
    Wilson v Apple.
    In slander, defendant has a right to give facts not amounting to a justíñcatioj. in evidence to mitigate damages.
    Tried before Judges Burnet and Sherman, in Clermont .county, 1827.
    This was an action of slander. The words laid in the declaration are: You are a thief; you have stolen geeso. The defendant pleaded the general issue, and at the trial offered to prove, in mitigation of damage, that the plaintiff had driven away from one Benjamin Wilson a flock of geese belonging to said Wilson. This evidence was objected to and overruled. A bill of exceptions was taken, and a writ of error brought to reverse the judgment.
    Mooreiiead, for plaintiff,
    cited 2 Peake, 283; 2 Camp. 221; 2 Bos. & Pul. 224; 1 Ld. Raym. 727.
   By the Court :

Although the evidence rejected doesnot seem to be vary material, yet as the fact offered to be proved might, at the time of the speaking of the words, have had some influence in misleading the defendant, he had a right to prove it for tho purpose of reducing the malice.

There is a difference between a justification and an excuse. The one goes to the right of recovery, the other to the amount to be recovered. For the purpose of showing malice, the plaintiff may prove tho speaking of words not charged, if they be not actionable and with a view of extenuating malice, the defendant may prove, under the general issue, any eireumstance connected, with the transaction tending to show that he had probable ground for believing the truth of the words.

In estimating the damage, -the degree of malice is always *to be' considered. Any circumstance, therefore, tending to show that the defendant spoke the words under a mistake, or that he had some reason to believe they were true, is entitled to consideration, and is proper evidence to be received in mitigation. What effect this evidence.might have we know not, nor is it necessary to know. We are satisfied it was legal, and that the defendant had a right to use it for the purpose for which it was offered.

The judgment, therefore, must be reversed and the cause remanded for further proceedings.-  