There was only one exception taken at the trial. The disposal of that disposes of the case. The action is for a libel; the plea the general issue, alone; There is no justification of the publication set up, and the only question is whether the defendant was properly allowed to prove that Phelps had entered the complaint against the plaintiff and Lowndes, and made the affidavit offered.
The evidence was admitted by the court in mitigation of damages alone; for the bill of exceptions states expressly that it was not admitted as proof of the truth of the complaint which Phelps had made before the magistrate.
The rule of law allowed the defendant to prove any thing under the general issue in mitigation which does not tend to a justification, but which falls short of that. (Snyder v. Andrews, 6 Barb. 43.) Such was the case here. The proceedings before the magistrate and the fact that the material charges contained in the publication had been sworn to by Phelps, did not justify or tend to justify the publication; for it did not, nor could it, tend to prove that the publication was true. But it did show-—or at least so the jury might infer—that the defendant’s publication was not a falsehood, wickedly and wantonly coined for the occasion, but that being based in a great degree upon a statement sworn to before a competent magistrate in a *151proceeding duly pending before him, had what seemed to be truth for its basis. If the defendant had published the libel under such circumstances, and with such materials for its basis, and under an honest belief in its truth, it would be absurd to measure out to him the same damages which would have been proper in case the publication had been wickedly and maliciously false. The testimony was therefore properly admitted, and the exception to its admissibility cannot be sustained.
[New York General Term, November 5, 1855.But it is said that the jury treated it as a justification. Perhaps they did ; but this is not clear, for it is not shown that this bill of exceptions contains all the testimony, and therefore there may have been sufficient testimony to have warranted the verdict, for aught that appears here. But even though they did in fact so regard it, that is not a subject of review here. This is a bill of exceptions, not a case; and no exception can be taken to a verdict. All that we can consider here, are the exceptions.
If the jury rendered a verdict against the evidence, and contrary to the judge’s instructions, exceptions cannot reach the case; for exceptions lie only to the rulings of the judge, not to the errors of the jury. A verdict may be set aside as against the evidence or the weight of evidence, on a case made. We have here only to do with the exceptions. There is but one such in the case, and that is untenable.
The motion for a new trial must be denied with costs.
Mitchell, Clerke and Cowles, Justices.]