
    Buhler vs. Wentworth.
    In an action for slander the defendant may deny the uttering of the words, and as an additional defense set up by way of justification that the words, if spoken, were true. Clerke, J. dissented.
    Appeal from a decision made at a special term, allowing two defenses to be separately stated, in an action for slander.
   Roosevelt, J.

The plaintiff sues for slander, and alleges that the defendant falsely accused him of cheating. The defendant answers, first, “ I have no recollection or belief of having so accused you; but, secondly, if I did, the charge was true.” And the question is, does the code admit of such a mode of pleading % That it is a natural mode of -meeting the complaint all must admit; that it was a lawful one before the code, in the form of a notice annexed to the general issue, will also be conceded. Is the code, then, a narrowing or a liberalizing system ? Its well known origin and history answers this question. It contains, besides, an express provision on this very point. The defendant may, it says, set up “ as many defenses and counter claims as he may have.” Bach, of course, should be separately stated, and be consistent with itself; but no rule of law requires that it should be consistent, not only with itself, but with every other defense, which a proper forecast may interpose. It may be that, although a person honestly believes he never used the expressions attributed to him, and although perhaps, in point of fact, he never did use them; yet, the bystanders, from misapprehension or other cause, may have understood him differently. And should these bystanders, called as witnesses on the trial, honestly, or otherwise, swear to a mistaken version of the transaction, must the injured party not only submit, as he must, to that injustice, but be deprived also, as a further consequence, of another and confessedly good defense, namely, a complete justification of the charge, if in truth it were ever made 1 So to interpret the code, and the ¡headings under it, would hardly be said to be calculated to promote' “ substantial justice between the'parties.” And if there be any one duty, more than another, enjoined on the judges under the neAV system, it is that which is implied in the Avords just quoted. Substantial justice, as distinguished from artificial niceties and technical refinements, is made the star and compass, Avhich for the future are alone to guide the course of judicial exploration. For one, I do not regret the change, if change it be. The old light houses, although at times useful, it must be admitted, Avere the causes of frequent shipwrecks; as many a disappointed practitioner and ruined client could no doubt feelingly testify.

My conclusion is that the decision at special term, allowing the two defenses to be separately stated, was right, and ought to be affirmed, with costs.

Mitchell, P. J,, concurred.

Clerke, J.

The complaint alleges that the defendant had charged the plaintiff with cheating in his business. The defendant traverses the complaint, and, as an additional defense, sets up, by way of justification, that the plaintiff did cheat in Ms business. Can this be allowed 7 Can the defendant be permitted to deny the allegations in the complaint, and at the same time claim the right to prove the truth of the words, which he positively swears he never uttered 7

Under the original system of pleading, before its symmetry Avas disfigured by ill considered legislation, and judicial expedients, equally unAvise, one of its most prominent and inflexible rules was, that matter in confession and avoidance could not be combined with a traverse. Among the many evils introduced by the “ general issue,” and one of its most mischievous anomalies, was the alloAvance of inconsistent pleas. The statute of 4 Anne, chap. 16, adopted by us, allowing several matters to be pleaded, (in itself a useful provision,) prepared the way for this innovation. TMs statute' required that the leave of the court should be first obtained ; and in the beginning courts refused to permit several defenses, Avhere they appeared to be inconsistent, such as pleading to the same trespass not guilty, and accord and satisfaction, or non est factum and payment to the same demand. (Cornyn’s Digest, Pleader, E. 2.) But, when in the course of time, the rules of pleading were nearly abrogated, by allowing a defendant to prove almost any thing under the general issue, or to plead any matter in addition to it, of course inconsistent pleas were tolerated; every special plea in bar being inconsistent with the “ general issue.” This was a deviation from a most salutary principle. It was utterly at variance with the original purpose of those preliminary statements, which we call pleading, to allow a party to deny the allegations of his adversary, and, at the same time, to set up matter contradictory of his denial. This would defeat one of its most convenient objects, which is to compel the parties by the operation of their mutual allegations to elicit, as nearly as possible, the precise issue to be tried ; thus saving to the parties and the court, at the trial, the labor' and delay of an unnecessary accumulation of evidence. Now, for this, if for no other or higher end, they should allege the truth, and nothing but the truth; if, however, you allow a defendant to deny the charge in the complaint, and in the same breath to justify it, you encourage him to assert what is false, by doubly fortifying his chances of success. Thus, as under the practice established under the general issue, (which, if not already, I hope soon will be, defunct, he would have the chance of succeeding not only on the strength of his own case, but by the failure of the plaintiff’s proof. It is of the essence of an answer in justification or excuse to confess the allegation, Which it proposes to answer or avoid: and if the defendant does not confess the allegation,.but traverses it, th'e truth or falsehood of that allegation is the only issue for the court to try.

In endeavoring to get rid of the useless formula, the complexity, and subtleties of the science of pleading, the legislature did not intend to abolish its essential principles. It has abolished the forms of action, and all useless and merely scholastic distinctions, as well as every technicality calculated to render any system of preliminary altercations nugatory. In numerous instances, since the adoption of the code, these principles have been recognized and applied, and in cases precisely similar to this they have been frequently asserted and recognized. (Anibal v. Hunter, 6 How. P. R. 255. Lewis v. Kendall, Id. 59.)

In Arnold v. Dimon, (4 Sandf. S. C. R. 680,) Oakley, J. declares the rule on this subject to be, “Where facts are alleged in an answer, which, from their nature, must be within the personal knowledge of the defendant, and which, if true, are a complete answer to the claim, he shall not set up in addition another state of facts not consistent with the previous defense.”

If the defendant in this action has uttered the words charged in the complaint, and denies the charge, he is asserting what he knows to be false ; he knows whether he uttered them or not, and we must not sanction falsehood by allowing him to justify. If he has not uttered those words, we have nothing to do with the character or conduct of the plaintiff; that can only be inquired into in reference to the justification of the defendant for uttering them: We have neither the disposition nor the time to investigate character or conduct, as independent subjects of inquiry; and the only issues which can arise on the trial of this action, are, 1st, did the defendant utter the words charged in the complaint ? 2nd, if he did, are they true 1 the truth being a justification. The objection is offered, that if the defendant is not permitted to justify, the plaintiff may, by possibility, prove by false witnesses that the defendant uttered the slander charged'in the complaint, and he would then be without redress, unless he could fall back upon the justification, and prove the truth of the charge. But is not the plaintiff, in this respect, as much in the defendant’s power as the defendant is in the plaintiff’s % For aught we know, the defendant is as capable of proving the truth of the charge by perjury, as is the plaintiff of proving the utterance of the slander, by the same means.- We are not to act in reference to such a contingency, arising from either side. The only protection the law affords against false evidence consists in the pains and penalties of perjury, after it is committed. If such an apprehension were to find any place in our deliberations, it would require either a complete restoration of the old system in all its amplitude, or the abolition of preliminary statements altogether.. To guard, for instance, against the danger of an insufficient statement of the cause of action, or the hazard of the proofs varying materially from the statement, or against a doubt 'existing as to the legal sufficiency of one or another of two or more different modes of framing a count, we ought to have the old declaration with its prolixity, repetitions and numerous counts, not forgetting the general issue, with the license of pleading or proving any thing and every thing under it j or, I should prefer, if the possibility of perjury under such circumstances is so imminent as to counterbalance the advantages of pleading, that the system should be abolished altogether, and the parties permitted to go to trial without preliminary altercations. The only purpose then, for which this matter alleging the truth of the charges in the complaint could be retained, is to show mitigating circumstances; but it is only where the defendant confesses and avoids, that he can show mitigating circumstances. ( Graham v. Stone, 6 How. Pr. Rep. 15. Newman v. Otto, 4 Sand. S. C. R. 668. Fry v. Bennett, 5 Id. 54.)

I entirely concur with Judge Johnson, in Graham v. Stone, in all the positions he supports in that case; and although other judges have not acquiesced in his conclusions, that mitigating circumstances must necessarily be pleaded in connection with a justification, to me it is clear that they cannot, at all events, be pleaded, where the defendant denies the charges in the complaint. The decision of the special term, then, ought to be reversed.

I have dwelt somewhat longer on the subject of this appeal than its importance at first sight would seem to require; but, I think, we should avail ourselves of every opportunity of constructing a rational system of pleading, by which the great end of' all preliminary statements may be accomplished; and this can only be done by retaining all that is conducive to this end, in the original system, and lopping off all that is at variance with it. While we studiously avoid the subtleties, the fictions, the scholastic distinctions, and useless formula of that system, together with the later innovations, by which its primary object was entirely frustrated, we can preserve those principles originally belonging to it; by which issues may be developed by the effect of the parties’ mutual allegations, and materiality, singleness and certainty in those issues secured, and obscurity, prolixity and delay avoided. The code enables us to do this effectually; and as every successive occasion presents itself, we shall have abundant opportunity, by combining practical experience with our theoretical knowledge of those principles, to construct a system, surpassing any yet established, in facilitating the administration of justice.

[New-York General Term,

May 1, 1854.

Mitchell, Roosevelt and Clerke, Justices.]

Order of the special term affirmed.  