eration of 600l. It was contended, that John was then under 21 years of age, and a mere trustee to preserve the title in the family against the effects of two sheriff's bonds, in which the father was surety for Charles Lukens, esq. on one of which a judgment was obtained for 2000l. in October term 1784, and on the other for the like sum in October term 1787, and Lukens died insolvent in January 1784; and that another deed for other lands was given to Robert, another son, dated 12th April 1784, in consideration of 300%., though he was then in his 17th year, and lived with his father, who managed his farms in the same manner as before giving the deeds.

To prove these circumstances, and that John had, subsequent to his deed, leased the lands in question from his father, and acted under his direction, the plaintiffs' counsel called the said Robert Dill as a witness, who appeared and submitted to the court, wether under the circumstances of the case, he should be compelled to be

sworn.

The defendant's counsel objected that he was interested in the question now trying. If the plaintiff can succeed in the present suit, he will have still less to encounter, against a younger brother, confessedly under age, when his deed was executed, for a supposed valuable consideration. Besides his declarations may be given in evidence against him in a future ejectment brought for the lands conveyed to him.

It would moreover be a violation of the maxim nemo tenetur prodere seipsum." Peak Evid. 132. If he has accepted from his father a deed for the lands, with a view to defraud creditors, an indictment will lie against him.

E contra it was answered, that it was now settled that the true principle is, where the verdict cannot be given in evidence, either for or against the witness in any other suit, he may be sworn, because he cannot in such case gain or lose by the event of the cause. Bent v. Baker et al. 3 Term Rep. 27. He must be immediately benefitted or injured by the event, before he shall be repelled from giving testimony. Peak Evid. 93, 94. This principle has been so often recognized in this court, that the point has been deemed atrest. The witness's title is not now in litigation; but the question is, whether or not he is a competent witness in the ejectment against his brother.

As to the application of the maxim, we know not, that an indictment would lie against him for accepting his deed, or that any pecuniary loss could flow therefrom, on his being examined here. The court will not anticipate the questions which may be

asked; some may be propounded which may be wholly unexceptionable, and others may be overruled. The superintending authority of the court will be exercised as occasions arise, and will confine the witness to the point in issue. His deed is not attacked, but it is wished to extract from him, that his brother John was the trustee and tenant of his father of the premises, until the time of his death.

The court were divided in opinion, whether the witness was receivable on the ground of interest. Yeates, J. declared himself in the affirmative, and Smith, J. in the negative. But they readily agreed that he was privileged from giving evidence, under the maxim cited. They could not avoid seeing the tendency of his examination, disguise it as you will. The plaintiffs' strong hold was, that the deeds were executed to protect the property against the judgment, which was to ensue in six months, and that the father and sons combined together to defraud the creditors of the former, and to create a trust for his use. If it should even be conceded, that an indictment would not lie against the witness for agreeing to accept this deed, which though void against creditors, might be good against the grantor and his heirs, yet the combination itself was nefarious and immoral, and would justly subject every person concerned in it to ignominy and contempt, and was therefore with in the construction of the maxim, as lately adopted in Respub. v. Gibbs.in bank. The rules of evidence* are founded in reason and

good sense.

To oblige the witness to be sworn under the circumstances of this case, would be in effect compelling him to accuse himself of an immoral act, and a violation of his privileges as a citizen.†

The exception is therefore allowed.

The plaintiff suffered a nonsuit.

Messrs. Duncan and Watts, pro quer.
Messrs. Bowie and Hopkins, pro def.

*The rules of evidence are founded in the charities of religion, in the philosophy of nature, in the truths of history, and in the experience of common life. Per Erskins arguendo, Rex v. Hardy. Trial 207-8.

Pennsylvania constitution, art. 9, § 9. The accused cannot be compelled to give evidence against himself.

Rev. WILLIAM RUNKLE against SOLOMON MEYER and CHRISTIAN

SLECKTUNG.

In a civil action for a libel against a printer, his inserting the name of the author is no justification, though it may go in mitigation of damages.

LIBEL. The defendants published on the 19th September 1800, in the York Gazette, a paper in the German language, at the instance of George Gregor by name, reflecting on the character of the plaintiff, a clergyman of the reformed church of Heidelberg. It charged him among other things, "with having got a cudgelling in Virginia from an inhabitant, whom he persuaded that it was not right to sleep every night with his wife; that she lay alone, and Runkle took the opportunity and came into her room; that the wife gave her husband a sign, and he apprehended him in his roguery and beat him his skin full."

Plea non cul. with leave to justify.

After a long trial, wherein the depositions and examination of forty witnesses were read and given, the defendant's counsel insisted, that printing presses could not be free in this State, according to the provisions of the constitution, if printers could be punished for a publication,inserted at the instance of a person, whom they named in their paper, and who paid for it in the usual course of business. Pennsylvania Constitution, art. 9, sec. 7. They were only responsible in cases where they withheld the real authors, against whom the suit should be brought. Libelling was a species of slander, and all slander should be measured by the same rule. Slander by libel differs only from slander by words, that it is delivered in writing or printing. 2 Espin Dig 240. If one relates a slanderous report of another, and gives his author at the time, and the fact comports therewith, it may be pleaded by way of justification. 7 Term Rep. 17. 12. Co. 133-4. And this doctrine was recognized a few days ago a Lancaster, in Hersh v. Ringwalt. It has been held that an action will lie for a libel, charging the plaintiff having the ich and stinking of brimstone. Villers v. Monsby, 2 Wils. 403. Would it not be an outrage on common sense to say, that if this had been published at the desire of I. S., that the printer should be punished in damages; and that one charging a plaintiff with muder, or gross perjury by oral words, and giving his author at the time, should be dispunishable? An action will not lie against a printer, unless express malice is proved, or it may be fairly inferred from circumstances, as conclealing the real author of the publication, &c. If the plaintiff has been injured, he should look to Gregor, who lives

There the transac-
There the plaintiff

in Fredericktown, and avows the publication. tion alluded to, is supposed to have happened. officiated at the time as a minister of the gospel, and his true character is ascertained. And there only complete justice can be administered.

The court in their charge to the jury, observe, that the insertion of the publication at the instance of Gregor, did not amount to a justification, in point of law, though it might go in mitigation of damages. 2 Atky. 472. 8 Mod. 123. Slanderous words and libels are not measured by the same rules in courts of justice. The offence of a libel is more heinous, as its circulation of the slander is more extensive, and derives too an additional degree of malignity, from its being done premeditatedly. 2 Espin. Dig. 240. 1 Dall. 324. 2 East. 430. Its excuse rests not on the common infirmity of mankind. It is the mark of a depraved and wicked heart. Any written or printed words, which render a man ridiculous, or throw contumely on him, are actionable. But it is otherwise of words spoken; and this distinction has been long settled. 2 Wils. 403-4. Fitzgib. 121, 253-4. Bos. and Pull. 331. The law adapts itself to the usages and habits of mankind, but it cannot be expected to administer to foul malevolence; and hence in the case cited, wherein the party was charged in a copy of verses, with having the itch, a difference obtaind between a libel and words spoken. Our reading does not furnish us with a dictum, much less a solemn adjudication, that a printer is justifiable in dissiminating libellous papers, though he has received a pecuniary compensation therefor in the way of business. But we know that the English judges have laid it down, that writing the copy of a libel, is writing of a libel; and if the law were otherwise, men might write copies and print them with impunity. 2 Salk. 417, 419. It will not be denied, that if one designedly bespatters another's clothes with filth, as he passes the street, though at the instigation of a third person, he would be liable for damages. And shall a printer with his types, blacken the fairest reputation, the choicest jewel we enjoy, and go scot free, merely because he has told the world that the paper is inserted at the request of G. G.? It is true, that there are shades of guilt in this offence, and that the author is more criminal than the printer. The one prepares the poison with malice aforethought, the other administers it to the world. Some instances occur, where the prosecution against the printer has been stopped, on the author's being given up, or avowing himself, but this only shows, that the latter is deemed the greater offender; and the printer may show this in alleviation. 8 Mod. 123. Fortese. 201. 2 Atky. 472. We do not know what difficulties may be interposed in the plaintiff's way

in a suit at Fredericktown. The minds of the congregation may have been much heated in the acrimonious dispute which has subsisted between him and the German clergyman of the same persuasion. It is not necessary in an action for a libel, to prove express malice; if it be slanderous, malice is implied. 1 Term Rep. 111. That the present publication against a clergyman is libellous, no one can doubt.

What has been called the liberty of the press, (1 Dall. 330,) is much misunderstood; and the most erroneous opinions have been formed of the state constitution in this particular. The 7th section of the 9th article of that instrument has provided, that "in prosecutions for the publication of papers, investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. Every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty." Indictment for libels against individuals, where the matter published is improper for public examination, remain in their former state, and the truth thereof cannot be given in evidence. In civil actions at the suit of persons, either in a public or private capacity, the party is answerable in damages, if he cannot verify the charges he has made. This is the present case, and the plaintiff is entitled to a verdict. Of the measure of damages, the jury are the sole judges, under the mass of evidence submitted to their consideration.

Verdict pro quer. for $8 damages, and full costs.

Messrs. Bowie and C. Smith, pro quer.

Messrs. Hopkins and W. Ross, pro def.

Lessee of HENRY WILLIS against ERNST ROW.

One discharged as an insolvent debtor, cannot support an ejectment for lands previously vested in him, though his trustees have not given bond pursuant to the act of 4th April 1798.

EJECTMENT for lands in Newberry township.

The lessor of the plaintiff made title as heir at common law in tail, under the last will of his grandfather, Henry Willis, through his father William Willis. The said William Willis, on the 2d April 1796, sold and conveyed the premises to the defendant's landlords, in consideration of 9007. without having suffered a common recovery, and died insolvent.

It was objected, that the lessor of the plaintiff had on the 9th September 1799, applied to the Court of Common Pleas of