
    Isaac S. Smith, Appellant, against John Shumway, Appellee.
    
      Vermont Stat. vol. 1. p. 56. c. vi. s. 7.
    
    The facts stated in a notice under the general issue cannot be taken as evidence against the defendant.
    
      Vermont Stat. vol. 1. p. 95. c. vi. s. 98.
    In an action of defamation the general character of the plaintiff cannot be shown in evidence by defendant in mitigation of damages.
    IN this trial, Robinson and Tyler, Judges, having been of counsel, Jacob, Assistant Judge, sat alone.
    Defamation. General issue pleaded, with notice, and cause to the Jury.
    In the course of the trial, plaintiff’s counsel said they should rely on certain facts set forth in and confessed by the defendant’s notice.
    The defendant’s counsel said these supposed facts were set forth in the notice merely by way of inducement, and prayed leave to strike them out.
    
      Curia. It is immaterial whether the facts set forth in the notice are stated merely as inducement, or are substantial. They cannot be taken as evidence against the defendant. The notice under the general issue is simply to apprize the plaintiff of any special matters which the defendant shall rely upon in his defence or justification. It amounts to no confession in fact or by implication of law. If it did, the Court would certainly compel the adverse party to take the whole confession together, and not to select certain allegations of the notice as true, and put the defendant upon the proof of others.
    The defendant moved to show the general character of the plaintiff in mitigation of damages.
    
      
      Vermont Stat. vol. 1 p. 94, 95. c. vi. s. 97 and first proviso.
    The appellant in an action of defamation, who on the appeal recovers under 7dollars, can tax no more costs than damages.
    Robinson, for defendant.
    
      Curia. It cannot be admitted.
    Verdict Tor the plaintiff, 6 dollars.
    The plaintiff moved to tax full costs.
   Curia.

The statute is express. There can be no greater costs than damages. Costs taxed at 6 dollars.

- — , for plaintiff.  