This was and action of slander brought by Dale against Huson in the Circuit Court for Washtenaw County.
The slanderous words alleged in the declaration were that defendant below had said of the plaintiff, “lie stole my horse,” also the following: “By. Green and John Dale,” *27(meaning one Byron Green and the plaintiff), " stole my horse.”
The defendant pleaded the general issue only, without notice of special matter. The speaking of the words, of and concerning the plaintiff, was proved; and the plaintiff rested.
The defendant, Huson, then offered in evidence under the general issue to rebut malice, and in mitigation of damages, and for no other purpose, among other things:
1st. The record and files in a case then' pending in the same Court in a cause wherein Byron Green and said Dale were plaintiffs, and defendant Huson was defendant, brought in replevin to get possession of the horse (charged by the defendant Huson to have been stolen), and to show in connection therewith that said Dale directed the Deputy Sheriff who had the writ of replevin for service, not to serve the same, nor take the horse, until Saturday night, so that they, Green and Dale, could get possession of the horse and run him out of the county; and that the horse was so taken and run out of the county, which led the defendant, Huson, to believe that the process was used as a matter of form to obtain possession of the horse, and not on the ground that they claimed the horse as their property; and further to show all the facts and circumstances connected therewith merely to rebut any presumption of malice in speaking the words, and for no other purpose.
2d. The defendant having, in his own behalf, testified that there were reports in the neighborhood before the speaking of the words, of their having stolen the horse, that certain persons had told him they had stolen the horse and ran him off to Toledo, that several had told him he ought to take them up for stealing the horse; and that on Saturday before the words were spoken, he took advice of counsel, Messrs Beakes aud Hawkins (who are attorneys of this Court), as to what the offense was, and in substance (for such was the effect of the several offers upon *28this point), to show that he correctly stated the facts to his said counsel, and what those facts were; and that he was advised by his said counsel that such state of facts would constitute larceny.
These offers with others were rejected, the testimony excluded, and'the defendant excepted.
The rejection of this evidence is sought to be justified on the ground that its tendency would have been to establish the truth of' the charge imputed by the slanderous words; and that the defendant, having pleaded the general issue only without notice of justification, was not at liberty to introduce such evidence even for the purpose of rebutting malice and mitigating the damages.
No question in modern times has, perhaps, given rise to a greater amount of judicial controversy. The conflict in the decisions upon it is absolutely appalling. And the attempt to trace the line of mere authority through the maze of hostile decisions, would be calculated only to confuse and lead the mind astray from the real principles of justice involved in it, and could serve no useful end. A careful review of the decisions would require volumes and I shall not attempt it.
At the common law, prior to the decision in the case of Underwood v. Parks,—2 Strange, 1,200 — the question here presented would have been easy of solution. Because 1st — by the well settled principles of pleading (which that case did not undertake in this respect to change) no facts falling short of a complete defense could be set up by way of special plea to the action, and a mere partial defense, or facts going only in mitigation of damages, might ¡always be shown under the general issue. And 2d — the defendant in an action of slander was at liberty to prove the truth of the charge itself, under the general issue to rebut malice and mitigate the damages, though this would have constituted a full defense, had it been pleaded in justification.
*29But in Underwood v. Parks, the defendant, under the plea of not guilty, offering to prove the truth of the words in mitigation, the Chief Justice refused it; saying. “At a meeting of ,111 the Judges, upon a case that arose in the Common Pleas, a large majority of them had determined not to allow it, for the future, but it should he pleaded, whereby the plaintiff might be prepared to defend himself, as well as to prove the speaking of the words.”
It is clear from the terms in which it was announced that this was a new rule of pleading then for the first time introduced for the purpose of preventing surprise upon the plaintiff. And if the rule had subsequently been confined to cases like that in which it was announced, when the offer was to prove the truth of the words, which if pleaded would have constituted a full justification — the operation of the rule might have been rendered beneficent, and much of the conflict which has since arisen from it might have been avoided. But cases have been and will continue to be of frequent occurrence, in which the defendant, though he may have believed and had reason to believe the truth of the charge when uttered, cannot, and does not upon the trial, seek to establish the truth of the charge and is even willing to admit its falsehood, but wishes to show, in excuse, that at the time he uttered it, he bad reason to believe its truth and was not therefore actuated by that malice or degree of malice which might otherwise be inferred from the making of the false charge or from other evidence of malice introduced by the plaintiff. And, to apply the rule in question to this class of cases, must always produce the most glaring injustice to the defendant, depriving him of the benefit of all such mitigating circumstances, and compelling him to respond in damages to the same extent as if he had been actuated by the most vindictive malice.
The English Courts, and most of those in this country, *30have admitted, the authority of the rule laid down, in this case, and professed to follow it, though with the greatest possible diversity in its interpretation, and the extent of its application. The defendant, of course, has not been allowed to plead these mitigating circumstances, because they do not constitute a justification or complete defense. And in some of the English, and many of the American cases, when he has undertaken to introduce them under the general issue in mitigation, he has been told that they are inadmissible under the rule in Underwood v. Parks, because he has not insisted upon the truth of the words by a plea or notice of justification. If, on the other hand, he has put in such a plea or notice, and failed to sustain it by the proof; then, under another rule of a most arbitrary and anomalous character (which has fortunately been abolished in this State and many of the other states by statute), his plea or notice was held to be a repetition of the slander in the most solemn form, conclusive evidence of malice and an aggravation of the damages.
It is universally conceded that some degree of malice in the defendant is essential to the maintenance of the action. This malice is sometimes said to be either express or implied ; but in both cases it is actual malice, or malice in fact, the difference being only in the mode of proof; and in both cases the burden of making this proof rests upon the plaintiff. What is called express malice is shown by some affirmative proof beyond that of the false and slanderous words; while implied malice is that which is naturally inferred as a presumption of fact from the proof of the publication of the false and injurious charge, on the familiar principle that a man is presumed to intend the natural and ordinary consequences of his own voluntary acts, and that he would not therefore make a false charge injurious to another without intending to injure him, unless under circumstances which indicate an innocent intention. But in both cases alike it is actual malice which the law con*31templates. Such being tbe principle, it follows as a necessary result, and is very generally admitted by the authorities (however differing in other respects), that the amount of damages to be recovered should, to some extent, be governed or graduated by the degree of malice by which the defendant was actuated. And, accordingly upon this principle, (for it can be upon no other), most, if not all, the cases which profess to follow the authority of Underwood v. Parks, though differing in many other respects, toto ccelo, yet entirely concur in this, that the plaintiff may, for the purpose of enhancing or aggravating the damages, give other and affirmative proof of actual malice beyond that which is to be inferred from the false charge; such as the repetition of the same charge on other occasions, or other facts tending to show' a vindictive motive; and some cases have gone so far as to admit evidence of other and independent slanderous charges for this purpose. And yet the Courts in several of the States, professing to follow the rule in Underwood v. Parks, have often in the same case in which they have allowed the plaintiff to give such evidence to enhance the damages, practically held the defendant precluded from giving any evidence tending to rebut malice and to mitigate the damages. On principle, independent of artificial rules and in Courts which recognize justice as one of the ends to be attained-by a judicial trial, it would certainly seem that these must be reciprocal rights on the part of the plaintiff and the defendant, and that the plaintiff could not be allowed to give such additional proof of actual malice to enhance the damages without, at the same time and upon the same principle, allowing the defendant to show any facts to rebut the malice and to mitigate the damages. Because the rule in Underwood v. Parks did not allow the defendant to prove and rely upon the truth of charge even in mitigation, without pleading it in justification, it was supposed to follow, as an inevitable logical consequence, that he could not be allowed to show *32any facts which might tend to establish the truth of the charge. This was the rule actually adopted in some of the States, and which in some of them would seem to be still recognized. And, as any evidence the defendant might offer to show that the charge was made under circumstances which might have induced him to believe it true wheu made, would naturally, and in most cases, perhaps, necessarily tend to prove the truth of the charge, the defendant was thus absolutely precluded from makiug any defense, even xby 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 Douglass 321) relied upon by the defendant in error. And this was in accordance 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 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 correct*33ness 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 purposes 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 *34misapplication 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 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 *35fact 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 rebut*36ting 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 justice 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 practice 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 fight 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 *37drawn 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 slan^ derous 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.
'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 *38be false in fact, would not be likely to be the greater or less on account of tbe 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 malice or to mitigate damages.
The judgment of the Circuit Court should be reversed with costs, and a new trial awarded.
The other Justices concurred.