47 N.J.L. 349 | N.J. | 1885
The opinion of the court was delivered by
The bills of exceptions sent up with the writ in this case present three points for adjudication. These several propositions will be considered in the order in which they stand in the brief of the counsel of the plaintiff in error.
The basis of the suit was thexarrest and imprisonment of the plaintiff on an affidavit made by the defendant, containing a charge of perjury, and which charge, it was asserted, had been made falsely, maliciously and without probable cause. The false swearing thus imputed to the plaintiff consisted in a statement made by her under oath, in a suit between herself and the defendant, that a certain bank-book which she had turned over to the defendant contained a.credit of a certain sum due from the bank to her. Upon the strength of this affidavit a justice issued a warrant and the plaintiff had been arrested and imprisoned until she was discharged in consequence of the grand jury failing to find an indictment against her. At the trial of the cause it was admitted by the counsel of the defendant that the statements of this affidavit were altogether untrue, and that there had been no probable cause for the arrest and imprisonment of the plaintiff on that particular charge, and the defence was that although he signed the affidavit upon which the warrant issued, he did such act by mis
The circumstances of the case are peculiar, but upon reflection I am satisfied that the testimony thus shut out was admissible. It is not regarded as legal on the ground stated in the brief of counsel, which was that it helped to support the defendant’s statement that he had not meant to make the particular accusation contained in his affidavit, for such a collateral issue could not be interpolated merely by way of confirmation, but it is conceived that it was legitimate evidence, as it was an essential paid of the defence interposed. The case wTas in this situation: The defendant’s affidavit had been produced, and it had been proved that its crimination was without foundation, and without color of foundation. This the defendant admitted, and he thereby confessed that he had made a false charge of crime against the plaintiff, resting on no probable cause, and that by reason of such improper action on his part she had been arrested and imprisoned. If the case liad been closed at this point, the jury would have been con
There was error, therefore, in rejecting the testimony in question.
The second objection urged against the proceedings at the trial also arises from the exclusion of proofs offered by the defendant.
The defendant, desirous, apparently, to disparage the general reputation of the plaintiff in point of morals, asked of a witness the following question: “ Do you know the reputation of Mrs. Frasier, in the city of Paterson ? ” This interrogatory in the form stated was overruled, the court directing the counsel to make the inquiry more specific. The following interrogatories were then propounded and were successively overruled, to wit: “ Are you acquainted with the general reputation among her neighbors and acquaintances, of the plaintiff? ” “ Do you know whether the plaintiff has been charged with crime prior to the complaint which Mr. O’Brien made against her ? ” “ Are you acquainted with the general reputation which the plaintiff had amongst her friends and
With respect to these inquiries two topics are discussed in the briefs of counsel, first, whether the general character of the plaintiff in this action was open to attack, and, second, this being answered in the affirmative, whether the interrogatories, or any of them, which were addressed to the witness, were in due form.
Touching the first subject, it is conceived that when a plaintiff in a suit for malicious prosecution founds his action in part on an injury done to his character by such prosecution, the legal rule is quite settled that he thereby puts his general character in issue. As long ago as the case of Savile v. Roberts, reported in 1 Ld. Raym. 374, Lord Holt, in defining the damages which will support a suit of this character, states as his first class those instances where the only injury consists in the “ damage done to a man’s fame, as if the matter whereof he be accused be scandalous.” It would seem to follow, therefore, that whenever the action is used as a means of reparation for an injury, in whole or in part, done to his character, the plaintiff in such procedure must stand in precisely the same attitude that the actor in an action for libel or slander assumes, and in the latter class of cases it has been adjudged in this court, that the general bad character of the plaintiff at the time of the alleged grievance is admissible on the part of the defence in mitigation of damages. The case indicated is that of Sayre v. Sayre, 1 Dutcher 235, in which Chief Justice Green reviews the English and American decisions on this subject, and finally declares the- class of evidence in question is admissible, in mitigation of damages, on the broad ground “that it cannot be just that a man of infamous character should, for the same libelous matter, be entitled to equal damages with the man of unblemished repu
And the decision just referred to appears to accord with the great weight of authority, as will plainly appear by a reference to any of the leading text-books treating of the subject. 1 Whart. Ev., § 54; Bacon v. Towne, 4 Cush. 217; Fitzgibbon v. Brown, 43 Maine 169.
Evidence as to the bad moral character of the plaintiff was, it is considered, plainly admissible in mitigation of damages. Whether such testimony would have been proper, if such issue had been presented on the facts as a circumstance going to make up a reasonable cause for the conduct of the defendant, is a question not now sub judice.
With regard to the other branch of this subject, it seems to me that the form of some of the questions put to the witness were unobjectionable. It was not merely the bad character of the plaintiff on the point in which it had been villified that avus subject to discussion, but her character generally with respect to morals. That the inquiry has this scope was fully considered and declared in the case just referred to of Sayre v. Sayre. Consequently the interrogatory thus phrased, “Are you acquainted Avith the general reputation Avhich the plaintiff had amongst her friends and neighbors prior to the time that Mr. O’Brien made his charge against her?” would seem to have been all that the rules of practice require. According to common usage the phrase refers to the general moral character
The result is that these two questions were improperly overruled.
The third and last exception relates to the rejection at the trial of the following question put by the counsel of the defendant to one of, the witnesses, to wit: “ Do you know whether, prior to Mr. O’Brien’s charge against this woman [the plaintiff,] she was living in adultery with Mr.-? ”
It is plain that the judicial course' on this subject was correct. Particular criminal acts, as a general rule, cannot be set up either against a party or a witness. If the rule were otherwise, innumerable issues, incapable of all reasonable trial, would be raised in the progress of the ordinary suits. It is not known that any case warrants the introduction of such a species of testimony.
Let the judgment be reversed on the grounds above defined.