
    Bush against Prosser.
    Since the ’enactment of. the code of procedure, the defendant, in an action for slander or libel, may prove in mitigation of damages facts and circumstances which disprove malice, although they tend to establish the truth of the defamatory charge.
    It is not necessary that the answer should allege the truth, of the charge complained of, to entitle the defendant to aver and prove such facts and circumstances to reduce the amount of damages.
    Accordingly, where in an action for charging the plaintiff with keeping a house of ill fame, the answer denied the complaint, and as a partial defense alleged lewd and lascivious conduct by the plaintiff’s family, not amounting to a justification of the charge; Held, that evidence of such conduct was competent to reduce the amount of damages.
    Action for slander, commenced in June, 1849. The complaint alleged that the defendant charged the plaintiff with keeping a house of ill fame. The defendant by his answer denied each allegation of the complaint, and in further answering alleged that, during five years next prior to the times mentioned in the complaint, the conduct of the wife and daughter of the plaintiff, who during that time were inmates of his house, was lascivious, unchaste and improper, and such as to induce the belief that the plaintiff did keep a house of ill fame; that the son of the defendant was induced, by the conduct of the plaintiff’s wife and daughter, to visit the house of the plaintiff and to spend his time with the daughter at improper and unreasonable times, and to continue so to do, contrary to the injunctions and remonstrances of the defendant, which were well known to the plaintiff and his -family; and that whatever was said by the defendant in relation to the matters in the complaint, was said without any malice towards the plaintiff or design to do him injury in his good name or otherwise, but the same was said in kindness to the plaintiff personally, and to the son of the defendant by way of remonstrance, he then being a minor. The plaintiff replied, denying these allegations in the answer.
    • The cause was tried at the Monroe circuit in May, 1850, before Justice T. A. Johnson and a jury. The plaintiff proved the speaking of the words alleged in the complaint. The defendant offered to prove that, during one or two years prior to the speaking of the words, his son was in the habit of going to the plaintiff’s house and remaining there throughout the whole night, very frequently in the room with plaintiff’s daughter and to his knowledge. This evidence was objected to and excluded, and defendant excepted. He also offered to prove that on one occasion his son in returning, after a short absence from home, stopped at the plaintiff’s and remained there shut up in the house a week without coming home to his father’s. This was objected to, excluded, and defendant excepted. The defendant also offered to show the circumstances and facts of lewd conduct on the part of the plaintiff’s wife and daughter under the answer, which the court excluded, and the defendant excepted. The defendant offered to prove the facts mentioned in each of the foregoing offers, with the additional fact that he had previous to these occasions forbid his son visiting the plaintiff’s house, and that the plaintiff was so informed but permitted the son to continue his visits, the son being a minor, and that known to the plaintiff. This was also objected to and excluded, and the defendant excepted.
    The said justice charged the jury, “ that the only circumstances and facts which should be regarded by the jury, or which were proper to be given in evidence in mitigation of the damages, was whether the words charged were spoken on a sudden heat of passion or other circumstances of that nature attending the speaking of the wordsto this the defendant’s counsel excepted. The jury rendered a verdict for the plaintiff of $1000, upon which judgment was rendered. Upon an appeal to the general term this judgment was affirmed. {See 13 Barb. S. C. R. 221.) The defendant appealed to this court.
    
      H. R. Selden, for the appellant.
    
      H. J. Thomas, for the respondent.
   W. F. Allen, J.

Unless a change has been wrought in the rules of evidence and the law applicable to this case, by the, code of procedure, the justice was clearly right in excluding the evidence offered by the defendant in mitigation of damages. The facts and circumstances offered came far short of a justification of the charge made against the plaintiff, as understood by the court and jury, and it is conceded by the counsel for both parties that they tended to prove the truth of the words uttered. The authorities in this state, prior to the adoption of the code.' speak but one language; and the rule was too well settled to be changed, except by the interposition of the legislature, that evidence of that character in actions for slander was at the common law inadmissible. The current of authority obligatory upon the courts of this state, notwithstanding some diversity of opinion in other courts and other states, was to the effect, that facts and circumstances which tended to disprove malice by showing that the defendant, though mistaken, believed the charge to be true when it was made, might be given in evidence in mitigation of damages ; but if the facts and circumstances' offered 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 Cowen, 613; Fero v. Ruscoe, 4 Comst. 162; Purple v. Horton, 13 Wend. 9; Gilman v. Lowell, 8 id. 573.) The rule appears to follow as the legitimate result of two other rules which were well established by authority, viz. 1. That evidence of the truth of the charge in justification could not be given under the general issue, but must have been specially pleaded. (Underwood v. Parks, Str. 1200; Campbell v. Butts, 3 Comst. 173.) And, 2. That a plea of justification was conclusive evidence of malice, and precluded all evidence tending to show an absence of malice, and necessarily enhanced the damages. (Gilman v. Lowell, Purple v. Horton, Fero v. Ruscoe, cited above.) Whether the latter rule might not originally have been, with great propriety and consistently with sound policy and good reason, very essentially modified, it is too late now to inquire. It is well settled to be the rule of the common law as understood and administered in this state, and unless it has been changed by the legislature, must be applied by us to this case.

It follows that the important question presented by the bill of exceptions is upon the construction and effect to be given to section 165 of the code, which, as amended in 1849, read thus: In the actions mentioned in the last section, (libel and slander,) the defendant may in his answer allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages, and whether he prove the justification or not, he may give in evidence the mitigating circumstances.” It is urged that the defendant, not having in his answer alleged the truth of the slanderous words, could not under the section quoted allege in his answer, or give in evidence upon the trial, mitigating circumstances in diminution of the damages; and to this effect are two decisions, pronounced by able judges, and therefore entitled to respect and consideration. (Graham v. Stone, 6 How. Pr. Rep. 15; Brown v. Orvis, Id. 376.) The objeción assumes, 1. That proof of mitigating circumstances cannot be given, except under an answer-in which the facts relied upon are alleged; and 2. That the only authority for spreading upon the record, by way of answer, facts that do not constitute an entire defense to the action, but simply go to restrict and limit the amount of the plaintiff’s recovery, is confined by the section of the code referred to, and is therefore restricted to actions upon the case for defamation. I think this an unsound theory. At common law a partial defense could not be pleaded, for reasons peculiar to that system; and hence to avoid injustice, such matters which could not be pleaded were admissible in evidence under the general issue, and without notice to the adverse party. (Wilmarth v. Babcock, 2 Hill, 194; Barber v. Rose, 5 id. 76; 21 Wend. 273.) By the code the general issue is abolished; and the defendant may set forth, by answer, as many defenses and counter claims as he may have. (Code, §§ 149, 150.) The legislature, by the same act, also abolished all forms of pleading theretofore existing, and provided that thereafter the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings were to be determined, should be those prescribed by that act. (§ 140.) So complete and thorough has been the departure from the former rules and forms of pleading, that it is hardly safe to rely upon analogies derived from that system in giving practical effect to the new. Based as the new is upon an entirely different theory, and having professedly different ends to accomplish, it is better, with a view to carry it out in its spirit, to consider it, as it is in truth, an entire new theory, to be construed and carried into effect according to its terms, and upon principles peculiar to itself. Difficult as it may be for a mind trained to the logical and truly scientific rules of pleading under which justice has so long been administered in states and countries in which the common law has had sway, to cast aside all the rules which have been supposed to be founded in wisdom, and in practice to have accomplished a good purpose, for a new and confessedly imperfect scheme, it is safe to say that it must be done in order to give effect to the provisions referred to, and to give the new system a fair trial; and that less injustice will be done in that way than by attempting to engraft the new upon the old, which can only be done to the prejudice' of both.

Two objects of reference were made prominent in the changes made in the forms of pleading by the code. One was the introduction of verity into the pleadings by providing, in effect, that parties in their allegations should have the same regard to truth that prevails between members of society, in their daily communications with each other ; that they should not willingly, and certainly not by compulsion, spread a falsehood upon the record; that a defendant should not be driven, or permitted even, falsely to allege a full defense, to the end that he might prove a partial defense. Another was, that the pleadings should inform the court and the adverse party of the facts alleged in support or defense of the action, and to which evidence was to be given; and hence common counts, general issues and all fictitious pleadings, were abolished. One alleged objection to the old forms of pleading was, that the record did not necessarily disclose the true questions of fact at issue and which were to be tried. With this understanding of some of the leading objects of the legislature, we may read the section which permits a defendant to set forth by answer as many defenses as he may have, and which originally authorized him to 11 set forth in his answer as many grounds of defense as he should have,” (Code of 1848, § 129,) and recognizes' the right to set up facts constituting either a total or partial defense to the action. Although defense may mean literally a denial of the truth or validity of the complaint, an assertion that the plaintiff has no ground of action, it has ceased to mean a justification, and as now used by courts and judges it is applied to matters which go to the partial as well as total extinguishment of the plaintiff’s claim ; and the terms total and partial defense have become quite familiar, and may well be supposed to have been in the mind of the legislature when they spoke of the “ grounds of defense,” or “ the defenses” of a party to an action. ( 3 Bl. Com. 296.) It can hardly be that the legislature intended that when a party could not make a full defease to an action, and could not therefore with truth allege facts constituting a full defense, or fully deny the case made by the plaintiff, that he should be denied the privilege of alleging in his answer, and establishing by his proof a partial defense, or alleging and proving mitigating circumstances. If this was not intended, then the statute should be construed as giving authority to spread fact sconstituting a partial defense, or tending to reduce the claim of the plaintiff upon the record by way of answer, as a “ground of defense ” or as a “ defense otherwise a return must be had to the former practice, which permitted partial defenses to be given in evidence without plea or notice. For the legislature never intended so to alter the law, that a party who could not make a full defense, should not be heard to make any; but in the language of another, should “be bound hand and foot, and handed over to a jury.” It may'be that whether the defendant may, under the provisions of § 150, set up in his answer facts constituting a partial defense’and tending to mitigate the damages, or whether such matters may be given in evidence without such answer, is immaterial so far as this case is concerned, for the reason that, upon one or the other hypothesis, evidence of the character stated is competent on trials under the code. I am however of the opinion that the facts may and should be pleaded.

We then come to the consideration of § 165, which was" not designed to prescribe what might be pleaded in defense of an action for slander, but was enacted to secure the full benefit of the right to plead at all to the defendant by blotting out the rule.of the common law, which attached certain presumptions prejudicial to the defendant to one class of pleas. We have seén that by the rules of law, as established by a' long series of decisions, a plea of justification was" conclusive evidence of malice; and that if a party having alleged the truth of the charge failed to prove it, the damages were necessarily enhanced by the plea, and that the defendant would be deprived of the benefit of any evidence given under it, tending to prove the truth of the charges, but coming short of a justification, although they showed probable cause and entire good faith on the part of the defendant; and the object and design of the section, apparent from its terms as well as indicated by the commissioners of the code in their report, was to remedy this supposed injustice by changing the rule. Had this section not been adopted, it cannot be doubted that in actions for slander and libel as well as in other actions, mitigating facts and circumstances might have been given in evidence upon the trial; and whether with or without alleging them in the answer, would have depended upon the true construction of other provisions. The section under consideration only provided that mitigating facts and circumstances might be alleged in the answer, and proved upon the trial in the class of actions named in cases where it had theretofore been prohibited; and hence the peculiar phraseology of the provision, that the defendant might in his answer allege both the truth of the defamatory matter and any mitigating circumstances. It was assumed that each might be alleged separately, but before this enactment they could not stand together, and a plea of justification effectually concluded the defendant from the benefit of any evidence tending to disprove malice, and in that way to mitigate the damages. This provision effectually disposes of that rule by adopting one directly the reverse, and more consistent with principles of justice, and in harmony with the views of the legal profession. There is but little justice in punishing a man for availing himself of the forms of pleading, to enable him to make a defense in good faith, which he believes to be meritorious and valid, because he chances to fail. The law does it in no other case. If the privilege is abused for malicious purposes, it should then be matter in aggravation of damages—not otherwise.

It would seem to follow that, with the abrogation of the rules that lay at the foundation and constituted the reason for excluding evidence in mitigation of damages which tended to prove the truth of the charge, or which formed a link in a chain of evidence going to make out a justification, the rule itself should fall. It is implied by all the decisions that, but for the rules of pleading and presumption referred to, any evidence tending to disprove malice would be admissible, although it should tend to justify the charge. All the judges who have undertaken to assert the rule, have found it necessary to engraft the exceptions upon it, lest it should be understood that such evidence was within the rule. (8 Wend. 573; 6 Barb. 43; 13 Wand. 9 ; 4 Comst. 162 ; 7 Cowen, 613 ; 24 Wend. 105.) The guilt of and essential ground of action for defamation consists in the malicious intention ; and when the mind is not in fault, no prosecution can be sustained. (2 Kent’s Co.n. 26.) This malice the law implies from the falsity of the charge, except when the words are spoken in the performance of some recognized duty, or in the assertion of some right, in which case express malice must be shown, while in other cases express malice forms no part of the issue. ( Thorn v. Moser, 1 Denio, 488; Howard v. Sexton, 4 Comst. 157.)

To repel and overcome in part this legal presumption of malice, the defendant has been heretofore permitted to prove facts and circumstances which show that the charge was made under a mistake of facts. (Gilman v. Lowell, supra.) Within the rule, he may give evidence of facts and circumstances which inducéd him to suppose the charges true at the time they were made. (Purple v. Horton, and Cooper v. Barber, supra.) But this rule as heretofore established must be taken with this qualification, that the facts must not tend to prove the truth of the charge; and the reason assigned for the qualification is, that if they are proved under a plea of justification, the plea itself being conclusive evidence of malice, cannot be overcome or rebutted; and if offered under the general issue, they are inadmissible, as tending to establish a defense which should have been specially pleaded, and for the additional reason assigned in some of the cases, that as a plea of justification was conclusive evidence of malice, a fortiori, the offering of proof of the truth of the charge was alike conclusive upon that question. But these rules are changed; and the reason of the rule under consideration having therefore ceased, the rule itself should cease. The report of the commissioners of the code show this result to have been within their intention in framing the provision; and as the provision iself is consistent with this view, it may be supposed that the legislature intended the same result. Probable cause for making the change, especially when that cause has been ,induced by or necessarily results from the acts of the plaintiff, together with entire good faith of the defendant in making it, does, in my judgment, show an absence of malice; - and so far as malicious intention lies at the foundation of the action and of the claim for damages, should be taken into account, not as a full defense, but in mitigation of damages, as in Gilman v. Lowell. The action is vindictive, and the damages are punitive as well as compensatory; and so far as the former are concerned, all evidence tending to throw light upon the intent and motives of the defendant, which does not interfere with the established rules of law, may very properly be received. A plaintiff will not, in the hands of an enlightened court and jury, be very likely to suffer injustice from evidence which goes merely to give character to or explain the conduct of the defendant, and show under what circumstances and why he spoke the words, especially when the evidence is given under a disclaimer of all intention to justify the words or insist upon their truth. The course of legislation upon this subject tends very strongly to show that it was the intention to make this change in the rule now under consideration. The commissioners first reported the section authorizing the setting up of “ any mitigating circumstances sufficient in law to reduce the amount of damages,” which fully expressed their views, and would have authorized any circumstances which, under the law and the rules of pleading and evidence as. modified by the code, would have been sufficient to reduce the damages. The legislature, without an intention to change the provisions, so .far as I can discover, varied the phraseology, by making it read, any mitigating circumstances legally admissible in evidence,” and this was amended in 1849, by striking out legally admissible in evidence,” lest it might be construed as restricting the mitigating circumstances to such as were before admissible, which would have been in direct conflict with the residue of the section, which expressly authorized evidence to he given of mitigating circumstances which was before excluded. The facts offered in evidence, and which were rejected by the judge upon the trial, would have tended to disprove malice by showing the cause, if any, that existed for making the charge; and this the jury should know, to the end that they may understandingly measure the damages, and mete out to each party equal and exact justice.

The course of the decisions upon this branch of the law in other states and in England need not be examined in this connection, as they are sufficiently referred to by Selden, J., in his dissenting opinion in the court below in this case, and in Follett v. Jewett, (1 Am. Law Reg. 600,) in which I fully concur. I will merely add, that so long as the rule laid down by Gardiner, J., in Howard v. Sexton, is the law in this state, that to constitute an injury, for which an action of slander will lie, malice must be proved—not mere general ill will—but malice in the special case set forth in the pleadings, to be inferred from it and the attending circumstances, any evidence which legitimately shows innocency of motive may be given as a mitigating circumstance under the code, whether it conduces to prove the fact, while it falls short of it, or not. What effect should be given to the evidence is not for us to say. We merely decide that it was competent; and because it was excluded, the judgment of the court below must be reversed, and a new trial granted, costs to abide the event.

Selden, J.

The questions presented in this case are of unusual interest. The principles regulating the admission of evidence in mitigation of damages, in actions for libel and oral slander, have given rise to much controversy and many conflicting decisions. The courts have struggled for more than a century.with the incongruous rules which have prevailed on this subject.

An attempt has been made, through a provision of the code, to remove the difficulty. Section 165 provides, that in this class of actions the defendant “ may in his answer allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages ; and whether he prove the justification or not, he may give in evidence the mitigating circumstances.” It is desirable that such a construction should be put upon this provision as will make the remedy it affords coextensive with the evils it was designed to remove.

What, then, were those evils ? To answer the inquiry, it becomes necessary to glance at some of the principles which lie at the foundation of this class of actions. It will not be denied that malice on the part of the defendant is essential to the maintenance of the action. This is distinctly asserted by every elementary writer on the subject, and is confirmed by all the cases. But it is said that there need be no express malice, except in the case of privileged communications; that in other cases, implied or legal malice is all that is required. What is meant by implied malice? Does it mean malice which the law imputes without any proof of its existence ? I apprehend not. It means this: that the fact that the defendant is shown to have uttered or published a false charge against another, which was calculated-to injure him, proves that the defendant was actuated by malicious motives, unless the circumstances are such as to suggest some other and innocent motive. This is nothing more than the application of a familiar rule of evidence, viz. that every person is presumed to intend that which is the natural consequence of his actions. Where, however, the circumstances are such as afford ground for supposing an innocent and laudable motive—as where the charge is made in giving the character of a servant, or confidential advice to a friend—then the presumption which would otherwise arise from the falsity and injurious nature of the charge is repelled, and it becomes necessary to offer other evidence of malice. But is malice any more the ground of the action in cases of privileged communication than in others ? Clearly not. It is called, for the sake of convenience, express malice in the one case, and implied in the other; but the malice is the same; the difference is in the proof alone. We may therefore assume, that in all cases malice is essential to the action. Mot imputed malice merely, but actual malice; malice established by proof.

Our next inquiry is, whether the degree of malice has any bearing upon the measure of damages 1 If malice is an essential ingredient in the cause of action, it would seem to follow that the damages should be graduated more or less by the degree of malignity displayed. But it may be said that the object of the action is to obtain compensation for a personal injury, and that the extent of that injury does not depend upon the malice or innocency of intent of the defendant. I fully appreciate the general truth, that civil actions are designed to redress private and not public wrongs ; and yet every one knows that the value of the administration of our civil jurisprudence con in the wrongs it redresses, but in those it prevents and especially is this true of the class of actions we are considering, It will be found that, from the origin of the common actions which impute malice to the defendant have been used to some extent to protect the public interests and to repress the indulgence of those vindictive feelings which the peace of society. In this view the damages should, to some extent, be measured by the degree of malice proved.

But it is useless to speculate upon the question. There are numerous decisions going to establish the doctrine, that proof of positive malice on the part of the defendant, in this class of actions, has a legitimate tendency to enhance the damages. “ I shall refer to a few of the cases only. In Defries v. Davis, (7 Car. & Payne, 112,) which was an ordinary action of slander, the plaintiff offered evidence of a repetition of the slander, in aggravation of damages. Tindal, Ch. J., said: “You may shew any thing that is evidence of malice, but you must not shew any thing that would be the subject of another action.” In Bromage v. Prosser, (4 Barn. & Cress. 247,) Bayley, J., says: “But in an ordinary action for a libel or for words, though evidence of malice may be given to increase the damages, it never is considered essential.” In the case of Root v. Lowndes, (6 Hill, 518,) Judge Bronson, while he condemns and overrules the English nisi prius cases, which admit proof of the publication by the defendant of libels or slanders other than those charged, for the purpose of showing quo animo the charge was made, nevertheless holds, that a repetition of the same slander is admissible, citing the case of Defries v. Davis, (supra.) This court, too, in Howard v. Sexton, (4 Comst. 157,) has confirmed the doctrine. Gardiner, J., says: “ The plaintiff may show a repetition of the charge for which the action is brought; but not a different slander for any purpose.” Of course, in all these cases the evidence is held to be admissible, to enhance the damages. It could be received for no other legitimate purpose, as it would be wholly unnecessary to the maintenance of the action. There are many other authorities to the same effect; but these must, I think, be sufficient to sustain the position, that in an ordinary action of slander, although the malice necessary to maintain the action is implied from the falsity of the charge, the plaintiff may, nevertheless, give evidence of express malice in aggravation of the damages. The elementary works all hold the same language.

Assuming then, what cannot well be denied, that affirmative proof of malice may be received to aggravate the damages and enhance the verdict, in cases where no such proof is necessary to maintain the action, it inevitably follows that if the defendant can show that he was not actuated by any malicious motive, he will thereby mitigate the damages; and that he must be permitted to give evidence for that purpose. It is clear, therefore, that the defendant has a right to prove the absence of malice in mitigation of the verdict; and to do this, it is óf course indispensible to prove that he believed, and had some reason to believe, the charge to be true, when it was made. But how is he to make this proof? There are but two conceivable modes of doing it. One, by proving that he had received such information from other persons as induced him to believe the charge to be true; the other, by showing the existence.of facts and circumstances within his knowledge calculated to produce such a belief. Repeated efforts have been made by defendants to avail themselves of the former of these modes. The general doctrine being conceded that a defendant had a right to repel malice for the purpose of mitigating the damages, there was plausibility at least in the position, that he should be permitted to show that he had been led into an honest belief of the truth of the charge by the information he had received. There has been much fluctuation upon this question in the English courts. But in this country the evidence has been rejected, for, as it appears to me, the soundest reasons. It has long been settled in this state and in Massachusetts, as well as most of the other states, that although evidence is admissible to prove the general character of the plaintiff to be bad, yet that no mere reports or rumors, 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. This nécessarily reduces the defendant to the proof of facts and circumstances known to him at the time of making the charge, having a tendency to induce a belief of its truth, as the only means of showing a want of malice. Here, however, the defendant has been met in this state by the rule, that no facts or circumstances having a tendency to establish the truth of the charge, could be given in evidence under the general issue to mitigate the verdict. Of course, facts.and circumstances which would warrant the defendant in believing the charge, must be such as would have some tendency to prove it to be true. This rule, therefore, effectually excluded the only evidence by which the absence of malice could be shown.

First, then, malice was presumed from the falsity of the charge ; to this the plaintiff might superadd proof of positive malice, and thus aggravate- the damages, while the defendant was precluded, by the rule which excluded all proof of facts tending to establish the truth of the charge, from giving any evidence to rebut malice in mitigation. Upon what did this rule of exclusion rest ? Certainly not upon the intrinsic impropri ety of the evidence. This is clear from the positions already established/' It must have had some other foundation: what was it ? The answer to this question is both simple and certain. The rule is merely an unforseen consequence of that which excluded proof of the truth of the charge, under the general issue, in mitigation of damages ; a rule which originated with the case of Underwood v. Parks, (2 Strange, 1200.) The courts have implicitly followed that case, without even seeming to consider that the rule it laid down, was not only a departure from the principles of the common law, and a pure piece of judicial legislation, but that, in its consequences, it must necessarily deprive defendants of all power to mitigate the verdict. Prior to that case, defendants in this class of actions were permitted to prove not only the absence of malice, but the truth of the charge itself in mitigation. This is shown by the case of Smithies v. Harrison, (1 Lord Ray. 727.) The reception of this evidence was in perfect accordance with the general principles of law. Courts have sometimes, in their speculations upon this subject, seemed to suppose that there was some inherent legal objection to proving, in mitigation merely, that which might amount to a justification; and have- applied the rule which excludes proof of the truth of the charge in mitigation, as though that were its foundation. This however is an obvious error. It was never any objection to evidence in mitigation, that under a different state of the pleadings it would amount to a full defense. The rule in Underwood v. Parks was not put upon any such ground. That was an action of slander. • The defendant, under the plea of not guilty, offered to prove the words to be true, in mitigation of damages. The chief justice refused to permit it, saying, that, “ At a meeting of all the judges upon a case that arose in the common pleas, a large majority of them had determined not to allow it for the future, but that it should be pleaded, whereby the plaintiff might he prepared to defend himself, as well as to prove the speaking of the words.” The very terms here used show, that this was the introduction of a new doctrine by the common consent of the judges. It is clear from the reason given, that the intrinsic propriety or impropriety of the evidence had nothing to do with the adoption of this rule. It was a rule of pleading merely; having no other object than to prevent plaintiffs from being taken by surprise upon the trial, by evidence of the truth of the charge. It was not designed to deprive defendants of the benefit of such evidence, or any evidence; but simply to secure due notice to the plaintiff of what he would be required to meet. This was all very well in cases where the defendant was. prepared to justify, which cases alone the judges had in view in adopting the rule. But when the doctrine came to be applied to cases where all the defendant.could or desired to do was to mitigate the damages, by showing the absence оf malice, it operated unjustly. It took away the right altogether, since the rules of pleading did not allow any thing short of a complete defense to be spread upon the record. The whole difficulty would have been obviated, if the judges had simply added to this rule a clause, permitting defendants to give with the general issue a notice of the facts intended to be proved in mitigation of damages. It would have been no greater stretch of power to have done this, than was required to prescribe the rule itself. But they evidently failed to foresee the conflict which must necessarily arise between the conceded right of the defendant to mitigate the damages, by showing the absence of malice, and the rule they adopted; a conflict which can be clearly traced from that day to the present. The right and the rule were directly repugnant to each other; and no question has ever given rise to a more protracted struggle.

The courts in England, under a sense of the admitted right, have in a number of cases decided, that facts and circumstances falling short of proving, although tending to prove the truth of the charge, might be received in mitigation. (Knobell v. Fuller, Norris’ Peake, Append. 32; Leicester v. Walter, 2 Camp. 251.) But the courts in this state and in Massachusetts, with less justice but better logic, have uniformly held that a rule which excluded proof of the truth of the charge, must necessarily exclude evidence tending to prove it. But it" is a little surprising to observe how often judges have asserted in the same paragraph, both the right to mitigate by disproving malice, and the rule which effectually precluded the exercise of the right, without any apparent consciousness of the conflict between the two. I will refer to a few only out of the many instances. In the case of Root v. King, (7 Cowen, 613,) judge Savage says, .that the defendant “ may show in evidence under the general issue, by way of excuse, any thing short of a justification which does not necessarily imply the truth of the charge or tend to • prove it true, but which repels the presumption of malice arising from the fact of publication.” The same judge, in Purple v. Horton, (13 Wend. 9,) says: “Facts and circumstances may be shown in mitigation, when they disprove malice, and do not tend to prove the charge, or form a link in the chain of evidence to prove a justification.” Again, Judge Bronson, in Cooper v. Barber, (24 Wend. 105,) says: “ Facts and circumstances which tend to disprove malice by showing that the defendant, though mistaken, believed the charge true when it was made, may be given in evidence in mitigation of damages. But if the facts and circumstances offered tend to establish the truth of the charge, or form a link in the chain of evidence going to make out a justification, they are not admissible in mitigation of damages.” It does not appear to have occurred to either of these eminent judges, that there was any incongruity between the two branches of the proposition thus asserted by them. But it is certainly difficult to comprehend how a defendant is to disprove malice, by showing “ that he believed the charge true when it was made,” without giving evidence tending to establish its truth ; since a belief based upon information derived from others cannot be shown.

If malice may be repelled for the purpose of mitigation, what reason is there why it should not be done by proof of facts tending to show the truth of the charge as well as of any other facts'? None has ever been given, except that which led to the adoption of the rule in Underwood v. Parks, viz. that the plaintiff might be taken by surprise. But is that a sufficient reason for depriving a defendant altogether of the benefit of such evidence ? Clearly not; and yet this has been the effect of that rule, as construed by the courts of this state, when combined with the other rule, which precluded the pleading of matter in mitigation. The obvious injustice of this result has induced the courts in many of the states, as well as in England, to disregard the logical consequence of the rule in Underwood v. Parks, and admit the evidence. In a late case in the state of Connecticut, Williams v. Miner, (18 Conn. R. 464,) Church, Ch. J., says: “We are not satisfied that a defendant should be deprived of the benefit of mitigating circumstances, for no better reason than that they conduce to prove the truth of the charge, while they fall short of it. We see no sufficient cause why he should not be permitted to prove such facts, as well as any other showing innocency of motive, and which can only be proved under the general issue.” In this passage the chief justice expresses that dissatisfaction with the rule in question which has prevailed so extensively among judges. He also betrays the same misconception as to the foundation of the rule prohibiting proof of the truth of the charge in mitigation, which appears to have been so nearly universal. He says: “ for no better reason than that they conduce to prove the truth of the charge, while they fall short of it.” This implies that there is some reason against proving the truth of the charge in mitigation, which does not apply to evidence tending to "prove, but falling short of proving it. The English cases of Knobell v. Fuller, and Leicester v. Walter, (supra,) and many other cases in this country, proceed upon the same idea. It seems to have been supposed that there was some sound legal objection, to admitting proof of facts under the general issue in mitigation, merely, which, if specially pleaded, would amount to a full defense. But there is not, and never was, any such objection. It has been already shown that the rule which excludes proof of the truth of the charge in mitigation, had no such foundation.

We have now, I think, a clear view of one of the evils which required correction in this state. It was requisite either to restore the ancient rule of the common law, and permit any evidence going legitimately to disprove malice, to' be given under the general issue without notice, or to provide some mode by which notice might be given.

But there was another evil especially calling for the interposition of the legislature. Defendants might have avoided in some measure the injurious effect of the rule prescribed in Underwood v. Parks, as interpreted and enforced by the courts of this state, by putting in a plea of justification, and thus introducing their evidence, although it might not fully support the plea, for the purpose of having it considered by the jury in mitigation of the verdict. But here they were met by another rule somewhat gratuitously adopted by our courts. They held, not only that the putting in of such a plea, when not done in good faith and with proper motives, was an aggravation'of the wrong, but that it was, under all circumstances, an admission of malice, and precluded the defendant from claiming any mitigation of damages on the ground of its absence.

I am at liberty to express my non-concurrence in this doctrine, because the legislature has abrogated it. In Massachusetts, where the courts had adopted the same rule, the legislature , interposed long since. (See Stat. of, 1826, ch. 107, § 2.) This statute, after providing that a plea of justification shall not be taken as evidence that the words were spoken, proceeds as follows : “ Nor.shall such plea of justification, if the defendant fail to establish it,- be of itself proof of the malice of such words ; but the jury shall decide upon the whole case, whether such plea was or was not made with malicious intent.” Whether a plea . of justification affords evidence of malice or not, must, as it seems to me, depend upon the state of the proof at the trial; and so our legislature, as well as that of Massachusetts, has evidently thought.

The evils, then, which called for the interposition of the legislature, were, as we see, two fold; and we are now prepared to put a construction upon the remedy which the code has provided. In Graham v. Stone, (6 How. Pr. R. 15,) an opinion is intimated by Mr. Justice Johnson, that section 165 of the code does not authorize any facts to be set up in an answer in mitigation of damages, except in connection with a justification of the libel or slander; and this view is concurred in by Mr. Justice Harris, in Brown v. Orvis, (6 How. Pr. R. 376.) I do not so interpret the provision. Under that construction, the matter would be left in no better condition than .before. It would even be worse. Because, as the law stood before the code, the defendant might have pleaded a justification, although he did not expect to be able fully to support it, in the hope that his mitigating proof introduced tinder the plea might, as it generally would, have some influence with the jury, notwithstanding the judicial rule that he had thereby confessed the malice of the charge. But as he may now be required to put in his answer under oath, he would, upon the construction given to section 165, be deprived of every resource, unless his belief in the truth of the charge continued up to the time of putting in the answer.

To reach the evils which existed, therefore, a broader construction must be put upon the provision in question ; and I see nothing in the phraseology of the section to prevent this. Its language is, that the defendant “ may in- his answer allege both the truth of the matter charged as defamatory, and any mitigating circumstances.” This does not necessarily mean' that he must connect them both together; that he cannot allege one without the other; but that he should not be prohibited from alleging either. Thus construed, this section exactly meets the evils to be remedied, and removes a reproach, which, as I think, with some justice, has been often cast upon the administration of the law of libel and slander by the court. „

The facts set up in the answer in this case must, I think, if established by proof, have had some tendency "to rebut the presumption of malice, and consequently to mitigate the damages ; and therefore should, under the conclusions to which I have arrived, have been received in evidence. The judgment of the supreme court should be reversed, and a new trial ordered, with costs to abide the event.

Johnson, J., also delivered an opinion to the same effect as the foregoing opinions.

Gardiner, Ch. J., and Edwards and Parker, Js., concurred.

Denio, J., dissented on the 'ground that the rule of law as held by the supreme court in this case, whether a wise one or not, was too well settled to be changed except by the legislature, and that in his opinion this had not been done by the code of procedure.

Judgment reversed.  