¶1Although the evidence rejected doesnot seem to be vary material, yet as the fact offered to be proved might, at the time of the speaking of the words, have had some influence in misleading the defendant, he had a right to prove it for tho purpose of reducing the malice.
¶2There is a difference between a justification and an excuse. The one goes to the right of recovery, the other to the amount to be recovered. For the purpose of showing malice, the plaintiff may prove tho speaking of words not charged, if they be not actionable and with a view of extenuating malice, the defendant *255may prove, under the general issue, any eireumstance connected, with the transaction tending to show that he had probable ground for believing the truth of the words.
¶3In estimating the damage, -the degree of malice is always *to be' considered. Any circumstance, therefore, tending to show that the defendant spoke the words under a mistake, or that he had some reason to believe they were true, is entitled to consideration, and is proper evidence to be received in mitigation. What effect this evidence.might have we know not, nor is it necessary to know. We are satisfied it was legal, and that the defendant had a right to use it for the purpose for which it was offered.
¶4The judgment, therefore, must be reversed and the cause remanded for further proceedings.-