The slanderous words alleged to have been spoken by the defendant were, obviously, understood to have reference to the testimony of Gorton in a judicial proceeding, and to impute the crime of perjury; and, therefore, actionable per se.
Although the complaint alleged the pendency of a suit between the parties before a justice of the peace, and that the words were spoken in reference to evidence given on the trial of that issue, which was material to the result, the plaintiff *Page 537 was not bound to prove it. To show that it was immaterial, rested with the defendant. (Jacobs v. Fyler, 3 Hill, 572.)
The defendant averred in his answer that the words complained of were spoken with reference to the evidence of Gorton, in a suit pending between him and the defendant before a justice of the peace, which was material to the issue then to be tried. It is also alleged that Gorton "falsely deposed and gave evidence" on that trial to an agreement between him and the defendant in respect to the price of labor, which, the answer avers, was not true. On the trial, the defendant proposed to prove the truth of his answer in justification, and this was rejected. He "then offered to prove the facts alleged in his answer in mitigation of damages." The plaintiff objected that "the facts alleged were not competent in mitigation of damages." The objection was sustained and the defendant duly excepted.
Without undertaking to show that the facts alleged in the answer would amount to a justification, or criticise the generality of the objection to the evidence in mitigation, it is difficult to perceive why the defendant, under the existing law, should not have been allowed to prove the facts alleged in his answer for the consideration of the jury in awarding damages. The slanderous words were spoken with reference to a suit between the parties, and the evidence given by Gorton on the trial, imputing,per se, the charge of perjury. Both parties agree that he was sworn on the trial, and gave evidence material to the issue. If he swore falsely he was apparently guilty of the crime of perjury, because it is obvious that he swore to facts that must have been within his personal knowledge; that is to say, a personal transaction between him and the defendant. The defendant distinctly avers that Gorton did, on that trial, falsely "depose and give evidence;" and, after stating what he did swear to, again denies its truth. If, therefore, the facts stated in the answer had been proved, it would have appeared that the parties had a suit before a justice of the peace; that Gorton was sworn on *Page 538 the trial and gave material evidence, which was false. Indeed, all but the alleged falsity of the evidence is averred in the complaint. The case, then, comes to this: The plaintiff proves the speaking of words, imputing false swearing in a judicial proceeding, and is allowed to recover upon the presumption that the evidence was material to the issue to be tried, and true in point of fact. This is held to amount to a charge of perjury, and malice is implied. The defendant offers to prove the pendency of the suit — the evidence which Gorton gave on the trial — that it was material to the issue, and that it was false. If the presumption of malice arises against the defendant upon a charge of false swearing by the plaintiff in a judicial proceeding, it is very difficult to perceive why the defendant does not rebut the presumption by proving, as he offered to do in this case, that the plaintiff, in the very proceeding and evidence to which the alleged slanderous words referred, did in fact swear falsely. If, upon this proof, any question could be made as to whether a full justification was or was not made out upon the ground that the answer did not allege the false swearing to have been corrupt and willful, that question I shall not stop to consider. But it may be suggested that, as the alleged false testimony related to a fact necessarily within the plaintiff's personal knowledge, if it was shown to have been false, some presumption might have been indulged that his motives were not altogether pure and innocent. However that may be, it is impossible to see why the evidence should not have been received in mitigation of damages in the present condition of the law.
Under the system of pleading prevailing prior to the adoption of the Code of Procedure the defence of an action of libel or slander was a very perilous undertaking. If the defendant attempted to justify, by proving the truth of the words spoken, it was regarded as a reiteration of the charge and conclusive evidence of malice, and no evidence in mitigation could be received. If he failed to establish the truth of the charge the damages were aggravated. He might give *Page 539 evidence in mitigation, but in that case he must admit the truth of the charge, and could give no evidence tending to prove the contrary. He could only give evidence to show that he had reason to believe the charge was true when made.
It was obviously intended by the Code to remedy this evil, and I think it has been done by section 165, as construed by the court of last resort. (Bush v. Prosser, 11 N.Y., 34; Bisbey v. Shaw, 12 id., 67; Wachter v. Quenzer, 29 id., 547, 551.)
I do not see why the defendant's answer is not sufficient as a pleading under the Code to enable the defendant to prove the facts alleged with such effect as the law allows. The proof of the truth of the words spoken would certainly tend to rebut the presumption of malice.
The order must be reversed.
All concur for reversal upon the ground that the evidence was competent under the answer in mitigation of damages.
Order reversed and verdict set aside.