Were we perfectly satisfied with the rulings of the Court on the trial of this case, and with his charge, to the jury, we should not interfere with the verdict. Our Code, (1873,) sections 2947, 3067, gives, in express terms, to the jury large discretion in such cases, and the Courts ought not to interfere with the finding, unless it be so grossly contrary to what is proper as to leave the impression that there was undue bias, prejudice or mistake. But for this very reason it should appear that there was no error in the Court calculated to affect the verdict.
In ordinary cases, when the Verdict is for the plaintiff or defendant, if there be an error} and the evidence is so strongly with the verdict that the result must have been the same, even had there been no error, it is mere play to send the case back on a theoretical mistake of the Judge. But when the amount of the verdict is a matter to be measured by the enlightened conscience of a jury, then it is of the utmost importance that the jury shall not have been in the least misled as to the principles upon which their verdict is to be founded, or any evidence excluded which may have affected the final decision. In this case, the defendant pleaded justification. If this plea was not fully made out, the plaintiff was entitled to a verdict. But the amount of that verdict is a thing to be settled by the *503jury, according to the evidence and to the nature of the case. It is manifest that in doing this, they ought to have every fact before them calculated to inform their consciences, and that thei'e be no illegal instruction as their guide. If there be error in the Court in these particulars, who can say how largely this error may have influenced the amount of the verdict? We think there was error in excluding the proof that Christian had not, from the date of the bond, May 11th, 1863, until the fall of 1869, called upon the maker of it for a title, and that he had informed Mr. James B. Ransone that he was trying to induce Stamper to pay for lot eighty-five, so that all parties could get their titles.
The point of the charge of peijury was, that Christian swore that the bond of James B. Ransone to lot seventy-four contained the true contract between the' parties, and that this was not true. Now any act or saying of Christian going to show that this was not the true contract, was, as we think, material to the issue. Was not the fact that Christian quietly stood by for six years and did not demand of James B. Ransone a title in pursuance of the bond, a circumstance of considerable weight in favor of old Mr. Ransone’s statement? Was not the fact (if it was true) that Christian had said he was trying •to get Stamper to pay for lot eighty-four so that all parties could have their titles made, also a circumstance going to show that the true contract was that Ransone’s making a title was to depend on his getting a title from Stamper to the other lot? Christian’s delay in demanding the title is, unless explained, inconsistent with the idea that the bond of Ransone was absolute. It was one of the issues whether that bond spoke the truth, nay, that was almost the sole issue in this case, as well as in the equity case, and these circumstances were material, as they tended to show that Christian had acted and talked as though Ransone’s story was the truth, and the bond not the truth. Nor does it make any difference that these facts were proposed to be proven by Ransone; it does not appear that it was or is one of the issues whether these facts were true. Perhaps Christian did not, at the trial of the equity *504case, deny them. Nor does there seem any reason why Ransone might not prove these circumstances as well as the other facts, even if Christian did deny them.
We think there was error in ruling out this testimony. We think the same as to the entry on the bond. The paper had ceased to be any longer an existing obligation. The decree in the equity case had made it the property of Ransone, and he had the right to mutilate or destroy it if he saw fit. If the bond was in fact transferred, this was a circumstance contradicting to some extent Christian’s statement of his anxiety to get the land in 1864 to build on, and stands on the same footing as his delay to ask for the deed and his efforts to get Stamper to comply with his bond, so that he might get a deed.
We are inclined to think that, under our law, the plea of justification admits all the charges in the declaration, as to not only the fact but the manner of publication. The language of the Code is very broad: Code of 1868, section 2996. “ By such plea he admits the act to be done.” The act and the manner of it are difficult to separate. If the plaintiff is still to prove the mode of publication, he gains very little by the plea, whilst he loses the privileges of one holding the affirmative of the issue.
Punitive damages are only to he given if there be circum-' stances of aggravation. Whether there be such circumstances or not, is a question for the jury, and not the Court. Even if there be a plea of justification, it is for the jury to say whether there are circumstances of aggravation; that is, whether the admitted facts are of such a character as to constitute matter requiring punitive damages. It may be that the Judge, in using the words “in this case,” only intended to say, “in the case I have supposed;” but the language is very fairly susceptible of being understood as meaning by “this case,” the case on trial, and was calculated to mislead the jury. Whether the case was a tort attended with aggravating circumstances, was a question for the jury alone under the proof, and it was not proper for the Judge to say to them *505that in “this case” it was their right to give punitive damages.
The filing of a plea of justification may, if it be not sustained by the proof, be a circumstance of aggravation, but we think it was error in the Court to tell the jury that it must be so considered by them. All that it was in the province of the Court to say on the subject, was to tell them that the filing of the plea, if the proof failed to sustain it, was a matter which the law authorized them to consider as an aggravation. But it is for the jury, under all the facts of the case, to say if the plea shall have that effect. It may be that the plaintiff’s conduct has been such as, whilst it does not completely justify the charge made by the defendant, does yet greatly mitigate and excuse it. The jury may not be quite satisfied that the charge is true, and yet they may feel, from the evidence, that the plaintiff ought not to be considered as grossly in ,the wrong in making it. In other words, the facts as proven, may show mitigating circumstances as to the act of filing the plea, and the jury may take them into consideration notwithstanding the plea of justification on this question of aggravation.
Section 3261 of the Code of 1873 is as follows: “ All claims arising ex eontraetu between the same parties may be joined in the same action, and all claims arising ex delicto may in like manner be joined. The defendant may also set up as a defense all claims against the plaintiff of a similar nature with the plaintiff’s demand.”
It is impossible to escape from the conclusion that by claims of a similar nature with the plaintiff’s demand, is meant claims arising ex delicto or ex contractu, accordingly as the demand of the plaintiff is ex contractu, or ex delicto.
We are free to say that this seems to us to be a very startling provision of the Code, and one which a common law lawyer must read with astonishment, especially when it is remembered that in this State special pleading is abolished and a case goes to the jury on the declaration and pleas. But, ita *506lex scripta est, and we have nothing to do but to enforce it as best we may.
If one tort may be set off against another, we see no reason why an assault and battery may not be set off against a libel, as one libel against another. We can see how an attempt to do either may involve very complicated inquiries before a jury. But that is a characteristic of our whole sj^stem of pleading, and is, perhaps, no greater evil in the trial of an action ex delicto than in the trial of an action ex contractu. In an action on a bond, the defendant may plead an open account as an off-set; nay, he may set up a balance due on the settlement of a partnership, and force an investigation of great complication.
Judgment reversed.