1 Johns. 46 | N.Y. Sup. Ct. | 1806
This is an application for a new trial, on the ground that the defendant was not permitted to give evidence touching the general character of the plaintiff.— The action was for publishing a libel, and the single question presented, is, whether in such case, it be competent for the defendant to go into evidence of the plaintiff’s general character ?
I have had some difficulty, in making up an opinion on this question. The researches of counsel, have not bee»
The doubt with me has been, whether the Inquiry ought to extend to the general character of the party, or be restricted to his character in the capacity in which he has been libel-led, considering it analagous to an examination into the character of a witness. The question, in that case, is not, as to his character at large, but as to his general character for truth and veracity. The result of my reflections, however, is, that the general character should form the subject of examination. The character of the plaintiff comes in, collaterally, and is not directly put in issue. To confine the inquiry to the particular character of the party in the capacity in which he has been'libelled, would be, in some measure, infringing upon a well settled rule, that under the general issue the truth of the words cannot be given in evidence, in mitigation of damages. 2 Stra. 1200. Underwood v. Parks. Willes 20. Smith v. Richardson.
In the case of Dennis v. Pawling, 12 Vin. Ab. 159. Pl. 16. Baron Price, before whom the cause was tried, said
As the legal intendment is, that the action is brought to repair an injury done to a person’s character, in the estimation of the public, the jury must be left very much in the dark, in making a just reparation in damages, without being furnished with some data, by which to estimate its value, and susceptibility of injury. Though the inquiry into general character may be, in some measure, vague, and uncertain, and, in some cases may lead to abuses ; yet I ■ have adopted it, as being the least exceptionable course. Such inquiries may be legally made of witnesses, as to enable the jury justly to appreciate the sources from which they' form their opinion of the general character of a party, and thereby prevent very great evil or imposition.
I am, therefore, of opinion that the verdict should be set aside, with costs to abide the event of the suit.
On the argument, I was much struck with some of the reasons which were urged in favor of a general inquiry into character; but am now satisfied that these impressions were incorrect, and that more mischief will follow from an adoption of such a rule, than by excluding the investigation altogether, except when presented, as a complete justification, in the form of a special plea. It was conceded, that for that purpose, the evidence Under this plea could not be offered except only in mitigation of damages. But where is the essential difference between nominal damages, and a verdict for the defendant? The plaintiff is as much out of pocket, and his reputation as far from being repaired in the one case, as in the other. To this it is answered, that a person of bad fame has no right to bring a suit, or if he does, that he cannot expect the same compensation, as those who have a character to lose. But no one, however low a man’s reputation be, has a right to publish slanders of him, or to charge him with crimes of which he is innocent. If he confines himself to the truth, he can plead it; but if he will deal in general invective,' or indulge his wit, and venom, by travelling oat
One of the questions, which was overruled here, was manifestly improper. It went directly to prove the plaintiff a pettifogger, which was part of the libel complained of,
The case of J’Anson v. Stewart, 1 D. & E. 748. virtually involves a decision of this question, and though no authority here, it is entitled to attention, if it should be found on examination to contain a fair exposition of the common law on this point. The defendant, to meet the libellous matter, which- was calling the plaintiff a “ swindler and common- informer,” pleaded generally, “ that he was one of “ a gang of swindlers and" common informers, and had been “ guilty of deceiving and defrauding divers persons."”
The objection to this pica, and which prevailed, was, that it was too general, as it did not set forth any particular act of swindling, nor whom the plaintiff had defrauded, nor in what manner.
Though this case be not without its difficulties, the safest course will be, to exclude,' on trials of this kind, all evidence of general reputation. It will only impose on those who clmse to publish their animadversions on the crimes or failings of others, which occupy so great a portion of our public papers, the task of proving, by particular facts, the truth of what they assert. Nor is there any hardship in this. Those who sport with the feelings of others, under the professions of zeal for public good, on no other basis than that of common fame, which is not always an infallible guide,
There xvas some testimony offered to shexv a provocation, which xvas also overruled, but as that lias not been relied on, in the motion for a new trial, I do not xvish to be understood as giving any opinion on it. The postea should he delivered to the plaintiff.
Tompkins, J. declared himself of the same opinion.
Spencer, J. gave no opinion,
The single question in this case is, xvlicthci* the defendant, under the general issue, in an action of alan-*
The allegation in the declaration, that the plaintiff is of good fame, is but inducement to the action, and is not traversable. (Strachy’s Case, Styles 118.) It is a general rule, that matters which cannot be pleaded, may be given in evidence in mitigation of damages, and when such matters are excluded from evidence, as the truth of the charge in an action of slander, one principal reason is, that they may be pleaded in bar, and the plaintiff be thereby apprised of the defence. (Smith v. Richardson, Willes Rep. 20.) It was upon this ground that Baron Price, at Nisi Prius, in the cause of Dennis v. Pawling, (12 Vin. 159. Pl. 16.) ruled, that whatever tended to justify the words should not be given in evidence, but that whatever tended to shew a provocation, or any transaction between the parties giving occasion for speaking the words, was proper, because those ■matters coiddnot be pleaded. So also, in the case of Coot v. Berty. (12 Mod. 232.) it was held that a licence by the husband to the wife, to commit adultery could not be plead in bar, to an action of trespass by the husband, but that it might be given in evidence, in mitigation of damages. In these actions for criminal conversation with the plaintiff’s wife, it is the settled practice, to admit not only the criminal conduct in general of the wife, and even particular acts, as her general behaviour is put in issue, (Elsam v. Fawcett, 2 Esp. Cases, 562. Buller’s N. P. 296.) but it is also the practice to inquire into the moral character and behaviour of the husband himself, who is the party to the record. (See Coot v. Berty, supra. King v. Francis, 3 Esp. Cases, 116. 4 Esp. Cases. Windham v. Wycomb, p. 16. Bromley v. Wallace, p. 237.)
As the general character of the plaintiff cannot be questioned by the plea, it would seem to result necessarily from the received principle, that it might be questioned in mitigation of damages. The character of the plaintiff must be considered as coming in, at least collaterally, upon the trial. It is ■always alleged as the inducement to the action, and the injury to it is tiré gravamen ■ complained of. In assessing the
If the plaintiff’s character comes collaterally in question, in an action of slander, all that the books say in these cases is, that you cannot go into evidence of particular facts. There is not, I presume, a case to be met with, in which it is ruled that you cannot examine into general character. Nor is there any general principle of law violated by such examination. Every man is-supposed capable of supporting his general character, though no man is presumed to be capable of repelling a specific charge without previous notice, and this is the true and rational distinction applicable to the case before us. (Buller's N. P. 296, 5.)
The case of Dennis v. Pawling, is an authority in favor of the defendant’s proposition. That was an action of slander, and Baron Price would not allow any particular credit to be given of the plaintiff in evidence on the trial; but said, that if the defendant had a mind to examine to this, the question must be asked in general. So in cases of criin. con. above referred to, the defendant was permitted to question the general character and conduct of the plaintiff. It appears to me, therefore, that the admission of such testimony violates no rule of law that it is rather required by the general principle, admitting in evidence, matters relevant to the cause, and which could not be pleaded, and admitting the general character of the party to be examined, when it comes in collaterally ; that such evidence is essential to guide the discretion of the jury, and that its legality receives strong countenance from decisions bearing on the question. I am of opinion, accordingly, that the verdict be set aside,, with costs, to abide the event of the suit.
Judgment for the plaintiff.
Willes 20.
2 Str. 1200. Underwood v. Parks.
Dennis v. Pawling, 12 Vin. 159.
Tam ficti pravique tenax, quam nuncia veri.—Virgil.