guilty of theft. It is quite as easy to steal a “ bed-tick,” as any other thing. The terms he used were not of doubtful import. The condition of the property was not such that theft could not be committed upon it. He neither had any right to expect that those who heard him, knew, nor did they, in fact, know, any such matters in relation to his *252charge, as would induce them to consider that the defendant did not intend to charge the plaintiffs with literal theft.
In regard to the testimony, as tending to mitigate the damages, it was competent, in that view, if it had any such tendency, beyond that which was given to it; but the court think it had not. There was nothing tending to show that the defendant could, at any time, have supposed the plaintiffs intended, secretly and feloniously, to appropriate the bed-tick.
Judgment affirmed.