
    
      Mary A. Capehart v. J. B. E. Carradine.
    
    Evidence as to the reputation of a woman, acquired after the commencement of an action brought by her on a promise to marry, — held to be inadmissible for thedefence.
    In an action on a promise to many, if the defendant, in mitigation of damages, attempt to show the general bad character of the plaintiff, he will be held to show, not the fact that there are reports injurious to her character, but a reasonable or a good foundation for such reports; and also that he was ignorant of her character when he made the promise.
    Where the defendant gave the jury no means, to determine as to his pecuniary condition, the Court will not disturb their verdict on the ground of excessive damages.
    
      Before O’Neall, J. at Pickens, Fall Term, 1849.
    This was an action of Assumpsit, on a promise to marry.
    The plaintiff was a widow ; she was born and raised, and married, in the immediate vicinage of Pickens Court House. In the lifetime of her husband, he and she removed to Hamburg, where they were living at his death — she lived there a short time afterwards. She removed to Pickens, probably in 1841 — she lived with her husband’s father, whose second wife was the sister of defendant. She was living with him (her husband’s father) at Pickens Court House, in 1846. In that year, the defendant visited the plaintiff, and in December, he requested Capl. Levi Robins, who was boarding in the Hotel, kept by Mr. Capehart, to be at home, on a particular day, when, he said, he and Mrs. Capehart were to be married. He asked him to request the Rev. Mr. Kennedy to attend, and perform the ceremony. Before the day arrived, the defendant wrote to the plaintiff a letter, dated the 13th of December, acknowledging the contract, and desiring, on account of the objections of his family, to defer the marriage. On the 16th, he again wrote, and spoke of the letter of the 13th, and perhaps also of one received from her, apologizing for his delay, and proposing to be up, in a few days.
    Mr. Capehart, the father-in-law of the plaintiff,
    and the brother-in-law of the defendant, proved, that after he left the village, which was in 1847, the defendant, in the spring, visited the plaintiff, at his, the witness’ house, on his plantation, and stayed two nights and a day. The witness said he asked the defendant whether he intended to marry the plaintiff? He replied that he did, in the fall!
    
    
      On the 18th of December, 1847, the defendant married Miss Frederick.
    
    The defendant’s defence was placed on the ground that the plaintiff was a woman of bad character. He proved that in 1839 and ’40, reports unfavorable to her character, as a woman of virtue, were freely circulated against her in Hamburg, and obtained credence from many, so as to exclude her from society there. One witness, however, said he boarded in the hotel kept by her husband and herself, and regarded her as a much injured woman.
    James F. Carradine proved, that in the Spring of 1847 he told his brother, the defendant, of these reports — and further, that he had heard she had contracted then, a disease, which prevented her from having children.
    Mrs. Sarah A. Capehart, the step-mother-in-law of the plaintiff,
    and sister of the defendant, proved, that when the defendant told her of his approaching marriage, in December, 1846, she advised him to defer it, on account of reports against the plaintiff. She proved, that in the hotel, where she lived, she, witness, had seen things in the plaintiff she did not like. Her general conduct was not, she said, as discreet as it should be. The plaintiff once shewed her letters, which she had received when in Hamburg — she gave them to her to read, which she did : she advised her to burn them; it was accordingly done. One of these letters, written, as she supposed, by a man, (the name was torn off,) stated that he had seen her in Augusta, was much pleased with her appearance, and wished to know when he could have a private interview with her. On her cross examination, she admitted that the plaintiff lived with her, and kept company with her unmarried sister.
    In the course of the case, it appeared the- plaintiff could not read.
    The defendant here would have examined Robert A. Maxwell, Esq., to the character of the plaintiff:-he said he had no knowledge of her; since this suit, he had written, at the request of the defendant, to persons in Hamburg, making inquiries touching her character. His answer to give the information he received, was objected to, and excluded, on the ground that such proof was no evidence of general character! The plaintiff, by James H. Anderson, a witness residing in Hamburg, and examined for the defendant, proved that he knew her in 1839 and ’40 — that he knew nothing against her character. He had heard, he said, the rumors before spoken 0p jje boarded in the hotel kept by her husbanl; he saw nothing calculated to impeach her character for virtue.
    
    She by a number of witnesses, a good character fr°™ her birth to her marriage — and for the last eight years of her residence in Pickens, as a widow. Some of these witnesses stated matters to which special reference may be desired. Mr. Mitchell went to Hamburg, fall of 1840 ; knowing the plaintiff in Pickens, and hearing reports against her, in Hamburg, he said he tried to investigate them, and never could find anything like a just foundation.
    Colonel Jeptha Norton, after stating her character to be always good, said he had heard the Hamburg reports, and never believed them; he said they were, he believed, as little entitled to credit as a statement made to him, by his son-in-law, George H. Taylor, who told him, at his own table, he had seen the plaintiff’s late husband in the evening carrying her over the Savannah River, in a batteau, to, as he be - lieved, a house of prostitution, in Augusta. This statement, the witness said, he regarded as so absurd, that he never gave it, or any of the kindred reports, the slightest belief. It was abundantly proved, she was received into the best society in Pickens. Col. Miles M. Norton said his wife, with a full knowledge of the reports, received her, as a woman of good character.
    The jury were told, that as the plaintiff had fully proved the contract and its breach,' she was entitled to recover damages. What they were to be, great or small, depended on the defence of the defendant.] His Honor said to them, if it be true, that the defendant, on account of reports injurious to her character, resting on a good foundation, and unknown to him when he made the marriage contract, broke off the contract, then, in that case, small, very small damages ought to be given. If, however, the defendant made or renewed the contract with a knowledge of the reports, they would constitute a much slighter ground of defence.
    The case was fairly submitted under every view of the testimony.
    The jury found for the plaintiff, $625. There was no evidence as to the pecuniary means of the defendant.
    The defendant moved the Court of Appeals for a new trial, on the following grounds, viz ;
    1. Because His Honor erred, in refusing to allow Mr. Maxwell to speak of the general character of the plaintiff, while in Hamburg, because he did not live there; ruling that a witness to speak of the general character of a party, must live in the community in which the party resides.
    . 3- Because His Honor erred, in charging the jury that in the defence of the general bad character of the plaintiff, the defendant must show that the reports respecting her character, were well founded; whereas it is submitted, that according to the law, it is sufficient for the defendant to show that such reports came to his knowledge, and His Honor should have charged the jury to that effect.
    3. Because the damages assessed by the jury, according to the testimony, are. excessive.
    4. Because the verdict is contrary to the law and the evidence.
    
      Wright Sf Keith, for the motion.
    
      Young & Perry, contra.
   Curia, per Withers, J.

The first ground of appeal appears to proceed upon a misapprehension in regard to the exclusion of the-testimony offered through Mr. Maxwell. We learn from the report, that what that witness would have said as to the character of the plaintiff, had been derived, by letter, from persons residing in Hamburg, with whom'a correspondence had been instituted, since the commencement of this action, at the instance of the defendant. There is no room to doubt that such evidence was inadmissible. It is familiar doctrine, that since evidence of reputation partakes of the weakness of hearsay report, its force depends mainly upon the absence of all temptation to misrepresent the facts, and therefore declarations, even as to pedigree, made post litem motam, are inadmissible.

The law is solicitous to open to the jury every legitimate avenue to truth; it secures cross-examination — it compels the attendance of witnesses, except in cases, provided by itself, arising from necessity or great inconvenience — it compels the fullest disclosure, except in a very few instances, where the highest policy and the tenderest relations impose and sanction silence. But the law seeks, also,‘to.send its intelligence to the jury from sources uncorrupt and free from the perversion of oblique forces. Hence it demands, where character is the issue, that public opinion or the general belief, shall indicate that character — a public opinion, or a general belief, existing and matured ante litem motam — a public opinion, (to use the words of Kenyon, C. J. in Foulhes v. Sellway, founded on the conduct of the party.” Since the law presumes that every one, informed of the controversy, has taken a side, at least since the action has been commenced, the public opinion that grows up under such bias is excluded. Since the testimony of Mr. Maxwell was liable to such objection, not to dwell upon the manner in which his information was derived, being by letters written under no responsibility, without cross-examination, by those whose depositions might have been obtained in regular form — this Court is quite satisfied that there was no error in excluding such evidence.

The jury were instructed that if the defendant broke his contract on account of reports, resting on a good foundation, t injurious to the plaintiff’s character, and unknown to him when he entered into the engagement, the damages should be very small. Exception is taken to this proposition.

Suppose the qualification suggested (that the reports should rest “on a good foundation”) had been omitted ; then the jury would have been told, in effect, that the defendant shoulá respond in very small damages if he had heard any injurious reports at all. It is obvious that this would have dono injustice to the plaintiff In such pase her rights, sensibilities, fate in life, would have been left to the sport of idle or malicious calumny- — of that breath of envy that is but too ready to tarnish the brightest surface — that the craft of a whimsical arid unscrupulous defendant might easily contrive the means of his own defence. If such a defence as was set up in this case be permitted to have any effect at all, the rumors upon which it proceeded ought to have been shown to rest upon something proved in the life or conversation of the plaintiff, that would constitute a reasonable foundation for the belief or apprehension of the defendant, that the woman he had promised to marry was impure. The charge on the Circuit was intended to hold him to this rule, and we do not perceive that it conflicts with law or propriety. The defendant was allowed an ample range, to shew what were the rumors that reached his ears, and from what source. He was not restricted in the opportunity to shew the demeanor of the plaintiff. It is necessarily to be inferred that the jury concluded the foundation of the defence was pretensive, altogether, or if the defendant did act on any belief or apprehension, this was merely gratuitous, and had no reasonable ground to support it. What the defendant in fact believed it is impossible to know. But what ought not reasonably to be believed from the mouth of rumor, should not have availed him. This is saying no more than that if he acted upon rumor, he should have been held to shew, in mitigation of damages, not the truth of the rumor, but a reasonable, or “ a good foundation,” for it. Unless we hold such doctrine every executory contract of marriage may be evaded. As to a justification of the breach of such a contract, we see no objection to the proposition announced by Abbot, C, J. in Irving v. Greenwood, to wit, If one has been paying his addresses to a woman that he supposes to be a modest person, and afterwards discover her to be loose and immodest, he is justified in breaking any promise of marriage he may have made to her; but to entitle a defendant to a verdict on that ground, the jury must be satisfied that the plaintiff was a loose and immodest woman, and that the defendant broke his promise on that account, and also that the defendant did not know her character at the time of the promise.” As to excessive damages, how shall we interfere ? The defendant gave the jury no means to determine, and of course we can have none, as to his pecuniary condition. He rested upon the facts he thought proper to adduce; and if it becomes this Court ever to supervise the jury, acting in their peculiar province, this case does not furnish the proper instance.

The motion is dismissed.

The whole Court concurred.

Motion refused.  