rial allegations in the complaint not controverted by the answer are "taken as true," and this applies to allegations of inducement. Objections to the complaint not taken by answer or demurrer, are deemed waived except only the objection to the jurisdiction of the court and the objection that the complaint does not state facts sufficient to constitute a cause of action. The defendant is not compelled to verify his answer. $350. The general issue in an action for slander or R. 430.) Where, in an action for an alleged libel published in a newspaper, the answer admitted that the defendant was the proprietor of the paper, but denied that the publication complained against was made with his knowledge, consent, assent or permission, and also denied that any person employed by defendant had any right or authority from it to make the publication, the court below held the answer frivolous, but the Court of Appeals reversed that order, on the ground that the answer amounted to a denial of the publication by defendant. (Samuels v. Evening Mail Asso. 52 N. Y. 625.) A denial of malice is frivolous unless connected with allegations of mitigating circumstances. (Daly v. Byrne, 1 Abb. N. C. 150.) As to a general denial in Maryland. (Hagan v. Hendry, 18 Md. 177.) An answer alleging that defendant did not speak the words as charged, with malice, &c., that he believed them to be true, stating reasons for such belief, and that he did not believe the words were spoken within six months, held answers of justification and statute of limitations. (Moore v. Edmiston, 70 N. Car. 510.) It is allowable to plead the same matter in justification and in mitigation, but it should be separately stated. After a statement of fact in justification, the pleader may, as a separate statement, add a notice that he will use the same facts in mitigation. (Fink v. Justh, 14 Abb. Pr. Rep. N. S. 108.) A plea that the letter containing the defamatory matter was intended for the plaintiff himself, but by mistake was handed to his employer, was held bad. (Fox v. Broderick, 14 Irish Law Rep. 453.) In an action for libel defendant at first pleaded not guilty, but afterwards pleaded, to the further maintenance of the action, that plaintiff had recovered damages against another person for the same grievances. New assignment, that the present action was brought for different grievances. Plea to new assignment, not guilty. Held, that this did not admit the innuendoes, and that, by pleading not guilty to the new assignment, defendant had raised precisely the same issue as if the libel had been set out in the declaration, and defendant had pleaded not guilty to it. (Brunswick, Duke of, v. Pepper, 2 Car. & K. 683.) 1 Code of Pro. § 168, and so in England, Hemming v. Power, 10 M. & W. 567 ; Gwynne v. Sharpe, I Car. & Mar. 532. Fradley v. Fradley, 8 C. & P. 572. 3 Code of Pro. § 148; Beach v. Ranney, 2 Hill, 309. Admissions in the answer cannot be retracted on the trial. (Whittemore v. Ware, 101 Mass. 353.) 4 Laws of New York, 1854, p. 153; Scoville v. New, 12 How. Pr. Rep. 319; Blaisdell v. Raymond, 5 Abb. Pr. Rep. 144; 6 Id. 148. libel was "not guilty;" and this had probably a larger effect than has a "general denial" under the New York Code, by which we intend that under the "general issue" matters of defense were admitted which would not be admitted under the "general denial." Under the New York system of pleading, every defense not consisting of a mere denial must be specially pleaded. A defense of privilege must be specially pleaded.' So must the statute of limitations. Much relating to the subject of the plea answer has been anticipated (§§ 211-216), and much more on the subject will be found under the head of Evidence (§§ 403-406).3 or § 350 a. As the inducement must be stated in a traversable form (§ 312), so a denial of a material matter of inducement constitutes a good defense, as where the declaration alleged, by way of inducement, that it was disgraceful for a duly qualified physician of the allopathic school to meet one of the homoeopathic school in consultation, and then alleged that defendant had published of plaintiff that he had met in consultation with a homoeopathist, the plea denied that it was disgraceful for a duly qualified physician of the allopathic school to meet one of the homœopathic school in consultation, and it was held a good plea; and so where the declaration alleged that the term black sheep was used in a defamatory sense, and that the defendant had applied that term to the plaintiff, a plea denying that black sheep was used in a defamatory sense was held good.s 351. It was held in New York that a plea in bar must answer the whole count, but that one plea might 1 Bell v. Parke, 11 Ir. C. L. Rep. 413. Code of Pro. § 74; Pegram v. Stoltz, 67 N. Car. 144. The general issue admitted the character in which plaintiff sued. (Yeates v. Reed, 4 Blackf. [Ind.] 463.) 4 Clay v. Roberts, 8 Law Times, N. S. 397. 5 McGregor v. Gregory, 11 M. & W. 287. state several defenses, i. e., different defenses to different parts of one count or statement of a cause of action." Perhaps the rule is, that, if the matter is divisible (§ 145), although contained in one count, a defendant may plead to part of the matter of one count.2 If the part of the charge not expressly covered by the plea does not amount to an actionable charge, then the plea is in effect to the whole count.3 A plea to a part of a count, and that part not amounting to an actionable charge, is bad; as where the charge was, "Mr. P. (plaintiff) told me he had given my child too much mercury, and poisoned it," and the justification was only of so much as charged giving too much mercury.* § 352. An answer of justification must give color to the extent of admitting, for the purposes of the answer only, the publication complained of. But this admission cannot be used to defeat a denial by a separate answer, 1 Cooper v. Greeley, 1 Denio, 365; and see Ames v. Hazard, 6 R. I. 335; 8 Id. 143. That a plea may apply to part of a libel, see Spencer v. Southwick, II Johns. 573. 2 See Edwards v. Bell, 1 Bing. 403; Cooper v. Lawson, I Perr. & D. 15 ; O'Connell v. Mansfield, 9 Ir. Law Rep. 179; and see ante, note 7, p. 214, and Torrey v. Fields, 10 Vt. 353. Where the first count in a declaration for a libel, alleged that plaintiff, a proctor, had been three times suspended, and the second count alleged the having been suspended three times for extortion; the plea as to so much of the charge as imputed one suspension, justified it as being true, held on demurrer that the plea was good, and that it was sufficiently applicable to the charge in the first count, if not to that in the second. (Clarkson v. Lawson, 6 Bing. 587.) 3 Barrows v. Carpenter, 1 Cliff. 204; Clarke v. Taylor, 3 Scott, 95. If the part not justified contains ambiguous statements, the court will not draw any libelous inference from them, if plaintiff has not done so in his declaration. (Id.) 4 Edsall v. Russell, 4 M. & Gr. 1090; 5 Sc. N. R. 801. 5 Fidler v. Delavan, 20 Wend. 57; Wilson v. Beighler, 4 Iowa, 427; Van Derveer v. Sutphin, 5 Ohio, N. S. 293; Edsall v. Russell, 2 Dowl. N. S. 641; 5 Sc. N. S. 801; Davis v. Matthews, 2 Ham. 257; Folsom v. Brown, 5 Foster (N. Hamp.) 114; Samuel v. Bond, Litt. Sel. Cas. 158; Buddington v. Davis, 6 How. Pr. R. 402; Porter v. McCreedy, I Code Rep. N. S. 88. A plea of justification held bad unless accompanied with a traverse of the publication in a manner to defame. (Crawford v. Milton, 12 S. & M. 328; see Carlock v. Spencer, 2 Eng. 12.) I because "one plea cannot be taken to help or destroy another, but every plea must stand or fall by itself." A plea of privileged publication must show a lawful occa, sion, and a denial of malice; a plea which only alleged that the defendant spoke the words on such occasion, firmly believing them to be true, was held bad for want of an express or implied denial of malice." § 353. The defendant may, in one answer, set up a general denial, or not guilty, and a justification on the ground of truth.3 But he cannot, with not guilty as to 1 Grills v. Marwells, Willis, 380; Kirk v. Nowell, I T. R. 125; Montgomery v. Richardson, 5 C. & P. 247; and see cases collected, Voorhies' Code, 296 c, 8th edit.; contra, see Jackson v. Stetson, 15 Mass. 48; Alderman v. French, 1 Pick. I; Cilley v. Jenness, 2 N. Hamp. 89; Whitaker v. Freeman, 1 Dev. 280; Wheeler v. Robb, 1 Blackf. 330; Wright v. Lindsay, 20 Ala. 428; Doss v. Jones, 5 Howard (Miss.) 158; Rev. Stat. of Mass. ch. 100, § 18; Hix v. Drury, 5 Pick. 260. 2 Smith v. Thomas, 2 Bing. N. C. 372; 2 Sc. 543; 4 Dowl. Pr. Cas. 333. Except in defenses of privileged publication, the denial of malice forms an immaterial issue. (Fry v. Bennett, 5 Sandf. 54.) When privilege is established malice must be shown. (Caulfield v. Whitworth, 16 Weekly Rep. 936.) A plea of privileged communication must show it was defendant's duty or interest to make the publication. (Praeger v. Shaw, 4 Ir. Rep. Com. Law, 660; and see Echlin v. Singleton, 14 Ir. Jur. [7 N. S.] 225; Simmonds v. Duane, 5 Ir. Rep. Com. Law, 358.) A defense of fair comment must allege the publication to have been a fair comment upon the plaintiff's conduct on the occasion therein referred to. (Clinton v. Henderson, 13 Ir. Rep. Com. Law, Appendix, xliii. The plea in Earl of Lucan v. Smith, 26 Law Jour. Ex. 94, note 2, disapproved of.) Action of libel for publishing a sentence of suspension pronounced by defendant against plaintiff. Pleas, (1) that plaintiff was suspended for breach of the laws of the Church of Rome; (2) privilege; replication to first plea, that a law of the Church prohibited one ecclesiastic from impleading another in a temporal court, and that the sole ground of plaintiff's suspension was that he being an ecclesiastic, had impleaded another ecclesiastic in a temporal court. Rejoinder, that such impleading was for slanderous words spoken by him in his character of priest concerning plaintiff, and that such impleading violated a law of the Church. On demurrer, held both pleas were bad. (O'Keefe v. Cullen, 7 Ir. Rep. Com. Law, 319.) 3 Buhler v. Wentworth, 17 Barb. 649; Hollenbeck v. Clow, 9 How. Pr. Rep. 289; Ormsby v. Brown, 5 Duer, 665; Payson v. Macomber, 3 Allen (Mass.) 69; Miller v. Graham, I Brevard, 283; Smith v. Smith, 39 Penn. St. Rep. 441; Harper v. Harper, 10 Bush (Ky.) 447; Horton v. Banner, 6 Id. 896; and see Kelly v. Craig, 9 Humph. 215; contra, Attebury v. Powell, 29 Mo. (8 Jones), 429. To a declaration containing three counts for three distinct libels, the court refused to allow the defendant to plead one general plea of justification. (Honess v. Stubbs, 7 C. B. N. S. 555.) Inconsistent defenses allowed. (Horton v. Banner, 6 Ky. (Bush), 596; Weston v. Lumley, 33 Ind. 486.) the whole declaration, plead as to part of the declaration, a special plea of apology and payment into court under the statute 6 & 7 Vict. ch. 96. Although a defendant may be allowed with not guilty to plead the mere fact that the words were a fair comment without malice, he cannot with not guilty interpose a plea alleging the existence of certain facts, and that the alleged libel was a fair comment on transactions of public notoriety. The fact of fair comment is involved in not guilty." § 354. A defendant, to avail himself of the defense of truth, must set it up as a defense by plea or answer.3 The defense of truth may be interposed, although the power to punish for the offense has been tolled by lapse of time,+ or although the plaintiff has been tried upon the charge and acquitted or pardoned." $355. That the justification on the ground of truth must be as broad as the charge, and must justify the pre 1 O'Brien v. Clement, 15 M. & W. 435; 3 D. & L. 676; 15 Law Jour. Rep. 285, Ex. Apology is by statute, in Virginia, a mitigation. Lucan v. Smith, 1 Hurl. & N. 481; 20 Jur. 1107. The fact that the same matter which is specially pleaded might be given in evidence under the general issue is not always a sufficient ground for rejecting the special plea. (Parker v. McQueen, 8 B. Monroe, 16.) Plea of apology and traverse of alleged defamatory sense not allowed. (Barry v. McGrath, 3 Ir. Rep. Com. Law, 576.) In an action for a libel contained in two letters published in a newspaper, the defendant pleaded that the second letter (itself actionable) was a fair comment upon the facts in the first letter; held bad. (Walker v. Brogden, 19 J. Scott, N. S. 64.) Form of plea of fair comment. (Clinton v. Henderson, 13 Ir. Rep. Com. Law, Appendix 43; O'Keefe v. Cullen, 7 Ir. Rep. Com. Law, 551; see § 409, post.) 3 Ante, § 211 to 216, note 2, p. 357, § 409, post; Manning v. Clement, 7 Bing. 367; 2 Greenl. Ev. 424; Hagan v. Hendy, 6 R. I. 335; Frederitz v. Odenwalder, 2 Yeates, 243; Barrows v. Carpenter, 1 Cliff. 204. The plea of truth is an issuable plea. (Woodward v. Andrews, 1 Brev. 310.) 4 Ankin v. Westfall, 14 Johns. 234. Where the words were actionable per se, a plea of not guilty within two years held good. (Quinn z. Wilson, 13 Irish Law Rep. 381.) Cook v. Field, 3 Esp. 133; England v. Bourke, Id. 80. |