This case is somewhat complicated, and not entirely free from difficulty.
I have no doubt a justice of the peace is liable for a false return to an appeal for any damages which a party to such appeal-may sustain. In mating the return, the justice acts ministerially.
The evidence in this case seems to have been fairly submitted to the jury, and the defendant cannot complain of the rule which the learned justice imposed upon the jury.
The jury, under the charge, must have found that the offer -of evidence was substantially as claimed by the plaintiff; .and that it was rejected; and also, that the. defendant at the time he made his return or amended return, recollected the facts, or that by a proper effort to refresh his memory, he could have brought the facts to his recollection; and that he intentionally omitted or neglected to use such effort, with a design on his part, to prevent a reversal of the judgment.
This rule was sufficiently restricted and favorable to the defendant.
Assuming that the offered evidence, if received and given, would have constituted a defense, it was clearly error to reject it, if it was admissible under the pleadings; and, of course, such error would have caused a reversal of the judgment^ and the defendant would have been relieved from the judgment of the justice, and the costs upon appeal, and would have recovered costs. It seems to me, therefore, that the measure of damages adopted by the court was correct, assuming that the action was maintainable.
This brings us to the important question of the case. The -defendant’s counsel claims that the ruling of the justice, rejecting the evidence, if actually made, was right under the pleadings; that such evidence was not receivable under a denial answer; that it was new matter, and should have been pleaded.
*162If this position, is correct, the judgment must be reversed, for the plaintiff has not been injured by the return.
I am not able to assent to this proposition. It is well . settled law, that a plaintiff cannot recover damages in an action for the negligence of the defendant, if. his own negligence contributed to the injury. The gravamen of his action is that he-sustained damages, by reason of the' negligence of the defendant, not by reason of the negligence of the defendant and Mmself. His complaint avers that the damage was by reason of the negligence of the defendant. This averment is put in issue by the denial answer, and if the facts put in evidence by the plaintiff do not' show his negligence, I think the defendant may, if he can, prove such, negligence, and thus negative the complaint. It is not new matter, admitting the cause of action and avoiding it, but it. is matter showing that the plaintiff never had any cause of action..
As the plaintiff must be free from fault, some of the cases intimate that he must prove affirmatively that he was without fault, and that it must so appear horn his evidence. 1 doubt this, for the reason that the law will not presume fault to any one, and although it must appear from the complaint that the injury resulted from the negligence of the defendant, the law will presume both parties free from negligence until the testimony overcomes the presumption. Hence the plaintiff must prove the negligence of the defendant, and as.to his own negligence, if it is not made to appear by the testimony he. gives (as it generally is), he may rely upon the presumption of his innocence, and leave the defendant to answer the presumption by evidence. All the evidence is. pertinent to the question whether there ever was a cause of action.
The general rule in Stoddard agt. Onondaga Annual Conference (12 Barb. 576), referred to by counsel, “that new matter constituting a defense, under the Code, must be taken to mean, some fact, which the plaintiff is not bound to prove, in order to make out his cause of action, and which goes in avoidance or discharge of the cause of action alleged in the *163complaint,” is sound enough. Whatever, as evidence, the law presumes in one’s favor, need not be otherwise proved, but it may, unless the presumption is conclusive, be disproved, or the presumption be rebutted by evidence. Pleading new matter as a defense, pre-supposes that-a cause of action once existed, and the new matter is to defeat it. Now, in this case, if in truth the negligence of the plaintiff contributed to the injury, the plaintiff never had a cause of action.
I am satisfied that the evidence offered should have been received under the denial answer, -and had it appeared by the return that it was offered and rejected, the judgment of the justice must havebeen reversed; and the defendant would have been relieved from it and the costs, and hence to such extent he sustained damage by reason of the false return. And this is an answer to the position of the defendant, that it was incumbent upon the plaintiff on this trial to prove the actual existence of the facts offered to be proved on the trial before the justice. If it was error to reject the offer, the appellate court cannot inquire whether the party making the offer could have given the evidence.
There were several requests to charge and refusals, or refusals with explanations and exceptions taken. I have examined them, and think that none of the exceptions were well taken. The court might well have held that the evidence as offered would have constituted a defense. But it was entirely correct to charge that if the'evidence would have tended to establish a defense, it should have been received. And also, the proposition, that unless the evidence offered would have tended to establish a defense, there could be no recovery.
That part of the charge relating to the offer to prove that the plaintiff by his negligence, injured defendant’s buggy, was not objectionable. The jury were told that such evidence would not be sufficient to enable the plaintiff to maintain his action, but if the jury were satisfied it was made, it would be a circumstance proper for consideration in determining whether the other offer was not made; in other words, *164consider all the circumstances in evidence, and say whether the offer, the rejection of which was error, was made.
Upon the whole, I think the judgment must be affirmed, and the order denying the motion for a new trial must be affirmed, with costs.
All the justices concurring, judgment affirmed.