Huson v. Dale.

perhaps, necessarily tend to prove the truth of the charge, the defendant was thus absolutely precluded from making any defense, even by way of mitigating the damages, merely because he could not make a full defense to the whole cause of action; while the plaintiff was at liberty, in the same case, to introduce affirmative evidence, beyond that to be inferred from the false charge itself, to show a higher degree of malice for the purpose of enhancing the damages. Such was the case of Thompson v. Bowers in this state (1 Doug. 321), relied upon by the defendant in error. And this was in accord. ance with the settled rule of decision in several of the states, but certainly not in accordance with the principles of the common law. It was adopting one measure of right for the plaintiff, and another and a very different one for the defendant, or rather denying his right altogether by allowing the plaintiff to prove what the defendant was denied the right of controverting.

This was claimed to be the inevitable result of the severest logical deduction from the rule in Underwood v. Parks. And defendants must have been inclined to admit its severity, though they may have failed to discover a flaw in that logic which rendered it, to them, inevitable. Inexorable logic was vindicated, if not propitiated, by the sacrifice of defendants' rights.

Legal logic should be constructed upon principles at least akin to justice, the attainment of which should be its end and object; and by its tendency to this end its soundness should be tested. As the surveyor tests the correctness of the line in his front, by taking a back sight along the line he has run, the legal logician may often profit by pausing to test his logic by its results. Accidental evils, it is true, will sometimes result from the soundest rules devised by human wisdom, when applied to the peculiar facts of particular cases. But when the natural and ordinary tendency of a rule is generally and systematically to produce injustice, without any compensating benefit, the logic upon which it is supported may safely be suspected of a lurking fallacy somewhere.

Recoiling from the gross injustice of the rule when carried to the extent of excluding all evidence in mitigation which might tend to prove the truth of the charge, the English courts (especially in the later cases) and those of some of our sister states have held that facts and circumstances, though tending to prove the truth of the charge, may be received in mitigation, provided they fall short of establishing its truth. This, though better calculated for the pur

Huson v. Dale.

poses of justice, has not been placed upon a very clear or well defined ground. It necessarily leaves it for the court to pass upon the weight of the evidence in deciding upon its admissibility. If all the hardships and injustice, which have thus arisen from the attempts to apply the rule in Underwood v. Parks to other cases, were the necessary result of the rule there adopted, I should, without hesitation, concur with SELDEN, J., in Bush v. Prosser, 11 N. Y. 357, etc., that the case should be entirely repudiated, as clearly in conflict with the principles of the common law, and subversive of justice. But the present case does not require us to go so far. And, in my view, the rule actually adopted and intended to be adopted in that case is not justly chargeable with all the injustice which has resulted from the attempts to apply it in other cases, but most of the evil consequences have resulted, not from the case itself, but from an unwarrantable extension and misapplication of the rule to cases not coming within its principle.

In that case the defendant's offer was to prove under the plea of not guilty, in mitigation of damages, the truth of the words charged as slanderous. This, if pleaded, would of itself have constituted a full justification or complete defense, when sustained by the proof. Such proof- that is, proof of a fact which, if pleaded, would constitute a full justification and bar to the action, it was held should not for the future be given even in mitigation, unless pleaded. And if the defendant believed himself prepared to prove the truth of the charge, there would seem to be no injustice in requiring him to plead it, so that the plaintiff might come prepared to meet it. The only hardship which could result to the defendant from this course, was one which did not arise so much from this rule itself, as from that anomalous rule which, in case of a failure to establish the plea to the satisfaction of the jury, made it conclusive evidence of malice, and aggravated the damages. To give the truth the effect of a full justification or bar to the action it was always necessary to plead it, though, up to the time of this case, it had been admissible in mitigation, under the general issue. This was the full extent of the change introduced by the new rule. It did not purport to extend to a case where the fact offered to be proved did not, ipso facto, constitute a full justification, if pleaded; but only to such as might have been pleaded in justification. The court were not guilty of the absurdity of requiring a defendant to plead mere matters of mitigation, not amounting to a full defense, and which could not

Huson v. Dale.

therefore, on principles of law, be pleaded. Facts which might merely tend to prove the truth of the charge, or mere matter of evidence, could not be pleaded in justification, but the fact itself, the truth of the charge, must be directly and positively alleged. And this was the fact offered to be proved in that case. The rule adopted merely said to defendants, "If you are prepared to prove the truth of the words which, if pleaded, would constitute a justification, you must take the risk of pleading it, so that the plaintiff may not be taken by surprise on the trial." It is doubtless true that, within the spirit of the rule intended to be established by the case, the defendant would not be at liberty to introduce evidence tending to prove the truth of the charge for the purpose of establishing its truth.

But I am utterly unable to discover any thing in the case which would require the rejection of any evidence tending to show that defendant believed the truth of the charge when uttered, for the purpose of disproving malice and mitigating the damages; especially if offered in a manner and under circumstances amounting to a clear disclaimer of the right to insist upon the truth of the charge, or an admission that it was false in fact, though when made believed to be true.

The legal effect, as it seems to me, of the rule actually laid down by the court was substantially this: that under the general issue, without a plea of justification, the defendant should not be at liberty to insist upon the truth of the slanderous words; but the words being proved, the defendant, by omitting to plead the truth in justification, was to be considered as, in legal effect, admitting their falsehood. And, in this view of the case, the very offer of such evidence as last supposed, though its tendency might otherwise be to prove the truth of the charge, would (under the operation of this rule), when considered in connection with the neglect to plead in justification, constitute a clear and conclusive admission that the charge was false in fact, though at the time he made it he may have believed it to be true. But more especially, as it seems to me, would this be the case when the offer, in its very terms, shows that it is to be introduced only for the purpose of rebutting malice and mitigating the damages. Had this, which seems to me to have been the substantial legal effect of the rule in that case, been generally accepted as its true exposition, volumes of conflicting decisions and judicial controversy might have been avoided. But complete jusVOL. II.-10

Huson v. Dale.

tice could not always be done to the defendant under the rule, so long as courts should adhere to the arbitrary rule that a plea or notice of justification not sustained by the proof was conclusive evidence of malice in aggravation of damages. But where this last rule has been abandoned, or, as in this state and many others, abolished by statute, I can see no hardship to the defendant, nor any difficulty in the way of a fair trial, likely to result from the rule in Underwood v. Parks, as I have endeavored to explain it. And the rule in that case, so far as it requires the defendant, if he intend to rely upon the truth of the charge in any way, to plead it, has been so long and so generally adopted, and the corresponding prac tice so thoroughly settled, that I see no satisfactory reason for disturbing the rule thus limited.

The evidence offered by the defendant in the present case on the two points already stated was expressly offered for the purpose of rebutting malice and to mitigate the damages, and for no other purpose. This offer, under the pleadings and in the manner thus made, must be treated as involving a disclaimer of the truth of the words, and a conclusive admission that they were not in fact true; but this in no way precludes the idea that the defendant, at the time, may have believed them to be true. And he had the right to introduce any facts and circumstances tending to show grounds for such belief at the time of the speaking of the words. This could not prejudice the plaintiff when accompanied with the admission that the charge was, nevertheless, untrue in fact. The evidence offered would, we think, have had a clear tendency to show such grounds of belief on the part of the defendant, and thereby tended to weaken or rebut the inference of malice otherwise to be drawn from the utterance of the false charge, and thus properly to lessen the amount of damages to be recovered.

This principle was fully admitted and applied by this court in Farr v. Rasco, 9 Mich. 353, which, in its reasoning (with which we are entirely satisfied), must be regarded as having thus far shaken the authority of Thompson v. Bowers.

But it is further objected that this evidence was inadmissible on another ground; that the defendant admits that the property of the horse referred to in making the slanderous charge was vested in the wife of the defendant and not in himself, and that the evidence offered would not have tended to show that defendant believed the plaintiff had stolen his horse as declared by the slanderous charge.

Huson v. D.le.

We regard the objection, under the circumstances of this case, as more technical than sound or just. It might, perhaps, have had more weight if the defendant had attempted to justify. But there does not appear to have been any dispute that this was the same horse intended to be referred to by the defendant in making the charge; and it would be for the jury to find from the evidence whether this was so. The evidence of the replevin suit offered by the defendant would have shown that the horse must have been in the defendant's possession when replevied by the plaintiff and Green, and would, therefore, naturally be spoken of by the defendant, under such circumstances, as his horse.

Indeed, it would be very natural for any man who had merely borrowed or hired a horse for the time being, and from whom he should be taken, under circumstances which induced the belief that he was stolen, to say of the person who had taken the horse away, "He has stolen my horse;" quite as natural as to say, under the same circumstances, "He has stolen the horse of A. B." (the owner). And the malice of the charge, though it should prove to be false in fact, would not be likely to be the greater or less on account of the technical point of the actual right of property. And the relation of husband and wife, and the almost universal custom of using such property in common, either husband or wife speaking of it as his or her property, is not to be overlooked, and would be very proper for the consideration of a jury.

We think the evidence was erroneously rejected. The offer of the defendant to introduce the record of a criminal complaint made against the plaintiff and others by the wife of the defendant, for stealing the horse (which was described in the complaint as her property) and the proceedings under the same, showing that the plaintiff, with the other parties charged with the offense, was discharged on the evidence given on the part of the people before the justice, was, I think, properly rejected. Had the complaint been made by and on the oath of the defendant himself, instead of his wife, it is possible it might have had some tendency to show a belief on his part at the time that the charge was true. Upon this, however, we express no opinion. But not being made or sworn to by him, and the plaintiff having been discharged on the evidence given for the people, I can see no intelligible ground on which the evidence, if given, could have had any legitimate tendency to rebut nalice or to mitigate damages.