Third. And for a third and further defence in this action, the defendant alleges, that before the time of speaking the words mentioned in said complaint, to wit, on or about the day of a certain gold watch of the value of $100, the property of one John Brown, had been feloniously carried away and stolen from his possession, at the town of; that said plaintiff, on the complaint of the said -, made in writing under oath, before G. H., Esq., a justice of the peace of said county, and on the warrant of said justice, was, on or about the day of, and before the speaking of said words, actually arrested, on a charge of larceny in stealing said watch, and was examined before said justice on said charge, and, from the circumstances aforesaid, defendant charge is made in general terms (as above), the justification must be made by a specification of the facts relied on to establish its truth. (Fry v. Bennett, 5 Sand., 54.) But even in such a case, a general averment that the charge is true, it is thought, could be reached only by motion to make the pleading more definite, and would be good on demurrer. So held in the case of a privileged communication, Van Wyck v. Guthrie, (4 Duer, 247). The defendant, in his answer in an action of slander, may allege both the truth of the charge in justification, and, also, facts tending to prove its truth in mitigation; and although the evidence fails to prove the justification, he is entitled to have it submitted to the jury, in mitigation of damages. (Bisby v. Shaw, 2 Kernan, 67.) And under a general denial in libel, defendant may prove anything, in mitigation, which does not tend to a justification, but falls short of that. (Stanley v. Webb, 21 Barb., 148.) He may, also, deny each and every allegation in the complaint; that is, deny that he ever spoke the words, and, also, justify their truth; for his right to justify does not depend upon his admitting the speaking of words which he never did speak. (Ormsby v. Douglass, 5 Duer, 665, agreeing with Hollenbeck v. Clow, and similar cases holding that such defences are not inconsistent; see note, ante, p. 552. As to his right plead in mitigation, without any denial or other defence, see note to No. 46, post, p. 613.) had good reason to believe, and did believe, that said plaintiff was guilty of said charge, and that the words in said complaint alleged to have been spoken were at the time true. And said defendant alleges, that said words were spoken in reference to said judicial proceedings, and before he heard or was informed that said plaintiff had been actually discharged from arrest, on said warrant, and were spoken without malice against said plaintiff, or any intent to injure him, and he, the said defendant, believing at the time that the same were, in all respects, true. And the defendant will insist upon, and attempt to prove, the facts in this defence set forth in mitigation of damages.1 S. & V. S., Defendant's Attorneys. (No. 45.) Answer of justification in slander, and setting up facts in mitigation of damages.2 SUPREME COURT. Edwin P. Green agt. William Telfair. [After setting forth other matters of defence to first cause of action.] 1 The defendant might probably plead in mitigation, that the general character of the plaintiff was bad; although he would not be allowed to plead that the plaintiff had the reputation of being a thief or addicted to stealing, because evidence of a general report that the plaintiff had been guilty of the crime imputed to him, was never admissible in this state, and such allegations will, therefore, be struck out as irrelevant. (Van Benschoten v. Yaple, 13 How., 97.) 2 This is a portion of the answer interposed to complaint No. 60, ante, p. 468 Second. And this defendant, for a further answer and defence, to the second cause of action, set forth in said complaint, says: That as to the speaking of the words charged in said second cause of action, viz: that she, the said Rebecca Southard, froze to death, and died from Green's neglect, and that he, the said plaintiff, starves the paupers, and generally as to the said Rebecca Southard having frozen to death, and the paupers being starved or not provided with sufficient to eat, this defendant says that he is ignorant of the precise terms employed by him, but admits that he did make the said charges in substance, and he alleges and charges that the same are substantially true, and he justifies the same.1 Third. And as to said second cause of action the defendant alleges and will prove, in mitigation of damages, that the said Rebecca Southard was found dead in a cell attached to the county poor-house; that she had been, previous thereto, an infirm and invalid pauper; that she required warm and comfortable accommodations; that her cell was without fire or other necessary comfort, and that she was thereby exposed to an improper degree of cold; that she was not provided by the plaintiff or any other person with a sufficient bed, bedding, wearing apparel, or proper care or attention; that the cell where she died was not a proper or fit place in which to put an invalid in her situation, and that in consequence thereof, and by reason of the cold and exposure, she died; and that this defendant was so credibly informed, before the speaking of said words and making said charges. 'In this case the slanderous charges are specific, and a general averment of their truth, as above, is a sufficient justification. (Van Wyck v. Guthrie, 4 Duer, 247; and see note, ante, p. 609.) Had it been a general charge, that the plaintiff had stolen, as in the foregoing precedent, or sworn false or committed perjury, the justification should set forth the facts relied on to establish its truth. And the defendant further alleges and will prove, that she and other paupers were not provided with enough to eat; that they made frequent complaints upon that subject to the defendant, who was physician to the county poorhouse, and coroner, in his official capacity, and also to his son, who was his assistant therein; that they complained that they were not provided with enough to eat; and this defendant credited and believed said complaints, and information to the same effect from other credible sources, and, so believing, stated in substance that said plaintiff starved said paupers, or did not provide them with enough to eat. And as to each and all of the residue of the matters set forth in the said complaint, not hereinbefore specifically answered unto, this defendant denies the same. HOGEBOOM & COLLIER, Defendant's Attorneys. (No. 46.) Answer in libel, setting forth facts in mitigation of damages alone.1 SUPERIOR COURT-CITY OF NEW-YORK. Charles T. Shelton The abovenamed defendant, answering the complaint in this action, alleges the following facts and circumstances, in mitigation of damages: 2 1 To Complaint No. 59, Part III., ante, p. 465. 2 The answer, as printed in the text, consists entirely of matter in mitigation. The answer, as actually interposed to the complaint, contained the following introductory denials and admissions: That publication was made in the course of the business of this defendant, as a public journalist, this defendant having been informed and believing the truth thereof, at the time of publishing the same, and without any ill will or intent to injure or defame the said plaintiff, but for the purpose of disseminating among the persons, subscribers to said newspaper, information which this defendant be "The abovenamed defendant, answering the complaint of the plaintiff in this action, says, that he is not guilty of the malice and wrongful misconduct in said complaint laid to his charge. "The said defendant admits that he is the editor and proprietor of the 'Evening Mirror,' and that the publication set forth in said complaint was, as therein stated, printed and published in said paper at or about the time for that purpose in said complaint mentioned; but he denies that the same was either slanderous, malicious or defamatory." The Supreme Court, at Special Term, held the entire answer frivolous, and ordered an assessment of damages, the defendant, of course, being at liberty to prove his mitigating circumstances on such assessment. It has been thought to be still a question, notwithstanding the cases of Bush v. Prosser (1 Kernan, 347), and Bisbey v. Shaw (2 Kernan, 67), whether a defendant, if he neither denies any material allegation in the complaint, nor justifies the truth of the charge in an action of slander or libel, may be allowed to set up, as a defence, mitigating circumstances alone, see Voorhies' Code, 5th ed., note to § 165; see, also, Pleadings, 488, note. The subject has been considered by Justice HARRIS in a recent case (Van Benschoten v. Yaple, 13 How., 97), and the effect of these decisions of the Court of Appeals has been held to be to settle the law of pleading as follows: That in all cases of libel or slander, a defendant may allege in his answer, and prove, with any defence he may have, or without any defence at all, mitigating circumstances; and facts tending to prove the truth of the charge are now to be regarded as mitigating circumstances. And such, I believe, is now the settled rule in the third district. Under such a rule, of course, the answer in the text would not have been considered frivolous, and on the authority of that decision I have inserted it as a proper defensive answer. |