The court are of opinion that the direction to the jury was correct, and could not have been different. All that the plaintiff had to do, in the first instance, was to prove the speaking of the slanderous words of and concerning the plaintiff. This was first to be considered by the jury. If the proof did not establish it, there was an end of the case, and the jury had no need to consider the justification offered by the defendant, or the proof offered to support it. But the words being actionable by themselves, if the speaking were proved, the plaintiff would be entitled to a verdict, unless the defendant should prove the truth of the fact charged. He assumes to prove this affirmatively, and to the satisfaction of the jury. It follows, as a necessary consequence, that if the whole evidence leaves this in doubt, the justification is not made out.
The course, adopted by the defendant to sustain this defence, is this : He goes into the evidence to show a prima facie case of felonious taking, and then asks the court to instruct the jury that the burden is upon the plaintiff to rebut that evidence. We think this is founded on a common misapprehension of the law *270on the subject of burden of proof. Suppose the defendant had brought the strongest evidence of an actual felonious taking of the deed ; such as the plaintiff’s confession. The plaintiff might thereupon show that the witnesses were not worthy of credit, and that there had been a conspiracy to swear falsely, &c. The question would still be a question for the jury, depending upon the weight of the whole evidence, whether the defendant had proved, to the satisfaction of the jury, the fact that the deed was feloniously taken. If so, he has sustained the burden of proof, established his justification, and maintained his defence. But if, on all the evidence, this is left in doubt, the defence, on the ground of justification, fails. The question, whether prima facie evidence is overbalanced by the rebutting proof, is very different from the question who has the burden of proof. The former is solely for the jury, upon the whole evidence. This point may be well illustrated by pleading. Suppose the truth were pleaded in justification, and no other plea : the issue would be upon the, truth of the fact, and the burden of proof upon the defendant to maintain his plea. Of course, unless the jury were satisfied, on the whole evidence, of the truth of the fact pleaded, the issue must be found against the defendant.
In regard to the other point, the evidence objected to was that the plaintiff was advised by his father to give up the bargain and reconvey the estate to the defendant. The defendant relied upon certain recitals in the deed of reconveyance, from which it might be inferred that he admitted that the deed had been improperly obtained, and that the same inference might be drawn from the fact itself of the reconveyance. We think it was competent for the plaintiff to rebut those inferences, by showing that in making the reconveyance he acted on a different motive ; and the advice of his father, though a slight circumstance and not of much importance, was- competent to prove such motive.
Judgment on the verdict.