This case comes before us upon exceptions embodied in a settled case, which purports to contain “ a correct and full statement of the evidence, rulings and exceptions on the trial.” Among the defendant’s requests, the refusal to charge which is now claimed as error, is the following: ‘ ‘ That if the conduct of the plaintiff in the examination which had transpired in discharging the party accused was such, in view of all the evidence which had beeu adduced, as to produce in the mind of a reasonable man, hearing the examination and evidence, a belief that the plaintiff was connected in interest with the gang of which the accused was a member, as charged by the defendant, this would be competent to rebut the presumption of malice in the defendant in speaking the words, and you are entitled to consider it in mitigation.”
Facts and circumstances, sufficient to induce in a reasonable man a belief in the truth of the alleged defamatory matter, could by no possibility have influenced the defendant in making the charge, unless brought home to his knowledge, and productive of a like belief on his part; and even though he possessed the information, if he did not in fact rely upon it, nor believe the truth of his accusation when made, it would furnish no evidence in mitigation, as tending to explain quo animo the charge was made, and to repel the inference of malice. Gorton v. Keeler, 51 Barb. 475. Inasmuch as the instruction prayed for, even though in other respects proper, omitted both these elements of knowledge and belief on the part of the defendant, it was rightly refused.
Another alleged ground of error insisted upon here is that portion of the charge given by the court to the jury in these words: “No justification has been shown, in this case, of the language used by the defendant, imputing to the plaintiff misconduct and want of integrity in the dis*459charge of his office, and no mitigating circumstances, except the excitement under which the defendant was laboring at the time of speaking.”
As we understand the defendant, the particular portion of this charge to which objection is now made is that part which instructed the jury that no mitigating circumstances had been shown except the excitement of the defendant. It is contended that under it, and the other instructions which were given, no question was left for the consideration of the jury except the fact of such excitement, and whether the defendant actually uttered the defamatory words charged in the complaint; that all questions as to the good faith of the defendant in making the alleged statements, his belief in their truth, whether they were made under circumstances entitling them to be regarded as privileged communications, and the existence of actual malice, were wholly withdrawn from the consideration of the jury.
Under the pleadings no issue was raised as to the truth of the defamatory matter alleged in the complaint, nor was its falsity attempted to be controverted on the trial. No justification whatever was attempted by the defendant, either in his answer or proofs. He simply denied having made the statements attributed to him. Under these circumstances the only proper question for the jury was whether the defendant made the statements as charged in the complaint, and this matter was submitted to them by the court, under instructions requiring them to find, not onty that the imputed words were actually spoken by defendant, but were so spoken with the intent to charge, and were understood by his hearers as charging, an indictable offence, and also directing them that the defendant was not liable if “ they believed from the evidence that the words used by him were so used, and understood by the hearers, as expressive of the opinion that plaintiff, in the case there tried before him, had merely shown and felt an undue sympathy with the persons accused of stealing *460liorses, but not that plaintiff had actually stolen horses, or been accessory thereto.”
These instructions were certainly as favorable to the defendant as was warranted by the nature of the issue presented and the evidence given under it. The only matter claimed in mitigation by the answer is that one Quackenbush, at the instance of defendant and others, was arrested and brought before the plaintiff, as an examining magistrate, on a criminal charge of larceny for stealing certain horses and other property; that though the evidence, upon the examination in support of the charge, ivas such that the justice ought to have held him for trial, nevertheless he discharged him; that defendant and others, at the time believing such discharge to be unjust, and the decision of the justice not warranted by the evidence, expressed their opinions as to its propriety, and that the defendant merely expressed the opinion that Quackenbush ought not to have been discharged upon the evidence so given, and that such discharge might reasonably lead to the belief that the justice was in sympathy with the accused party.
It will be seen from this that the only real thing insisted upon by defendant as a mitigating circumstance, to repel the inference of malice arising from the charge that plaintiff was a horse thief, or one of a gang of horse thieves, etc., is the fact that, as a justice of the peace, he made a grossly erroneous judicial decision upon the evidence in the case before him, to which an alleged horse thief was a party — a judgment so palpably contrary to the evidence as to cause severe criticisms upon its propriety by several citizens at the time, and as might reasonably lead to the belief that he was in sympathy with the accused, although defendant himself does not aver the existence of any such belief on his part.
The evidence before us discloses no other mitigating facts or circumstances whatever, save that alluded to by the court in its charge, viz., the excitement under which defendant was lab orino- at the time he gave utterance to the alleged *461slander. In respect to the evidence introduced on the trial, conceding the utmost that can be claimed for it in behalf of defendant, it only tended strongly to show a very erroneous judgment on the part of the plaintiff, as a justice, in discharging Quaekenbush upon the testimony before him ; but there is nothing, aside from the insufficiency of the testimony to support such judgment, upon which any inference can be predicated in any way reflecting upon his integrity as •a magistrate, or his honesty as a citizen, much less that he was connected with a gang of horse thieves. Gross incompetency in a magistrate is not of itself evidence of official corruption or personal depravity, and when, as in this case, this fact alone appears, unaccompanied by any circumstance indicating an improper motive, no inference can be drawn that the magistrate was an accomplice in crime, or guilty of corrupt misconduct in office.
In addition to this, defendant does not in his own testimony claim to have ever believed in the existence of any such criminal conduct on the part of the plaintiff, but bases the opinion which lie formed, and the remarks which he made concerning plaintiff, wholly upon the character of the judgment which was rendered upon the evidence which he supposed was introduced on the examination, a portion only of which he had heard. There is nothing in the evidence tending in the least to controvert this portion of defendant’s testimony. In view of these facts, under the pleadings, it was the duty of the court to instruct the jury, as it did, that there was no mitigating circumstance shown, except the excitement under which defendant was laboring at the time.
No question properly arises in the case as to the admissibility or effect of general suspicions and current rumors of a like character with the charge, generally prevalent in the community or among the crowd addressed by defendant, and communicated to and repeated by him in the belief that they were true, because there is nothing in the evidence tending *462to show the existence of any such suspicions or rumors, or that defendant believed and acted upon any such information in making his slanderous statements.
It is claimed in the argument in behalf of defendant that his alleged defamatory statements were spoken while in consultation with others engaged with him in the attempt to bring to justice a horse thief, who had just been examined and discharged by plaintiff, and while considering the propriety of having him rearrested and reSxamined before another justice; that this was an enterprise or undertaking favored in law, and that defendant’s remarks were made use of as to the uselessness of an examination before the plaintiff, and were, therefore, privileged communications, requiring proof of express malice to sustain the action.
To give them this privileged character it must appear that they were spoken by defendant in the discharge of some public or private duty, legal or moral, and with that end and purpose in view, or in the conduct of some matter involving his own interests, and that they were spoken for the protection of such interests, and were relevant and proper in that connection. It must also appear that they were uttered in good faith, and in the honest belief that they were true. Toogood v. Spyring, 4 Tyrwh. 582 ; Swan v. Tappan, 5 Cush. 104; Gassett v. Gilbert, 6 Gray, 94; Klinck v. Colby, 46 N. Y. 427. It may well be doubted, also, whether a party would be permitted to avail himself of such a defence on the trial, unless it was sufficiently disclosed by the pleadings to prevent surprise, and fairly to apprise the opposite party of what he would be required to meet. Gorton v. Keeler, 51 Barb. 475 ; Wachter v. Quenzer, 29 N. Y. 547, 553. Be this as it may, however, in the present case there is nothing contained in the pleadings, nor is there any evidence, tending to show the existence of any belief on the part of the defendant, at the time he made the injurious charges, that they were true, or that was proper for the consideration of the jury upon that question.
*463Henee, whether the occasion furnished any excuse for making the statements, had they been true and been believed by defendant, need not be considered, inasmuch as it is quite clear, upon the facts and circumstances of the case, that this alleged privileged character cannot avail the defendant, either as a partial or full defence.
Judgment affirmed.
G-ilfillan, O. J., did not sit in this case.