
    Paddock against Salisbury.
    In slander, ^áintíff^wkh **|ony, general chatú ■ mitigation of damages under the general issue-
    Otherwise, it seems, if ^“aat^tlonbo
    _ In slander, in penal actions, actions, for a libel and other actions, vindictive in *he nev^^uiaí will not he ty^cfu^Thó is we'ight of evidence-
    Slander by Paddock against Salisbury; for that the defendant had. charged the plaintiff with arson, (setting forth the words,) also for charging the plaintiff with being a thief, and stealing apples.
    plea, the general issue.
    The case was tried at the Oneida Circuit, November 23d, 1 .. ■ 1821.
    One Sabin testified that he had heard the defendant . _ _ , . - . charge the plaiiaiifl, with arson as set foith m the decJaration; but this witness was discredited by showing that he had deliberately denied, in conversation, what he now . SWOre Í0.
    A. Smith swore that the defendant admitted to him that ' .. . he had charged the plaintiff with stealing apples; but on explanation, both the witness and the defendant concluded, that under the circumstances, it was a mere civil trespass,
    G. White testified, that the defendant charged the plaintiff with arson as set forth in the declaration ; but left it in doubt whether the w;urds were spoken- before or after the suit was brought, which was the first of May term, 1821.
    S. Salisbury testified, that he hpard. the, defendant charge the plaintiff with hooking apples; that the term hooking meant stealing, and was so understood; and that the defendant did not explain whether the apples were taken from, the trees or not,
    The defendant’s counsel then proposed to inquire into the plaintiff’s general character as, a •virtuous, honest man, or otherwise, to which the counsel for. the plaintiff objected; but, the.objection was overruled by the Judge ; and witnes-. ses were examined to the.poijit of the plaintiff’s good and bad character, by both parties. Five witnessesffor the defendant then testified that the plaintiff’s, character was not so.good as that of people in general; a sixth that he could say nothing against it-; a seventh, that-he had been acquainted with him 20 years, and lived within 3 miles of him and couy not testify that his character was good or bad before a certain house was burnt; that he had heard much said since the burning, and many thought it was some of the Paddock family; and another witness testified that his character was good, though not much spoken of before the house was burnt. Three witnesses testified that his character had for years been bad. For the plaintiff, four witnesses testified to his uniform good character, in addition to Sabin and Salisbury.
    The jury found a verdict for the defendant.
    
      J Lynch,
    
    now moved for a new trial, 1. because the verdict was against the weight of evidence; 2. because the evidence of the plaintiff’s general character was inadmissible.
    As to the first point, he said it was sufficient, if the substance of the words set forth in the declaration was proved. They n~ecl not be shown literally.
    
    To the second point, he cited Larned v. Buffington.
    
    ~S1. Beardsley ~` H B. &orrs, contra.
    The jury passed upon the credibility of the witnesses; and their finding i conclusive. They were also entitled to pass upon the sense of the words, and whether the conversation sworn to by White was before or after the commencement of the suit. The only words which can be considered as proved, are the hooking apples, mentioned by Salisbury; and this is not slander. To say of a man "he has stolen my apples out of my orchard," is not so. 
    
    But it is a sufficient answer to this ground of application that the action is for a tort; and the verdict will not be disturbed because itis against the weight of evidence.
    
    It is, perhaps, immaterial whether general character was admissible or not. The jury found for the def~enclant on the ground that they disbelieved the plaintiff's evidence; and it is plain that the plaintiff cannot, atany rate if the cause be sent back, recover more than nominal damages. This alone would be a snfficient argument against a new trial.
    
    But the case was probably made with a view to settle the question whether the evidence of the plaintiff~s general char.. acter is admissible under the general issue. This point was raised several years ago, and the then Supreme Court were equally divided, though we understand that the practice at nisi prius has been to admit the evidence. In Springstein v. Field, it was received, and Spencer, Justice, said he had fully considered the question, and had no doubt about it, though for particular reasons, he gave no Opinion in Foot v. Tracy.
    
      
       Miller v. Miller, 8 John. Rep. 74. 2 Bl. Rep. 961.
    
    
      
       3 Mass. Rep. 546.
    
    
      
       3 Bl. Com. 375.
    
    
      
       Dexter v. Taber, 12 John. 240.
    
    
      
       Petty v. Waight, 1 Bulstr. 173, & vid. Thompson v. Bernard, 1 Campb. Rep. 48.
    
    
      
       Jarvis v. Hatheway, 3 John. Rep. 180. Feeter v. Whipple, 8 id. 369. Hurtin v. Hopkins, 9 Id. 36.
    
    
      
       Hyatt v. Wood, 3 id. 239.
    
    
      
       Foot v Tracy, 1 id. 46
    
    
      
       Anthon's N. P. Rep. 185.
    
   [Woodworth J.

I believe this has been the uniform practice for a great number of years.]

To show that it is admissible upon precedent, the counsel cited the following authorities: Peak. Ev. App. 92. 1 Phil. Ev. 140. Earl of Leicester v. Walter, (2 Campb. Rep. 251.) -v. Moor, (1 M. & S. 284.) Larned v. Buffington, (3 Mass. Rep. 546.) Brunson v. Lynde, (1 Root, 354.) Seymour v. Merrills, (id. 459.) King v. Waring et ux. (5 Esp. N. P. Rep. 13.)

So of several other actions, which involve character: In adultery. (Elsam v. Faucett, 2 Esp. N. P. Rep. 562. Bull. N. P. 27, 296. 1 Phil. Ev. 139. Bromley v. Wallace, 4 Esp. N. P. Rep. 237.) In an action for seduction. [Bamfield v. Massey, 1 Campb. Rep. 460. Dodd v. Norris, 3 Campb. Rep. 519. Boynton v. Kellogg, 3 Mass. Rep. 189.) In an action for a malicious prosecution. (Rodriguez v. Tadmire, 2 Esp. N. P. Rep. 721.) Breach of marriage promise. (Johnson v. Calkins, 1 John. Cas. 116.)

They also cited Finnerty v. Tipper, (2 Campb. Rep. 72.)

Curia per Sutherland J.

Evidence of the plaintiff’s general character was properly admitted by the Judge. The plea was the general issue, merely, without any attempt to justify. In such cases, it is admissible for the defendant to prove many circumstances in mitigation of damages, and, among others, the bad character of the plaintiff. In Foot v. Tracy, (1 John. Rep. 46,) the Court were equally divided upon this point, Kent, Ch. J. and Thompson; J. being of opinion that the evidence was admissible, and Livings-^on an¿ Tompkins, Js. that it was not.

The opinions of the former seem to me to be supported by the better reason, and they certainly are in accordance with the late English and American authorities. Thus in the Earl of Leicester v. Walter, (2 Campb. Rep. 251,) which was an action for a libel, the defendant was permitted to show in mitigation of damages, that before, and at the time of publication, the plaintiff was generally suspected to be guilty of the crime imputed to him; and that on that account his relations and friends had ceased to associate with " him. Ch. J. Mansfield said the rule was so settled. The same doctrine was held by Eyre, Ch. J. in Knobell v. Fuller, (Peak. Ev. App. 92, 3d ed.) So in King v. Warring et ux. (5 Esp. Rep. 14.) Lord Alvanley says, “ that where the words charge the party with a crime or conduct injurious to his reputation, evidence of antecedently good character is admissible; general character is, in some respects, puf in . issue.” The case of the Earl of Leicester v. Walter was sanctioned by the King’s Bench in-v. Moor, (1 M. & S. 285.) Lord Ellenborough says, “certainly a person of disparaged fame is not entitled to the same measure of damages with one whose character is unblemished ; and it is competent to show that by evidence.” In Larned v. Buffington, (3 Mass. Rep. 546,) the same principle was recognized, though the evidence decided to be admissible there related to the rank and condition, and not the character of the plaintiff. In Walcott v. Hall, (6 Mass. Rep. 514,) Ch. J. Parsons admits the rule to be, that evidence of the plaintiff’s general character may be given in mitigation of damages. The evidence was rejected in that case on the ground that it did not relate to his general character but went to prove the existence of particular reports injurious to him. It was inadmissible, in that case, also, because the defendant had put in a plea of justification.

In Rodriguez v. Tadmire, (2 Esp. Rep. 721,) the defendant was permitted to give evidence of the general bad character of the plaintiff in an action for a malicious prosecution. So also in actions for criminal conversation, and breach of promise of marriage, the general character of the wife, in the one case, and the plaintiff in the other, as to chastity, may be given in evidence in mitigation of damages. (1 John. Cas. 116, Bull. N. P. 27, 296, 1 Phil. Ev. 139.) That the character of the party in actions of this nature should be taken into consideration in estimating his damages, all must admit ; and since the want of character cannot be pleaded specially, it must be admitted under the general issue. Nor is there, as Oh. J. Kent observes, any general principle of law violated by it. Every man is supposed capable of sustaining his general character, though no man is presumed to be capable of repelling a specific charge without notice.

As to the verdict of the jury, we cannot disturb it. (Dexter v. Taber, 12 John. 239.) There was no misdirection of the Judge, or any rule of law violated ; and the general rule is undoubtedly, as stated by Mr. Justice Spencer, in Jarvis v. Hatheway,(3 John. Rep. 180,) that in penal actions, and in actions for a libel or defamation, and other actions, vindictive in their nature, unless some rule of law be violated in the admission or rejection of evidence, or in the exposition of the law to the jury, the Court will not give a second chance of success. (1 Burr. Rep. 24. 2 Salk. 644.)

Motion denied.  