Meyer v. Schultz , 6 Sandf. 664 ( 1851 )

These points were decided by

Mason, J.,

at chambers, all the justices concurring, on a motion to strike out part of the answer in an action of slander. The defendant first denied ever speaking the words alleged. He then stated, that if they were spoken, it was in the heat of passion, &c. The latter was the matter objected to. The judge said that the provision in the code permitting the defendant to allege mitigating circumstances in his answer, (Code, § 165,) was limited to cases in which he pleaded the truth of the matter charged as defamatory. Where he does not justify, the rule of pleading has not been changed by the code.

J. M. Smith, Jr., for the plaintiff. O. H. Smith, for the defendant.