
    Gaul and Wife v. Fleming.
    Action for slander, in charging the plaintiff with larceny. Answer, 1. Admitting the speaking of the words, and justifying. 2. Matter in mitigation of damages. Beply, denying the mitigating facts generally. There was nothing in the complaint charging special damages.
    
      Held, 1. That the words being actionable in themselves, malice is presumed. 2. That the burden of the issue rested upon the defendants; and hence, they were entitled to open and dose the argument.
    APPEAL from the Hamilton Circuit Court.
    
      Saturday, May 29.
    
      
       Counsel for the appellee cited the following authorities, touching the onus probandi, viz.: 2 R. S. p. 110, § 324; Id. p. 112, § 326; Jackson v. Pittsford, 8 Blackf. 194; Jackson v. Hesketh, 2 Stark. R. 518; 1 Greenl. Ev. § 76. Touching the open and close, they cited 2 Greenl. Ev. § 76; 2 Phil. Ev. p. 483. They contended that the case of Downey v. Day, 4 Ind. R. 153, relied upon by counsel for the appellants, is bad law upon this point, being based upon Guy v. Kitchener, cited in 2 Stark. Ev. 826, which case was overruled in England by the fifteen judges, in Carter v. Jones, 6 C. & P. 64. See 1 Greenl. Ev. § 76, and note 4 to the same.
    
   Hanna, J.

This was an action by Fleming, a minor, who was permitted to prosecute as a poor person, against Gaul and wife, for words spoken by the said wife charging said Fleming with larceny.

The first and second paragraphs of the answer admit the speaking of the words, and justify. The third is as follows:

“ The defendants, further answering the first and second paragraphs of the plaintiff’s complaint, say, that before the speaking and publishing the said several words in the said paragraphs mentioned, and therein supposed to have been spoken and published by the said defendant, Arm Gaul, of and concerning the said Elizabeth Fleming, she, the said Elizabeth, admitted and confessed to the said Ann Gaul and others, that she, the said Elizabeth, had taken and carried away enough muslin belonging to said Ann to make her, said Elizabeth, a shirt, without the knowledge or consent of the said Ann; and the defendants further say that, at the time of the speaking and publishing of the said several words in said paragraphs mentioned, by the said Ann, she, the said Ann, believed the same to be true in fact, and that she declared in the presence and hearing of the same persons in whose presence and hearing said words were so spoken by the said defendant, Ann Gaul, as aforesaid, that she had heard and been told the same by the said Elizabeth Fleming,” &c.

To these paragraphs of the answer, there was a general denial.

After the evidence had been heard the defendants’ counsel moved the Court for leave, and claimed the right, to begin and conclude the argument to the jury. The Court overruled the motion, and permitted the plaintiff’s counsel to open and close the argument. This is the only point made in the brief of appellants.

The statute upon the subject is as follows:

“ In the argument, the party having the burthen of the issue, shall have the opening and closing.” 2 R. S. p. 112. We are not informed by the record as to which party took the burden of the issue in producing the evidence, although we have a very similar statute, to the one above-quoted, as to the introduction of testimony.

The question appears to have been first mooted at the time the argument was to commence. Each party contends that the burden of the issue rested upon them.

W. Garver and D. Moss, for the appellants.

D. C. CMpman and-Evans, for the appellee .

The paragraph quoted, in effect admits the speaking of the words; and instead of directly denying that they were spoken maliciously, sets up affirmative matter to show such fact, or at least to mitigate the damages.

It is argued by the appellants that, although the first two paragraphs of the answer directly, and the last one, thus indirectly, admit the speaking of the words, yet it devolved upon the plaintiff to make proof of the amount of damages sustained, under that clause of the statute which provides that, “allegations of value or amount of damages, shall not be considered as true by the failure to controvert them. 2 R. S. p. 44. There is nothing in the complaint charging special damage, and the words alleged to have been spoken, are of themselves actionable, and, therefore, malice is presumed.

Under these circumstances, we think that, until the defendant had offered-evidence to sustain the affirmations in the answer, there was no necessity for the plaintiff to produce any testimony. The general question of damage' to the character of the plaintiff, was a question for the jury. Such character is presumed to be good. In the issues tendered, the speaking of the words was admitted. Without evidence from either side, the jury would have been prepared to consider of their verdict.

Evidence to sustain a justification of the spealdng, or to mitigate the damages, must have come from the defendant.

The ruling of the Court was erroneous.

Per Curiam. — The judgment is reversed ‘with costs. Cause remanded, &c.  