Bisbey vs. Shaw, 15 Barb. 578

Welles, P. J. It seems to me that the case of Bush v. Prosser, recently decided by the general term in this district, (13 Barb. S. C. R. 221,) disposes of the motion in the present ease ; and that if that case was properly decided, the verdict in this should not be disturbed. Whatever might be my individual judgment upon the question of the correctness of the principles held in the case referred to, I should feel bound by them until overruled by paramount authority.

But it is but just t'o add, that after a full and deliberate examination of all the decided eases upon the subject, to which I have had access, there is, in my -judgment, no escaping: the conclusions arrived at by Mr. Justice. Strong in that case. ' I have been referred to, and have examined, a very interesting opinion in the case of Follett v. Jewett and Foot, published in the July number of the N. Y. Legal Observer, and in the August number of the American Law Register of the pr.esent year.

It seems to me, with all due respect for the justice who wrote the opinion, for whose legal accuracy I entertain the highest respect, that he has adopted the fallacy, that the 165th

section of the code has changed the law as to what constitutes a mitigating circumstance in the action of slander, and that facts, which before the code, were not regarded in that light, may under the

section referred to, be received in evidence, with a view to reduce the amount of damages 5 whereas no such thing is said, or, as I think, was intended in the section. Its only effect, in my judgment, is to preclude' the defendant, in any case, from giving evidence in such action, of any fact in mitigation merely, unless it has been alleged with that view in the answer. Before the code, such evidence was admissible under the general issue or plea of not guilty, now it must be set up in the answer.

The only inquiry then, in the present case,, is, whether the evidence given in relation to the plaintiff’s having taken the corn, which confessedly belonged to himself and the defendant as tenants in common, might have been regarded by the jury in mitigation of damages. The judge charged the jury that the" defendant could claim nothing by way of mitigation,, from that evidence. In this, I think he was right. The evidence amounted to a justification, or nothing.

It would be not Only against law, but contrary to good morals, to allow a defendant to mitigate a slanderous charge which he had made against another, by proving acts of the plaintiff which he erroneously believed constituted the offense of which he had accused him, when in fact, if the proof established any crime, it was one differing in its nature and grade from the one charged. As well might he be permitted to prove, in an action for accusing the plaintiff of highway robbery or perjury, that he had been guilty of petit larceny, or an assault and battery.

It is not a mistake of the law of which he can avail himself, even in mitigation. The defendant in this case is chargeable with knowledge that the facts proved by him, and which he desired to have the jury consider in mitigation of damages, not only did not constitute the crime of which he accused the plaintiff, but that they did not establish any offense whatever of which the law takes cognizance. The facts and circumstances tending to disprove malice, by showing that the defendant, though mistaken,- believed the charge true when it was made; and which may be given in evidence in mitigation, (Cooper v.

Barber, 24 Wend. 107,) must be such as tend to show he was mistaken in the facts, as in the case of Gilman v. Lowell, (8 Wend. 573,) where the charge was that the plaintiff had sworn falsely in making oath that he was a freeholder, and that his deed was recorded, and where the court held that the defendant was entitled to show in mitigation that on search for the deed in the clerk’s office, it was not found, owing to a mistake of the recording officer in indexing his records.

Upon the same principle, I suppose, in a case where the corpus delicti in question was established, evidence would be received in mitigation, to show that it was committed by a person resembling and personating the plaintiff. Such evidence would tend to show mistakes of fact merely, without imputing any offense to the plaintiff. It would not, in the language of the books, “ tend to prove the truth of the charge,” but would on the contrary, proceed on the assumption that it was untrue, and would be consistent with the entire innocence of the plaintiff. [Monroe General Term, September 5, 1853. Welles, T R.

Strong and Selden, Justices.] But such cases bear no analogy to the one under consideration, where the defendant has assumed the responsibility of making the unqualified charge, that the plaintiff was a thief and had stolen his corn, and now asks to be relieved from a portion of the consequences of his temerity, by alleging his ignorance of the law in relation to.the constituents of the crime of larceny.

There is no force in the point raised upon the argument, complaining of the charge of the judge, that under the evidence, a larceny of the property could not be committed by the plaintiff, admitting the same to have been clandestinely taken. The law upon the subject has been too long and too well settled to admit of discussion. I think a new trial should be denied. T. B. Strong, J. concurred. Selden, J. dissented, ÍTew trial denied. 11 Leg. Obs. 193. 1 Am. Law Reg. 600.