
    Bisbey against Shaw.
    Prior to the enactment of the Code of Procedure, the defendant in an action of slander could not give evidence in mitigation of damages which tended to prove the truth of the charge complained of.
    The Code has changed the law in this respect; and the defendant may now allege in his answer the truth of the charge in justification, and also facts tending to prove its truth in mitigation of damages, and although the evidence fails to prove the justification, he is entitled to have it submitted to the jury in mitigation of damages.
    The complaint alleged that the defendant falsely and maliciously stated that the plaintiff was a thief and had stolen from the defendant. The defendant, by his answer, denied each and every allegation contained in the complaint; and for a further answer thereto, alleged that before the speaking of the words complained of, to wit, in August, 1847, at Rochester, the plaintiff did feloniously steal, take and carry away twenty-five bushels of corn, the property of the defendant. The answer further alleged as follows;
    “ And the said defendant, for further answer to the complaint in this action, says, that heretofore, to wit, on or about the 10th day of March. 1847, at the city of Rochester, in said county, he, this defendant, made a certain agreement with the plaintiff that he, the plaintiff, should take a piece of land from him, the said defendant, situate in said city of Rochester, and plant the same with corn, on shares with him, said defendant—the plaintiff to be at all the labor and expense of planting said land with com, and cutting, harvesting and securing the same, and to have as his recompense and remuneration therefor the one-half of whatever com should be raised upon said land; the said com was to be equally divided in the ear between the plaintiff and defendant; the said land was accordingly planted to com by said plaintiff under said agreement, and was cut and harvested by said plaintiff; but the said plaintiff, while cutting, harvesting and securing said com, or immediately after said com was cut, harvested and secured, instead of fairly and honestly dividing said corn equally with said defendant, fraudulently, dishonestly and unfairly secreted, carried away and converted to Ms own use, without the knowledge or consent of said defendant, a considerable quantity of said corn, with intent to appropriate the same wholly to his own use, and to give no account thereof to the defendant; that the same, being discovered by the defendant, he did thereupon charge the plaintiff with having stolen said corn, which the said plaintiff admitted and confessed, and pretended to express great penitence therefor; which above facts the defendant will give in evidence on the trial of this action, in mitigation of any damages the said plaintiff may, by law, be entitled to recover therein.”
    The plaintiff replied, denying the new matter alleged in the answer.
    The cause was tried in 1852, at the Monroe county circuit, held by Mr. Justice T. A. Johnson. The plaintiff proved the speaking by the defendant of the words charged in the comp] amt, and rested. The counsel for the defendant thereupon gave evidence tending to prove that in the year 1847, the parties made an agreement by which the plaintiff was to plant the defendant’s land with com, which the plaintiff was to cultivate, harvest and draw into the barn on the premises, where it was to be divided equally between the plaintiff and the defendant; that after the com was cut, and while the plaintiff was husking it in the field, he took a portion of the com which was husked, from where it lay, and placed it near the fence and covered it with stalks, and on the same day this was removed from the field; that afterwards, on being charged by the defendant with having stolen this com before a division of it, the plaintiff at first denied and then admitted that he had stolen it.
    The justice charged the jury, “ that the proof showed clearly that, at the time of the alleged taking, the plaintiff and defendant were tenants in common of the entire crop of corn, and that each had an equal right to the possession of the whole; that the plaintiff had a right to take one-half at least; and if he took the whole, or any portion greater than his share, before the division, an action of trover even could not be maintained against him for such taking by Ms co-tenant, while he retained the possession, noruntilhehad sold or destroyed the property; that such a taldng could not amount to a larceny, even if taken clandestinely, there being no evidence that there was any intent or design on the part of the plaintiff to charge another with the value of the property taken, and that the justification had therefore failed; that when a defendant spread a justification of a slanderous charge upon the record, he assumed the responsibility of proving it to be true, or the allegation would be deemed false, and a reiteration of the slander; that there could be no half-way justification; that a justification spread upon the record, which was not proved, was an aggravation of the original charge ; and the jury had a right to regard it, for the purpose of enhancing damages as a slanderous charge, deliberately reiterated.”
    
      To each and every part of which charge the counsel for the defendant duly excepted.
    The justice further charged the jury; 11 that the amount of damages, under all the circumstances of the case, was wholly a question for the jury.”
    The counsel for the defendant then requested the justice to charge the jury; “ that, under the issue in this case, they might take the facts proved by the defendant, although they did not amount in law to a justification, into consideration in mitigation of damages.” . But he refused so to charge the jury, but, on the contrary thereof, further charged them; “that the defendant must stand or fall by the justification he had set up and attempted to prove, and could claim nothing by way of mitigation from his evidence, by which he had sought, but failed, to make his charge good.”
    To which refusal of the justice to charge as requested, and to the charge as given, the counsel for the defendant excepted. The jury rendered a verdict in favor of the plaintiff for $500 damages. The defendant applied upon a bill oi exceptions to the supreme court sitting at general term in the 7th district, for a new trial, which was denied, and judgment rendered on the verdict. (15 Barb., 578.) The defendant appealed to this court. The cause was submitted on printed points.
    
      John C. Chumasero, for the appellant.
    
      Hiram, C. Smith, for the respondent.
   Ruggles, J.,

delivered the opinion of the court.

Before the adoption of the Code of Procedure, in a case where the general issue was pleaded alone, without a plea of justification, evidence in mitigation of damages was always'received, unless it tended to establish the truth of the slanderous words. When it had that tendency, it was. excluded on the ground that it was admissible only under a plea of justification. The truth of the words could not' be; proved except under .that plea, because such a defence, without a justification on the record, might operate as a surprise on the plaintiff. And it was held that the same rule, which excluded evidence of the truth of the words in such a case, must exclude evidence tending to establish their truth. This conclusion was, undoubtedly, legitimate when the proof was offered for the purpose of a justification, or without an express disclaimer of such purpose ; but it seems to me as plainly otherwise, when the offer was made expressly with a view of showing that the words were spoken in a mistaken belief of their truth, and accompanied by an admission of their untruth. But evidence so tending to prove the truth of the words was excluded by the uniform practice of the courts, although the offer was expressly limited to the purpose of mitigating damages. The courts were driven to the adoption of this practice, by the apprehension that the admission of such evidence, under pretence of mitigation, would enable a defendant, by accumulating facts and circumstances before the jury, all tending to prove the truth of the words, to work into the case a practical justification, without notice to the plaintiff that the defendant intended to justify. This would have been doing great injustice to the plaintiff. But the defendant, on the other hand, suffered equal or greater injustice by the exclusion of the evidence ; because in many cases it prevented him from showing that the words alleged to .be malicious were spoken in the honest belief that they were true, with abundant reason for such belief, and without actual malice or evil design. Under the law, as it then stood, there was no provision by which a defence in mitigation of damages could be put upon the reccrA, in the form either of a plea or notice. It was admissible under the general issue, except when the facts offered in mitigation tended to prove the truth of the defamatory words. In that case it was held to be open to the objection that it might take the plaintiff by surprise, and therefore rejected. This was the only ground on which such a defence could, with any reason or plausibility, be excluded. And because, by the technical rales of pleading, the defence could not legally be put upon the record, a written notice of it, annexed to the plea or otherwise given, was treated as a nullity; and by strict adherence to this technical rule, the defence was excluded, although the notice had in fact been given, and the plaintiff had been fully informed of its particulars in time to be prepared to meet it on the trial.

I will now speak of the law previous to the Code, upon a case in which a justification was pleaded. In such a case, the justification on the record was held to be a deliberate reiteration by the defendant of the slanderous words, after having had the opportunity of inquiring whether they were true or false. It was adjudged to be conculsive evidence of malice. Proof tending to establish the truth of the words was admitted under such a plea; but if the proof fell short of establishing that the slanderoús allegation was true,- the jury was directed, as in the case under consideration, to disregard it as evidence in mitigation of damages, although it clearly established that the words complained of were spoken in a mistaken belief that they were true, without actual malice, and with honest and even laudable motives. The result was, that until the adoption of the Code a defendant could, under no state of pleading on the record, introduce evidence in mitigation of damages,' whenever, as generally happened, the evidence tended to prove, or formed a link in the chain of proof, to show the truth of the words complained of as slanderous.

This was a subject of great complaint. The Code has altered the law and removed the difficulty. Section 165 is as follows; “ In the actions mentioned in the last section” (actions for libel and slander) “ the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and and mitigating circumstances to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances.”

The learned judge, before whom the cause was tried, charged the jury as if the statute above quoted had not essentially altered the law. He refused to charge “ that under the issue between the parties they might take the facts proved by the defendant into consideration in mitigation of damages, although they did not amount to a justification ;” and on the contrary, he told the jury “ that the defendant must stand or fall by the justification he had setup and attempted to prove, and could claim nothing by way of mitigation from his evidence, by which he had sought, but failed, to make his charge good.”

The judge seems to have proceeded upon the ground that, although the Code has permitted the defence in mitigation of damages to be put upon the record, it has not abrogated the former rule by which the justification was regarded as conclusive evidence of malice. In this, in my opinion, he decided erroneously. By enabling the defendant to put his defence in mitigation upon the record, the Code removes the technical objection of surprise, on which the defence was formerly excluded; and by authorizing the defendant to couple the defence in mitigation with a justification in his answer, the defendant is enabled to avail himself of either one or the other, according to the case he makes out in proof. It would be idle to allow him to prove the mitigating circumstances, if, when proved, the jury is to be directed to disregard them because he fails to prove his justification. If the defence in mitigation is to be ruled out or disregarded, the statute has accomplished nothing by authorizing its admission.

The facts stated in the second branch of the defendant’s answer were clearly proper to be proved in mitigation of damages. The facts thus stated were, that the plaintiff had secretly and fraudulei tly taken and carried away corn belonging, in part, to the defendant, under circumstances which induced the plaintiff himself to believe that the taking was larceny; and that he declared that belief by confessing that he had stolen the property. The jury, on these facts, might well have found that if the plaintiff, himself thought he had stolen it, the defendant might honestly and without malice have believed so, when he spoke the words complained of as defamatory. The act of taking the corn as described in the notice differed very little from larceny in its moral character. The evidence should have been submitted to the consideration of the jury, not only to show that the words were spoken without deliberate malice, but also for the purpose of showing that for words spoken under such circumstances the plaintiff was not worthy to have a verdict for exemplary damages.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Judgment accordingly.  