
    HAGER against TIBBITS.
    
      Supreme Court, Third District; General Term,
    
    
      December, 1865.
    Pleading.—Answer in Action for Defamation.
    In an action for libel, an answer setting up that the defendant made the publication at the request and on the information of.a third person, is bad on demurrer.
    Such facts are not mitigating circumstances. The Code of Procedure has not changed the rules as to what circumstances are mitigating.
    
      It seems, that an answer alleging mitigating circumstances must state that they are set up in mitigation.
    Appeal from an order sustaining a demurrer, interposed by the plaintiff, to the second answer of the defendant to the plaintiff’s complaint.
    This action was brought by John Hager against Henry Tibbits. The complaint of the plaintiff alleged as follows :
    “ That the defendant, on or about the 20th day of June, A. D. 186J, contriving, and wickedly and maliciously intending to injure this plaintiff in his good name, fame, credit, and reputation, and to bring him into public scandal, infamy, and disgrace, with and amongst all his neighbors, and other good and worthy citizens, and cause it to be suspected and believed by those neighbors and citizens that the said plaintiff had been and was guilty of the offenses and misconduct hereinafter mentioned to have been made and charged upon him, by the said defendant ; and to vex, harass and oppress him, the said defendant did, on the said 20tli day of June, aforesaid, at the county of Schoharie, aforesaid, falsely, wickedly, and maliciously compose and publish, and cause and procure to be composed and published, in a letter written by the said defendant, to one A. W. Wether wax, a citizen of said county, of and concerning him, the said plaintiff, a false, scandalous, and defamatory and libelous matter following of and concerning the' said plaintiff, that is to say: John Hager (plaintiff'meaning) of Horth Blenheim, is not enrolled (meaning under the act of ‘Congress for enrolling and calling out the national forces of the United States), he (plaintiff meaning) is a secessionist (meaning that the plaintiff is a traitor and rebel against the government, constitution, and the laws of the United States), and should be enrolled (meaning under the enrollment act aforesaid). Please notify Seward Hager (meaning the enrolling officer, and deputy marshal- of the town of Blenheim) of that fact (meaning the fact that the plaintiff' is a secessionist).
    “ And the complaint of the plaintiff further shows, that after-wards, and on or before the 12th day of July, 1864, at the city of Albany, in the State aforesaid, the defendant did falsely, wickedly and maliciously publish, and cause and procure to he published to the commissioner of the draft, and provost-marshal of the fourteenth district of Hew York, and divers other citizens of this State, of and concerning the plaintiff aforesaid, to harass and oppress him, the said plaintiff, a letter written by the said defendant, of, and concerning the said plaintiff, containing the said false, scandalous, malicious, and defamatory libel aforesaid, that is to say: John Hager (plaintiff meaning) of Horth Blenheim, is not enrolled (meaning under the act for enrolling and calling out the national forces). He (plaintiff meaning) is a secessionist (meaning that the plaintiff was a traitor and a rebel against the government, constitution and laws of the United States) and should be enrolled, (meaning under the enrollment, aforesaid). Please notify Seward Hager (meaning the enrolling officer and assistant marshal of the town of Blenheim), of that fact (meaning the fact that plaintiff is a secessionist).
    “ And the complaint of the plaintiff further shows, that after-wards, and on or about the 11th day of July, 1864, at the town of Blenheim in the county of Schoharie, the said defendant did falsely, wickedly, and maliciously publish, or cause and procure to he published, of and concerning the plaintiff, to divers citizens of said town, for the purpose of injuring the plaintiff in his good name, fame, credit and reputation, among the good and worthy citizens of the town of Blenheim aforesaid, and cause it to be understood and believed among the said citizens, that the plaintiff was disloyal to his government, and a traitor and rebel against the government, constitution and laws of the United States, of which he was a citizen and subject, the following false, scandalous, malicious, defamatory and libellous letter, containing certain false, scandalous, malicious, defamatory and libellous matter. That is to say :
    “ Mb. A. W. Wethebwax :
    “ Dear Sir,—I am informed that John Hager, at North “ Blenheim, is not enrolled. He is a secessionist, and should be “ enrolled. Please notify Seward Hager of that fact, and “ oblige, Hembt Tibbits.
    “ June 20th, 1864.
    “ And the plaintiff avers the said defendant, in causing and procuring said libellous letter aforesaid to be published, falsely, wilfully, and maliciously meant and intended to charge the plaintiff with being a secessionist, traitor, and rebel against the government, constitution and laws of the United States, of which he was a citizen and subject, as aforesaid. By means of committing of which said several grievances by the said defendant, the plaintiff hath been, and still is, greatly injured in his good name, fame, and credit, and brought into public scandal, infamy, and disgrace, with and amongst all his neighbors, and other good and worthy citizens, and thereby subjected to the liability of punishment, and the pains and penalties of the crimes and offences aforesaid, to the damage of this plaintiff of five thousand dollars. Wherefore, &c.”
    The answer of the defendant alleged as follows: “That the defendant denies generally each and every allegation in the plaintiff’s complaint mentioned.
    “ And for a further answer to this complaint, says, that if he did on or about the 20th day of June, A. D. 1864, write or publish of and concerning this plaintiff (that he was a secessionist), that he did so at the request, and on the information of one Cornelius Winney, that this plaintiff was a secessionist; and that defendant, relying on said statements, and supposing them to be true, in good faith and without malice did what he did in the premises.”
    The plaintiff demurred to the second defense set forth in this answer, and for grounds of demurrer specified the following :
    
      1st. That the same does not state facts sufficient to constitute a defense to said action.
    2d. That said second defense does not admit the publication of the libel which he seeks to mitigate or excuse.
    3d. That said second defense is hypothetical and conditional.
    4th. That all the facts stated in said second defense do not constitute an answer to said complaint, or any legal mitigating circumstances.
    The demurrer having- been sustained at special term, the defendant appealed.
    H. Smith, for the appellant and defendant.
    
      Mayham & Dyer, for the plaintiff, respondent.
   Miller, J.

I think that the answer demurred to contains no defense to the plaintiff’s complaint, and that it was not in mitigation of the alleged libel that the defendant made the publication at the request of and upon the information of another party. That no such rule prevailed before the Code of Procedure went into effect, there can be no doubt, and I do not understand that it is claimed that prior to the Code it was otherwise (Mapes v. Weeks, 4 Wend., 649; Inman v. Foster, 8 Id., 602). .

It is said, however, that the Code has changed the rule, and now permits such circumstances to be alleged, although they do not constitute a defense in mitigation of damages. Prior to the enactment of the Code, the decisions, notwithstanding some little diversity in other States, were substantially to this effect, that any facts and circumstances which tended to disprove malice, by showing that the defendant, though mistaken, believed the charge to he true when it was made, might be given in evidence in mitigation of damages ; but if the facts and circumstances tended to establish the truth of the charge, or formed a link in-a chain of evidence going to make out a justification, they were not admissible in mitigation of damages (Cooper v. Barber, 24 Wend., 105; Root v. King, 7 Cow., 613; Fero v. Ruscoe, 4 N. Y. [4 Comst.], 162; Purple v. Horton, 13 Wend., 9; Gilman v. Lowell, 8 Id., 573).

Under this rule, a plea of justification was conclusive evideuce of malice ; and a party having alleged a justification and failed to establish it, even although he showed many circumstances which tended to sustain the truth of the charge, was effectually precluded from the benefit of mitigating circumstances. The two defences would not stand together, and in assuming one of them the other was excluded. If a defendant pleaded a justification, that was the end of any mitigating circumstances.

If he relied upon the mitigating circumstances, then of course his justification must fall. In pleading the latter, he. was in danger of having the damages greatly enhanced by being concluded from the benefit of any evidence tending to disprove malice.

To remedy this apparent injustice, the Code (§ 165) enacted that the defendant might, in his answer, allege both the truth of the matter charged as defamatory, and mitigating circumstances to reduce the amount of damages, and even although he failed to prove the justification, he might give in evidence the mitigating circumstances.

The effect of this simply was, to give the defendant the benefit of both those defences, and not confine him to one alone, as was the rule before the Code.

I think it did not alter the rule as to what constituted mitigating circumstances, or in any way add to the strength of any such defence, by authorizing facts to be considered as mitigating the charge, which previously, and by well-settled rules of law, were not thus regarded.

The provision of the Code contains no such principle, nor do the authorities wdiich have given this section a consideration authorize any such interpretation.

The case of Bush v. Prosser (11 N. Y. [1 Kern.], 34Y), is relied upon as sanctioning the doctrine that the facts contained in the defendant’s answer were to be considered under the section cited as mitigating circumstances. I do not thus read that decision, and it seems to me that it will not bear any such construction. Ho such defence was presented in that case as arises here, and the proofs rejected and excluded, on account of which the judgment was reversed,. were facts, and not' information alone. The decision of the judges in that case does not hold that the Code has changed the law; and, as I understand, Seldeiv, J., intended to decide that a belief based on information derived from others could not be shown, as the law now is. I discover no case in the books which holds that a party can shelter himself against the consequences of an alleged slander, by proof that he had information from another as to the fact.

In principle, it never has been held a mitigation; and the enactment of the Code that both a justification and mitigating circumstances may be introduced, cannot change the principle. But why should any such information mitigate the slander 2 Is it less injurious or offensive on that account? Does it, for that reason, inflict less of a stain upon the character and reputation of the person thus unlawfully assailed ? Certainly not. Nor can it be any real valid or lawful excuse to a party circulating a slanderous and defamatory charge, that he had information to that effect. The reputation of an individual is sacred; and no person should assume to propagate and set afloat a charge which impugns it, on information derived from another, without first making an inquiry, and investigating its truthfulness. Where he does so, I think he assumes the responsibility of the truth of the charge thus made, and it is no mitigation that he obtained information from another party which he believes to be true.

I also think there is another reason why the answer is demurrable. The answer does not state that the facts alleged are set up as a mitigation. This should have been done to entitle the defendant to the benefit of it in that particular.

Where circumstances, which can only be given in evidence in mitigation of damages, are set forth in the answer, it must be distinctly stated that it is with that view, and for that purpose only, that they are introduced, as* otherwise the plaintiff will have a right to infer that they are relied on as a bar to the action, and upon that ground may properly demur (Fry v. Bennett, 1 Code Rep., N. S., 238; 5 Sand., 54; Matthews v. Beach, 5 Sand., 264; Ayres v. Covill, 18 Barb., 260).

I am also of the opinion that the complaint of the plaintiff is not defective. I do not deem it necessary to discuss the question whether the term “secessionist” is actionable per se, as I think the complaint can be sustained^without maintaining any such proposition.

The alleged libel points the charge with great distinctness stating that the plaintiff was not enrolled, and giving a reason why he should be, not found in the enrollment act, and not authorized or sanctioned by any law of the land. The law provides for the enrollment of persons liable to military'service ; but it no where enacts that a person shall be made liable because he is a secessionist. Why then should his being a secessionist be a reason for enrolling the plaintiff? The character of a person entertaining such views was such as to call home upon him the vengeance of the government, and the opposition of good and loyal citizens. It is not to be disguised that it was an offensive and opprobrious epithet, which, at a time when the country was engaged in a civil war which required all its energies to suppress and subdue, was calculated to bring the party to whom it was applied into public disgrace, ridicule, and contempt, with his neighbors and friends. It was so regarded by the defendant, and in inditing and sending the communication which is alleged to be libellous he proposed to have the plaintiff punished for that reason. Even although' it may not have charged the plaintiff with a crime against the law, it was clearly libellous, and actionable as a malicious publication which reflected upon the character of the plaintiff without justification or excuse (See Brown’s Legal Maxims, 233, 234; 2 Kent’s Com., 13; The People v. Cornell, 3 Johns. Cas., 354; Steel v. Southwick, 9 Johns., 215).

For the reasons given, the order of the special term should be affirmed, with costs of appeal.

Hogeboom, J., dissented.

Peckham, J.

I concur on both grounds.

I. Defendant does not affirmatively set up any circumstance in mitigation of writing or publishing. In his second defense he obviously evades saying that he either wrote or published. But he did what he did ” for the reason stated.

II. The Code, I think, does not assume to define what is a mitigating circumstance. This court has held the matters here assumed to be set up to be no mitigation. So in Bush v. Prosser (16 N. Y. 361), Mr. Justice Selden says, “It has been long settled in this State, and in Massachusetts, &c., that no mere report, not amounting to proof of general character, nor information obtained by the defendant from others as to the truth of the charge, unless accompanied by proof that such information is true, can be received for the purpose of rebutting the presumption of malice.” He says “the evidence has been rejected, for, as it appears to me, the soundest reasons.” I think he is right.  