
    Meyer v. Schultz.
    An answer in an action of slander, denying the speaking of the words, cannot also set up matter in mitigation of damages.
    Thb code allows that, only where the defendant justifies the slanderous words. Where there is no justification, the rule is the same as under the old system. Evidence in mitigation may be given on the trial of the issue made as to the speaking of the words alleged.
    October 25, 1851.
   These points were decided by

Mason, J.,

at chambers, all the justices concurring, on a motion to strike out part of the answer in an action of slander. The defendant first denied ever speaking the words alleged. He then stated, that if they were spoken, it was in the heat of passion, &c. The latter was the matter objected to. The judge said that the provision in the code permitting the defendant to allege mitigating circumstances in his answer, (Code, § 165,) was limited to cases in which he pleaded the truth of the matter charged as defamatory. Where he does not justify, the rule of pleading has not been changed by the code.

J. M. Smith, Jr., for the plaintiff.

O. H. Smith, for the defendant.  