1. Defences in Tort.

(b.) LIBEL AND SLANDER.

Precedence is given to this class of actions, as being the only one, as to the defence, in which express provision is made by the Code.

That provision is contained in section 165, and is, that in these two actions "the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages; and, whether he proves justification or not, he may give in evidence the mitigating circumstances."

By this section, the former technical rules on this subject are completely abrogated. Justification, when pleaded unsuccessfully, is no longer, as heretofore, conclusive evidence of malice, and matter in aggravation. And the defendant is now at perfect liberty to aver, and to prove upon the trial, any facts whatever, which tend to mitigate the amount of damages, by showing an honest belief on his part, or otherwise, though such matter tend to prove the truth of the charge. Nor is it essential, though admissible under the terms of the section, that the allegation of mitigating circumstances should be combined with the defence of justification. They may, on the contrary, be pleaded separately, and without any averment of the truth of the charge. See these principles, as established by Bush vs. Prosser, 1 Kern., 347; reversing same case, 13 Barb., 221; and Bisbey vs. Shaw, 2 Kern., 67; reversing same case, 15 Barb., 578. See also Weed vs. Bibbins, 32 Barb., 315.

The former of these cases overrules in terms, and both of them in substance, Graham vs. Stone, 6 How., 15; and Brown vs. Orvis, 6 How., 376. Fero vs. Rosco, 4 Comst., 162, there alluded to, is a decision under the previous law. Both cases also overrule, in substance, the following, holding the stricter view: Meyer vs. Schultz, 4 Sandf., 664; Fry vs. Bennett, 5 Sandf., 54; 9 L. O., 330; 1 C. R. (N. S.), 238; Matthews vs. Beach, 5 Sandf., 256; Lane vs. Gilbert, 9 How., 150; Loveland vs. Hosmer, 8 How., 215; Herr vs. Bamberg, 10 How., 128; Ayres vs. Covell, 18 Barb., 260; Lewis vs. Kendall, 6 How., 59; 1 C. R. (N. S.), 402.

The doctrine held on the subject in the following cases is, on the contrary, confirmed and established by the two decisions in question. Stiles vs. Comstock, 9 How., 48; Follett vs. Jewitt, 11 L. O., 193; Heaton vs. Wright, 10 How., 79. They are followed, in Howard vs. Raymond, 11 Abb., 155; and also, but with some hesitation, in Van Benschoten vs. Yaple, 13 How., 97.

The above two cases of Bush vs. Prosser and Bisbey vs. Shaw, also establish the principle, that the defences of denial and justification

may be combined in the same answer, if separately stated. See also Butler vs. Wentworth, 17 Barb., 649; 9 How., 282; Ormsby vs. Doug lass, 5 Duer, 665. They overrule, on this point, Ormsby vs. Douglass, 2 Abb., 407; Anibal vs. Hunter, 6 How., 255; 1 C. R. (N. S.), 403; Lewis vs. Kendall, 6 How., 59; 1 C. R. (N. S.), 402; Porter vs. MeCreedy, 1 C. R. (N. S.), 88; Buddington vs. Davis, 6 How., 401.

In pleading a justification, where the libel or slander complained of is of a general nature, the facts which establish it must be pleaded. A mere general allegation, that "what the defendant said of the plaintiff was true," or to the like effect, will be wholly insufficient. Anon., 3 How., 406; Sayles vs. Wooden, 6 How., 84; 1 C. R. (N. S.), 409: Anibal vs. Hunter, 6 How., 255; 1 C. R. (N. S.), 403; Fry vs. Ben nett, 5 Sandf., 54; 1 C. R. (N. S.), 238; 9 L. O., 330; Ormsby vs Douglass, 2 Abb., 407; Jaycocks vs. Ayres, 7 How., 215. And the jus tification must cover the whole ground of the libel. Loveland vs. Hos mer, 8 How., 215.

But, where the charges of libel in the complaint are specific, a genera averment in the answer of their truth, will be a sufficient plea of justifi cation. Van Wyck vs. Aspinwall, 4 Duer, 268; affirmed, 17 N. Y., 190.

An answer, averring the truth of the charge, on information and belief, has also been held a sufficient plea of justification. Steinman vs. Clark, 10 Abb., 132. And, in answer to a general charge of theft, specific acts tending to prove its truth may be pleaded, in addition to those immediately relied on by the plaintiff, as constituting the direct slander complained of. Jaycocks vs. Ayres, 7 How., 215. See, generally, as to the defence of justification, Fry vs. Bennett, 3 Bosw., 200; Fulkerson vs. George, 3 Abb., 75.

The better rule seems to be, that matter in mitigation should in all cases be pleaded. Anon., 6 How., 160; Russ vs. Brooks, 4 E. D. Smith, 644. See also Van Benschoten vs. Yaple, 13 How., 97; Stiles vs. Comstock, 9 How., 48. The contrary conclusion, as come to, in Anon., 8 How., 434; Newman vs. Otto, 4 Sandf., 668; 10 L. O., 14; and Stanley vs. Webb, 21 Barb., 148, seems to be founded upon the state of the law previous to the enactment of the section in question, which expressly authorizes allegations of this nature.

The question, as to whether such matter may not be proved on the trial, or before a sheriff's jury, in mere mitigation of damages, even under the general issue, seems, however, to be by no means free from doubt.

The following is laid down generally, as the rule with reference to privileged communications, in Van Wyck vs. Aspinwall, 17 N. Y., 190 (193); affirming same case, 4 Duer, 268: "A communication made, bona fide, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged,

if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege, would be slanderous and actionable." And such duty " will not be confined to legal duties, but must include moral and social duties, of imperfect obligation."

Accordingly, in that case, a report from a committee of the College of Pharmacy, to investigate complaints as to the adulteration of drugs, was held to be privileged.

The subject of what are or are not privileged communications, has already been treated in detail, and the decisions in point cited, under the head of Complaint, in book VII., chapter II., section 142, to which the reader is accordingly referred.

Where the words complained of are privileged, per se, as for instance, as having been spoken or written in the course of a legal proceeding, being material to the controversy, no denial of malice need be made, on setting up the defence on this ground. Garr vs. Selden, 4 Comst., 91. As to the two different classes of privileged communications, see Purdy vs. Carpenter, 6 How., 361 (366).

When the proceeding is not of this nature, it may, nevertheless, in the absence of express malice, be claimed to be privileged. If express malice is averred, it must, of course, be denied; and, where privilege is claimed on the ground of the publication complained of, being legitimate criticism, the defences of truth and privilege should both be pleaded. See Fry vs. Bennett, 5 Sandf., 54; 1 C. R. (N. S.), 238; 9 L. O., 330. As to express malice being a legitimate part of the issue, in this latter class of cases, but not under other circumstances, see Bush vs. Prosser, 1 Kern., 347 (355); Howard vs. Sexton, 4 Comst., 157; Purdy vs. Carpenter, 6 How., 361.

(c) ASSAULT AND BATTERY.

The provisions of section 165, as above cited, not extending further than to cases of libel and slander, the old rules will prevail, and mere matter in mitigation, standing alone, will not suffice to constitute a defence. Such matter merely goes in reduction of the plaintiff's claim for damages, not in denial of his cause of action, and, as such, it may be proved upon the trial or before a sheriff's jury, without being specially pleaded. See Lane vs. Gilbert, 9 How., 150; Saltus vs. Kip, 12 How., 342; 5 Duer, 646; 2 Abb., 382; Rosenthal vs. Brush, 1 C. R. (N. S.), 228; Roe vs. Rogers, 8 How., 356; Gilbert vs. Rounds, 14 How., 46; Schnaderbeck vs. Werth, 8 Abb., 37. As to the nature of such evidence, see Corning vs. Corning, 2 Seld., 97. The cases which held that matter in justification, could not be pleaded in connection with a denial, seem to be clearly overruled.

The only restriction is, that the defences must be separately stated. See above, section 176.

As to the plea of self defence, and when it will or will not be admissible, and as to the extent to which proof of provocation may or may not be available, on the question of damages, see Keyes vs. Devlin, 3 E. D. Smith, 518.

As to the plea of leave and license, to commit an assault, without battery, and the propriety of not excluding evidence in rebuttal, see Van Voorhis vs. Hawes, 12 How., 406.

(d.) FALSE IMPRISONMENT, AND MALICIOUS PROSECUTION.

Probable cause, when pleaded as a defence, may be pleaded in general terms; nor is it necessary, or even proper, for the defendant to set out, in detail, the facts on which he relies to sustain the general proposition. They are merely matters of evidence. Radde vs. Ruckgaber, 3 Duer, 684.

In relation to the subject-matter of this defence, and its incidents, see heretofore, under these heads, in book VII., chapter II., section 142, and decisions there cited.

As to the necessity of the whole ground of the complaint being covered by a plea of this description, where the suit is one in which several grounds of action are combined, sce Foster vs. Hazen, 12 Barb., 547.

(e.) SEDUCTION, BREACH OF PROMISE, &C.

The essentials of these actions, including the principal grounds of defence, by which they may be met, have also been considered, as above, in section 142. See especially, as to the defence of connivance, in seduction, Travis vs. Barger, 24 Barb., 614; and as to the action for enticement away of a feme covert, Barnes vs. Allen, 30 Barb., 663, there cited.

In this class of actions, as in those last considered, matters in mere mitigation of damages are not waived by not being specially pleaded, but may be given in evidence under an ordinary denial; but matter going in complete bar of the cause of action must be pleaded. Travis vs. Barger, supra; Smith vs. Waite, 7 How., 227. So also in an action for crim. con. Harter vs. Crill, 33 Barb., 283.

A former marriage of the defendant, unknown to the plaintiff, constitutes no defence. Blattmacher vs. Saal, 29 Barb., 22; 7 Abb., 409. A subsequent offer on the part of the defendant, if refused by the plaintiff, will, however, be a bar to the action. Liebmann vs. Solomon, 7 Abb., 409, note.

Actions for Breach of Duty or Contract.

(f) ESCAPE.

The essentials of the sheriff's liability in this form of action, or when he is sued as bail, for want of justification by those originally given, have already been considered, and the principal decisions in point cited, under the head of Sheriff's Liability, in book I., chapter VII., section 28, and also in book VII., chapter II., section 143, to which the reader is accordingly referred.

The defendant, in an action of this description, cannot go behind or impeach the validity of the process under which he has acted, on any ground of mere irregularity. Renick vs. Orser, 4 Bosw., 384. Nor on the ground that there had in fact been a prior escape of the prisoner, and a return by him into custody, so as to bring the case within the operation of the limitation in section 94, when such escape and return were without the knowledge of the plaintiff. Same case.

But, if the original process was absolutely void, it may be shown, by way of defence. Carpenter vs. Willett, 6 Bosw., 25; 18 How., 400. Where the escape is from arrest on mesne or interlocutory process, insolvency of the prisoner is available as a defence. Loosey vs. Orser, 4 Bosw., 391. But otherwise, when the action is brought, as in debt, for the escape of a prisoner charged in execution. Barnes vs. Willett, 35 Barb., 514; 12 Abb., 448; affirming same case, 19 How., 564; 11 Abb., 225; Latham vs. Westervelt, 26 Barb., 256; McCreery vs. Willett, 23 How., 129; affirming same case, 4 Bosw., 643. See, however, Daguerre vs. Orser, 10 Abb., 12, note. So also, where his liability is that of bail. Metcalf vs. Stoyker, 31 Barb., 62; 10 Abb., 12.

The voluntary return of the prisoner, before summons actually served, forms a complete defence. Wiggins vs. Orser, 5 Duer, 118. See also, as to the limitation of an action of this description, which must be brought within one year, Code, section 94.

Assent by the attorney of the plaintiff to an absence amounting to an escape, will not, unless fraud be shown, be available as a defence. Lovell vs. Orser, 1 Bosw., 349.

In pleading recapture, or a voluntary return, the answer must distinctly aver that the escape was made without the consent of the defendant." If omitted, the defence will be insufficient, nor will any hypothetical statement to a similar effect satisfy the requirements of the statute. Loosey vs. Orser, 4 Bosw., 391.

(9.) COMMON CARRIERS.

The consideration of these special liabilities, and of the subject-matter of the defences which may be available in an action founded on