Humphrey v. Humphrey

7 Conn. 116 | Conn. | 1828

Daggett, J.

By the motion, it appears, that the testimony to the adultery of the respondent, was presumptive rather than p0gj;jve . an,j the judge, at the circuit, supposed, that evidence of general character was properly received to rebut such testi-mony* R seems quite clear, that the nature of the proof given by the petitioner, lays no foundation for the introduction of this species of evidence.

The question is merely, did the respondent commit adultery ? If she might be permitted, in this case, to repel proof of that fact, by showing the goodness of her character, she might, in any other instance, be the proof positive, or merely presumptive. The court is, therefore, called upon to decide a general question, applicable to all similar cases. The rule of law is, that in civil proceedings, unless the character of the party be directly put in issue, by the proceeding itself, evidence of his general character is not admissible. Swift’s Ev. 140. 2 Starkies Ev. 366. This rule ever has been regarded in our courts, and is too firmly established to be shaken, at this day. More than forty years since, in Woodruff v. Whittlesey, Kirby 62., on a question whether a conveyance of land was fraudulent, the evidence of the character of the parties to it as to honesty, wTas rejected by the court ; and in no instance within my knowledge, has such evidence been received in any civil proceeding, unless character was thereby put in issue. Causes charging cruelty, gross fraud, and even forgery, are often agitated in suits by individuals ; and the result not unfrequently deeply affects the property and reputation of the party ; yet'no individual has been permitted to attempt to repel the proof, by showing a good reputation.

In actions of slander, &c., in which the plaintiff’s character is alleged good, to enti le him to exemplary damages, such en-quiries are permitted, and for satisfactory reasons : The compensation for injury to character should be proportioned to its worth.

The present is a civil suit. Character is not put in issue by the proceedings ; and if it can be given in evidence, it may also be given in evidence, in all in enquiries into facts, affecting the reputation, in other civil cases. This principle would lead to great uncertainty, and be productive of no benefit in the administration of justice.

“ Formerly, evidence of the defendant’s good character, in criminal proceedings, was admitted in capital cases only, and that in favorem vita; but such evidence is now admitted in all cases, where the character of the defendant is in jeopardy.” 2 Starkie’s Evid. 365. But the relaxation of the rule in criminal cases, has not affected the rule in civil suits.

It may be sufficient to dispose of this motion, to observe, that the principle adopted by the court below, is unsupported by authority, and has nothing to recommend its adoption. It would make an innovation on the rules of evidence, for which I can see no good reason ; and therefore, it ought not to be sanctioned. A new trial ought, therefore, to be granted.

Hosmer, Ch. J., and Lanman, J., were of the same opinion. Peters, J., dissented. Brainard, J., was absent.

New trial to be granted.