Lewis v. Ingersoll. could not estop his principals from insisting upon what was true by any act or promise outside of his authority. Interest at the rate of seven per cent. was properly allowed. The lands were situated in Broome county in this State, and the securities were there executed. There is nothing to indicate that a rate of interest different from that allowed by the laws of this State was intended by the parties. In such a case the law of the place where the contract is made governs as to the rate of interest. 3 Kent Com. 450, 3 ed.; Story on Confl. of L. § 296. There is no question of any usurious intent in the case to affect the application of this general rule. It does not appear from the case where those securities were made payable. It is plain, however, that they were New York and not Pennsylvania contracts. The only remaining question on the case is whether the letters of Eldredge to Miller of September 30, 1834, and of February 7, 1838, and the letter and statement of the amount due upon the bond and mortgage of August 20, 1834, to Eldredge and Collier, were admissible in evidence, against the plaintiffs' objections. Collier and Eldredge were the obligors and mortgagors, and were seized in fee of the premises. The plaintiff Lewis derived title immediately from them, and of course claimed under or through them, subject to this mortgage debt. The land in his hands was bound for whatever amount remained due and unpaid on the bond and mortgage. The question at issue, to be tried, was, whether the debt had been paid. The plaintiff affirmed that it had been; and the burden of proving the fact rested upon him. These letters and statements were a part of the defendants' evidence to show that the payment claimed by the evidence to have been made had never been made. There was no question between the parties as to anything except this item of three hundred and twenty-six dollars. Had these letters been offered as the mere declarations or statements of Eldredge, independently of his oral evidence, and as a substitute for it, they would, I am inclined to think, have been inadmissible as evidence, as being the declaration of a former owner of the land and the principal debtor, against a subsequent purchaser for value subject to the indebtedness. But they were not so offered and received. They were produced and identified by Like v. McKinstry. the witness Eldredge on his cross-examination. He had forgotten the facts therein stated, but was able to say in substance that the letters were undoubtedly true at the time they were written, although he was then unable to remember them. Under these circumstances it seems to me the papers were admissible as auxiliary to the testimony of Eldredge, and as memorandums made by him, of a then existing state of facts, within the cases of Halsey v. Sinsebaugh, 15 N. Y. 485; Russell v. Hudson River R. R. Co., 17 Id. 134, 136; Guy v. Mead, 22 Id. 462. But in any event it is difficult to see how the admission of these papers could have worked any possible injury to the plaintiff. There was no dispute that the amount claimed as a payment was paid to Virgil Whitney, and unless it was paid over by him to the defendants or their agents, it could not operate as a payment. Aside from that amount in the hand of Virgil Whitney, there was no pretense that the debt had been paid. The plaintiff was able to show this money paid to Virgil, but nothing further. He did not, therefore, made out any case, even prima facie, and the defendants were clearly entitled to judgment, irrespective wholly of the evidence furnished by these letters. They do not affect the question of the authority of Virgil Whitney to receive the money for the defendants in any way, and clearly were not introduced or used for that purpose. I am of the opinion, therefore, that the judgment is right, and should be affirmed. All the judges concurred, except H. R. SELDEN, J., who was absent. Judgment affirmed, with costs. LIKE v. McKINSTRY. December, 1868. Affirming 41 Barb. 186. Slander of title to personal property, as well as to real property, is actionable. It is not enough, however, to prove that the words were false and injurious, but malice must be shown. Like v. McKinstry. If one who warned purchasers at an auction sale that he claimed title to the thing sold, when in truth he had none, in so doing acted under advice of counsel, after disclosing to counsel all the material facts, this would repel all idea of malice; but if there is some evidence that he knew he had no title, and if he did not truthfully disclose the facts to counsel, a finding of malice will be sustained. Peter J. Like sued William H. McKinstry, in the supreme court, for slander of title. The plaintiff having hired the defendant's farm from April 1, 1861, to April 1, 1862, had, in the fall of 1861, sown rye on the farm, and he claimed that the crop was his; that he had the privilege of harvesting the rye, and of using the hay-press to press the straw, and of gathering from the farm slat-wood wherewith to inclose or bind the straw when pressed. On March 10, in pursuance of previous notice, the plaintiff had an auction upon the premises, at which he put up the growing rye for sale, and sold it for three hundred and eightyone dollars and eighty-seven cents. The alleged slander consisted in the public declaration made by the defendant at the auction sale, that he forbade the sale of the rye, and that the rye was his; by reason of which the plaintiff alleged, the rye was sold for a less sum than its real value, and that he thereby sustained damage. For that the jury found a verdict for the plaintiff for sixty dollars. The supreme court, at general term, on appeal from an order denying a new trial, and from the judgment, held,—on the authority of 1 T. R. 512; Co. Litt. 197 b; Ashley v. White, 2 Ld. Raym. 953; Winslow v. Greenbank, Willes, 577; Vaug. 47, 253; Broom's Com. 514, 761; Stark. on Sl. 202; Newman v. Zackary, Aleyn, 3; Bac. Abr. 76 b; 1 Com. Dig. 370, c. 1; Ingram v. Lawson, 6 Bing. N. R. 212; Hill v. Ward, 13 Ald. 310; Hargrave v. Le Britten, 4 Burr. 2422; Tobias v. Harland, 4 Wend. 537; Linden v. Graham, 1 Duer, 670;-that the action would lie in respect to personal as well as real property; and sustained the recovery on substantially the same grounds as the opinion in this court. Defendant appealed. J. C. Newkirk, for defendant, appellant.-That the contract was void, cited Broadwell v. Getman, 2 Den. 87; Thomas v. Dickinson, 14 Barb. 90; Baldwin v. Palmer, 10 N. Y. 232. Like v. McKinstry. That the forbidding the sale was a revocation of the license, Houghtaling v. Houghtaling, 5 Barb. 379; Miller v. Auburn, &c. R. R. Co., 6 Hill, 61; Mumford v. Whitney, 15 Wend. 380; Cook v. Stearns, 11 Mass. 533; Fentinam v. Smith, 4 East, 108; Pierrepont v. Barnard, 6 N. Y. (2 Seld.) 279.* That as defendant had some ground for his claim the action could not be sustained. Bailey v. Dean, 5 Barb. 297; Kendall v. Stone, 2 Sandf. 269; Stark. on Sl. 202, 203. WOODRUFF, J.-Three questions are involved in the controversy between these parties: First, will an action lie for slander of the plaintiff's title? Second, was there sufficient proof to warrant the submission to the jury of the question, whether the plaintiff had title to the rye in respect of which the alleged slander was uttered, or in other words, were the words false? Third, was the alleged slander uttered maliciously? If these questions are all answered affirmatively, it is not claimed that the plaintiff was not entitled to recover the damages which the jury by their verdict have found in his favor. [The learned judge here briefly recited the facts.] 1. I percieve no legal impediment to the maintenance of an action for falsely and maliciously asserting title to personal property exposed by another for sale, in order to prevent persons present from bidding or purchasing. Cases of slander of title, most frequently arising, relate to the title to real estate or leasehold interests therein; but there is no difference in the principle or liability therefor, whether the property referred to be real or personal. On this point I concur in the conclusion of the chief judge, that the action may be sustained. 2. On the question whether the plaintiff or the defendant in fact showed title to the rye, or, in another form, whether the declaration of the defendant that the rye was his, was false, I think it is not accurate nor at all warranted by the proofs, to regard the property put up at the auction, as the property in the rye for any purpose for which a purchaser might make it useful during the twenty days only which would elapse before April 1 (when the term of the plaintiff's hiring would expire), * See also Babcock v. Utter, vol. 1, p. 27 of this series. Like v. McKinstry. -whether as pasture or otherwise, snow being then on the ground, and the rye itself, or so much of the growth as had sprung up the previous fall being of very little if of any value, unless permitted to mature and be harvested in the summer or fall following. Palpably, it was the future crop which was the subject of the auction sale; it was that in which the plaintiff claimed title; it was that for which the bidders offered; and it was that to which the words spoken had the plainest reference; and to that the title of the plaintiff was injured, and by injury to that he sustained damage. It was that, obviously, which was sold for three hundred and eighty-one dollars and eighty-seven cents, and not any mere right to the pasture or other use of the rye fields, for twenty days in March. The jury could not have found that, for injury to the title to the twenty days' pasture, the plaintiff sustained damage to sixty dollars over and above the sum bidden by the purchaser. Whether the defendant's assertion of title was true or false, depended upon the conclusion which the jury might draw from conflicting testimony. There was testimony that, upon the hiring for the year, from April 1, 1861, to April 1, 1862, the defendant assured the plaintiff that he might sow rye in the fall and harvest it, &c., in the summer or fall of 1862; and, whatever objection may be urged to the want of binding force of such a parol assurance under the statute of frauds, it was not irrelevant to the inquiry, whether the acts and declarations of the defendant, in the fall of 1861, did not amount to a then binding contract, under which the plaintiff was entitled to the rye, and to the privilege of harvesting it within one year next ensuing i. e., in the summer or fall following. And on that subject there was evidence tending to show, that in the fall of 1861, the defendant assisted the plaintiff in preparing the ground for rye, and encouraged the plaintiff to sow it, and that, as a part of the transaction, which of itself would constitute further consideration for the privilege of harvesting the rye, the plaintiff consented to and did put into the ground, for the defendant, his timothy seed, for the permanent improvement of his farm. Besides this, the plaintiff's witnesses showed repeated declarations of the defend |