Wormouth v. Cramer

3 Wend. 395 | N.Y. Sup. Ct. | 1829

By the Court,

Marcy, J.

What may be offered in mitigation of damages in actions of slander and for libels, was much considered in the case of Root v. King, (7 Cowen, 613,) and it seems to be there settled, “ that the defendant in such actions, if he has not attempted to justify the charge, may prove under the general issue, by way of' excuse, any thing short of a justification which does not necessarily imply the truth of the charge or tend to prove it true, but which repels the presumption of malice.” The defendant here offered, with a view to mitigate damages to prove that the plaintiff, Mrs. Wormouth, was in possession of the property alleged to have been stolen, and that about the time of the prosecution of another person for an article alleged to have been stolen at the same time, she returned it to the owner. Particular facts which might form links in the chain of circumstantial evidence against the plaintiff, cannot be received under the general issue in mitigation of damages. (Starkie on Slander, 410.) The possession of the stolen property which the defendant offered to prove was such a,fact, and the judge decided correctly in refusing to receive the evidence.

New trial denied.