The publication must be read as a whole, and justification was required to be as broad as the charge. ( Stilwell v. Barter, 19 Wend. 487, 489; Fero v. Ruscoe, 4 N.Y. 162; Lanpher v. Clark, 149 N.Y. 472.) The defendant was not limited to proof that the corporation had committed a specific crime to enable him to justify.

In an extensive, though not exhaustive, examination of the cases in which this general rule has been discussed, with the exception of the two cases next below cited, we have found no case in which it may be said that the court states in terms that, where the defense of privilege is interposed under the general issue, evidence relevant and material to establish that defense is rendered inadmissible by reason of the fact that it tends to prove the truth of the charge. In Fero v. Ruscoe, 4 N.Y. 162, it is said: "When the defendant pleads the general issue, and nothing else, he may, if he can, show that the alleged slander was a privileged communication. But he is not at liberty to prove the truth of the charge, nor to give evidence tending in that direction.

When several separate and distinct things are charged, the defendant may justify as to one, though he fail as to the others. ( Fero v. Ruscoe, 4 N.Y. 162; Holmes v. Jones, 121 N.Y. 461.) In this case the plaintiff had alleged that the defendant falsely and maliciously spoke and published of and concerning her personally, and of and concerning her place of business, that she kept a disorderly house. It is true, according to the allegations of the complaint, that he also charged her with many other things, but the charge of keeping a disorderly house was distinct and separate from all the rest, and the defendant was entitled to justify that charge if he could, though he failed as to all the rest.

The same rule was laid down in Bennett v. Matthews (64 Barb. 410), and its existence was not denied in Doe v. Roe (32 Hun, 628), but it was held inapplicable to that case because the evidence tended strongly to show that the defendant did not interpose the justification maliciously, but in good faith. Before the Code, the rule was vigorously stated and applied in Fero v. Ruscoe ( 4 N.Y. 165). It has been uniformly held, before and since the Codes, that when a defendant pleads in justification of the breach of his promise to marry, that the plaintiff has become unchaste, and on the trial makes no attempt to prove his plea, the fact may be considered by the jury in assessing the damages. ( Southard v. Rexford, 6 Cow. 255; Kniffen v. McConnell, 30 N.Y. 285; Thorn v. Knapp, 42 id. 474.)

The original answer of the defendant was admissible as evidence of express malice. (3 Sutherland on Damages, 647, 648; Chamberlin v. Vance , 51 Cal. 84; Norris v. Elliott , 39 Cal. 74; Knapp v. Fuller , 55 Vt. 311; 45 Am. Rep. 620; Daly v. Byrne , 77 N.Y. 188; Fero v. Ruscoe , 4 N.Y. 164; Reed v. Clark , 47 Cal. 203; Pallet v. Sargent , 36 N.H. 496; Distin v. Rose , 69 N.Y. 127; Ward v. Dick , 47 Conn. 303 36 Am. Rep. 78; Abbott's Trial Ev. 667; Johnson v. Powers , 65 Cal. 180; Pfister v. Wade , 69 Cal. 139; Bodwel v. Osgood, 3 Pick. 379; 15 Am. Dec. 228; Powers v. Wheatley , 45 Cal. 115.)          JUDGES: In Bank. Sharpstein, J. Paterson, J., concurred.

The current of authority obligatory upon the courts of this state, notwithstanding some diversity of opinion in other courts and other states, was to the effect, that facts and circumstances which tended to disprove malice by showing that the defendant, though mistaken, believed the charge to be true when it was made, might be given in evidence in mitigation of damages; but if the facts and circumstances offered tended to establish the truth of the charge, or formed a link in a chain of evidence going to make out a justification, they were not admissible, in mitigation of damages. ( Cooper v. Barber, 24 Wend. 105; Root v. King, 7 Cowen, 613; Fero v. Ruscoe, 4 Comst. 162; Purple v. Horton, 13 Wend. 9; Gilman v. Lowell, 8 id. 573.) The rule appears to follow as the legitimate result of two other rules which were well established by authority, viz. 1. That evidence of the truth of the charge in justification could not be given under the general issue, but must have been specially pleaded.

This defense is not complete. The plea of justification must be as broad as the libel. ( Fero v. Ruscoe, 4 N.Y. 162; Mann v. Press Publishing Co., 133 App. Div. 29; Block v. Nussbaum, 160 id. 678; Schieffelin v. Hylan, 205 id. 360.) Here, the libel charged plaintiff with a crime and arrest by the district attorney's office.

The rule in this State permitted the defendant to interpose a plea authorized by sections 535 and 536 of the Code of Civil Procedure (See, too, Id. § 508) that might require the repetition of the offensive words or of some of them without penalty of having such repetition considered upon the question of damages, unless the plea was made in bad faith or wantonly or recklessly. The earlier rule stated in Fero v. Ruscoe ( 4 N.Y. 162) and in earlier or contemporaneous cases, was thus modified after, and in consideration of, the enactment of sections 164 and 165 of the Code of Procedure, the forerunners of the said sections 535 and 536 of the Code of Civil Procedure. ( Klinck v. Colby, 46 N.Y. 427; Cruikshank v. Gordon, 118 id. 179; Distin v. Rose, 69 id. 122; Holmes v. Jones, supra; Tobin v. Sykes, 71 Hun, 471; Potter v. N.Y. Evening Journal Pub. Co., 68 App. Div. 102. See, too, Pearce v. Stace, 207 N.Y. 515; 2 Sedg. Dam. [9th ed.] § 447.)

"The justification must always be as broad as the charge, and of the very charge attempted to be justified." Fidler v. Delavan, 20 Wend., 57; Fero v. Ruscoe, 4 N.Y. 165; Townshend, Slander and Libel, sec. 331. While not justifying the publication, however, testimony as to reputation as a gambler would be admissible in mitigation of the damages.

Inasmuch as justification is pleaded as a complete defense to the whole of the publication, the plea should be as broad as the charge and the very charge attempted to be justified. Fero v. Ruscoe, 4 N.Y. 162; Sawyer v. Bennett, 49 N.Y. St. Repr. 779. In effect the charge is that Wine of Cardui is a "cheat" because of its "working inevitably to the hurt of the victim" who uses it, and, inasmuch as plaintiff manufactures and sells the substance, plaintiff is a swindler, etc.