
    *Lincoln v. Chrisman.
    July, 1839,
    Lewisburg.
    (Absent Bbooke, J.)
    Slander — Proof of Malice — Words Formerly Spoken Barred by Limitation. — In an action for slander, in wMch the pleas were not guilty and not guilty within one year, the plaintiff, after proving that the words in the declaration mentioned were "spoken by the defendant within a year prior to the institution of the suit, offered evidence to prove the speaking by the defendant of the same and like words more than a year before the suit was instituted, and, on some occasions, several years prior thereto : Held, the evidence so offered was admissible for the purpose of shewing the defendant's malice towards the plaintiff.
    Same — Evidence—General Character of Plaintiff — Damages. — In an action for slander in imputing per j ury to the plaintiff, after the plaintiff had proved that the defendant had spolten the words mentioned in the declaration, he ashed a witness introduced by him for the purpose, what was his the plaintiff’s general character, when on oath and when not on oath, as a man of truth ? and the witness answered the question favourably to the plaintiff. The defendant’s counsel then, in cross-examining the witness, asked him what was the plaintiff’s general moral character ? and the plaintiff objected to the question. Hislt), the question ought to be answered, because it was asked on a cross-examination. and also because the answer might furnish evidence in mitigation of damages.
    Case for slander, brought by John Chris-man against Abraham Lincoln in the circuit court of Rockingham. The words alleged to have been spoken imported that the plaintiff had perjured himself. Issues were joined on the folio-wing pleas, to wit: 1. Rot guilty; 2. Not guilty within one year; 3. That the matter to which the plaintiff deposed was untrue.
    At the trial, the plaintiff, after proving that the words in the declaration mentioned were spoken by the defendant within twelve months prior to the institution of this suit, introduced a witness to prove the speaking by the defendant of the same and like words more than *twelve months before the institution of this suit, and, on some occasions, several years prior thereto. This evidence, though offered merely for the purpose of shewing the defendant’s malice towards the plaintiff, was objected to by the defendant’s counsel; but the court overruled the objection, and permitted the evidence to go to the jury.
    Afterwards the plaintiff’s counsel introduced a witness to prove the general character of the plaintiff. He asked the witness what was the plaintiff’s general character, when on oath and when not on oath, as a man of truth ? and the witness answered the question favourably to the plaintiff. The defendant’s counsel then, in crossexamining the witness, asked him what was the plaintiff’s general moral character ? To this question the plaintiff’s counsel objected, and the court sustaining the objection, the witness did not answer the question.
    To these two opinions of the court, the defendant’s counsel excepted.
    The verdict returned by the jury was recorded, in the first instance, in the following terms : “that the said defendant is guilty in manner and form as the plaintiff in his declaration against him hath complained, and they do assess the plaintiff’s damage, by occasion thereof, to 700 dollars besides the costs.” On a subsequent day of the term, the court, perceiving that there was a mistake in the entry, corrected the same, and recorded the verdict as follows: “that the defendant is guilty in manner and form as the plaintiff in his declaration against him hath complained, and that the words in the declaration alleged to have been spoken by the defendant of the plaintiff, were spoken by the defendant within one year before the commencement of this suit, and that the said words, so alleged to have been spoken by the defendant of the plaintiff, were not true, but false and slanderous words, as spoken of him *the plaintiff by him the said defendant, as the plaintiff by replying hath alleged, and they do assess the plaintiff’s damage, by occasion thereof, to 700 dollars besides the costs.” Judgment was thereupon entered for the plaintiff, for the damages so assessed, and his costs.
    To this judgment a supersedeas was allowed, upon a petition assigning the following errors:
    1. That the opinion first mentioned was wrong. The effect of it was to deprive the defendant of the benefit of his plea of the statute of limitations. Besides, the evidence objected to was of words actionable in them-s'elves, and such words cannot be proved in order to aggravate the damages by showing malice; they constituting a distinct injury, for which the plaintiff had his remedy by action. The circumstance that he chose to waive that remedy until it was barred by the statute, furnishes no reason for reviving it indirectly in a collateral action, especially as the words already proved were in no wise equivocal or ambiguous. In no point of view can words spoken previously to the grievance complained of and proved, be permitted to aid the plaintiff or prejudice the defendant.
    2. That the other opinion given at the trial was wrong. In the relation to the veracity of a plaintiff, no distinct opinion may have been formed by the public, and a defendant may fail in proving a plaintiff’s character bad in that particular, while he may, by the most satisfactory evidence, prove that the plaintiff’s general character is infamous. Such a plaintiff cannot be entitled to the same measure of damages as one whose character is unblemished. A notorious rogue, perhaps just from the penitentiary, ought not to recover as heavy damages for defamatory words in relation to his veracity, as a man free from all exception. Besides, in this case, the subject of the plaintiff’s general character was introduced by the plaintiff himself, and he had no right to exclude part of it, though he was at liberty to enquire *into the grounds upon which the public belief was founded.
    3. It appears that the verdict, as found by the jury, responded only to the issue upon the plea of not guilty, and the court has undertaken, on a subsequent day, to correct the verdict and make it respond to other issues. In so doing, the court has exceeded its authority.
    Upon these points, the cause was argued in this court by Baldwin for the plaintiff in error, and Michie for the defendant in error.
    The counsel for the defendant in error insisted, 1. That the court below properly decided to admit evidence of the speaking of the same words in the declaration mentioned, and like words, more than twelve months before the bringing- of the suit, in order to shew malice. Starkie on Slander 398, 9, and note on p. S91; 2 Starkie on Evid. 870. On principle, he said, there could be no objection to such evidence. The court would instruct the jury not to give damages for the words so proven out of the declaration, but to receive them merely in proof of the quo animo. Exclude such evidence, and it would, in most cases, be out of the plaintiff’s power to shew the extent of the defendant’s malice.
    2. He insisted that the court did right in excluding* all evidence offered by the defendant to prove the plaintiff’s general moral character, except as touching the charge stated in the declaration. A contrary practice, he said, would be attended with much mischief. 1 ‘General moral character” is a very vague and indefinite phrase, differently understood by every witness, according to his own peculiar moral principles. An abolitionist, for instance, would say that a man’s general moral character was bad, if he held slaves; a religionist, if he lacked chastity; his neighbours generally, if he were quarrelsome or litigious. The case of M’Nutt v. Young, *8 Eeigh 542, does not justify the reception, in mitigation of damages, of evidence of moral character, except on the subject of the particular slander charged. The inconvenience suggested in the petition can never result from thus restricting the defendant, since a notprious rogue, or one just from the penitentiary, could hardly sustain a good general character for truth.
    3. He referred to 1 Rob. Prac. 355, 6, to shew the manner in which verdicts are usually found, and afterwards extended by the clerk; and he said, that was to be presumed to have been the manner here, particularly as there was no exception to the subsequent entry' made by the court. It was not to be supposed that the court had made an entry unauthorized by the actual verdict.
    
      
      Slander — Mitigation of Damages — Evidence—General Character of Plaintiff. — The principal case is cited in Adams v. Lawson, 17 Gratt. 260, 261.
      See monographic note on “Libel and Slander” appended to Bourland v. Eidson, 8 Gratt. 27.
    
   PARKER, J.

I refer to the president’s opinion, for the reasons which induce me to think that the court below committed no error in receiving evidence of slanderous words of the same and like character, spoken by the defendant of the plaintiff before the institution of the suit, for the purpose of proving malice; and none in modifying the entry which had been pre viously made of the verdict and judgment. The refusal of the court to permit the witness to prove the general character of the plaintiff, stands, as I think, on a different footing. It may be, that in actions for slanders charging professional negligence or incompetence, or for words imputing no moral delinquency, and in other similar cases, the evidence of the plaintiff’s general bad character might be properly rejected, as irrelevent to the issue, and as having no bearing upon the question of the amount of damages. About this, I wish to be understood as expressing no opinion. The defamatory words for which this action is brought, import a direct attack upon moral character; and in such case, surely the man of unblemished reputation *is entitled to greater damages than one whose character is already so bad as to receive little or no detriment from the imputed slander. This question was much considered in the case of M’Nutt v. Young, 8 Leigh 542. The point there decided was, that evidence of the general character of the plaintiff in relation to the charge stated in the declaration, ought to have been admitted in mitigation of the damages. That was the precise point presented by the bill of exceptions, and the court of course confined itself to that; but the reasoning of the judges for coming to that conclusion, fully justifies the reception of evidence of the plaintiff’s bad character at large. Indeed it has been seriously doubted, by those who agreed that general character may form the subject of examination, whether to confine the enquiry to the particular character of the party in the capacity in which he has been libelled, would not be infringing the rule that the truth of the words cannot be given in evidence under the general issue. See justice Thompson’s opinion in the case of Foot v. Tracy, 1 Johns. Rep. 46. In the opinion of such persons, the enquiry ought to be confined to general character; but as this court, by a decision of all the judges, has settled that question, we cannot, I think, hesitate in our judgment upon the case at bar.

It cannot be denied that in an action for an injury to reputation, the character of the prosecutor is of some importance in estimating damages. The defendant cannot plead the blemished character of the plaintiff, and for that very reason he ought to be allowed to give it in evidence in mitigation of damages; for it is a settled rule, as was shewn in the case of M’Nutt v. Young, that where a party cannot take advantage of special matter bearing upon the measure of damages, by pleading, he may give it in evidence under the general issue. Otherwise there is no mode by which he can avail himself of a fact which, it must be conceded, ought to have *a material influence upon the quantum of damages. That some inconveniences may result from this practice, and even danger occur of occasional injustice, may readily be admitted; but upon the whole, it is required by the general principle which admits in evidence matters relevent to the cause, and is necessary in a great majority of cases to guide the discretion of the jury, who, without such evidence, will take general character into their estimate, grounded upon their own knowledge, or upon vague and delusive rumours.

There is no great hardship in holding that a plaintiff suing for his character should come prepared to defend it from general attacks. If a witness impugns it, he has a right to call on him to specify the grounds of his opinion; and if, on that cross-examination, it should appear that the opinion was founded on his anti-abolitionism, or his want of chastity, or his intern-perate use of spirits, or his fondness for cards, or his addiction to any other vice which a jury might- consider venial, they would know how to estimate it.

All the authorities on this subject were cited and commented on in the case of M’Nutt v. Young, and it is unnecessary to examine them farther. That case, in my opinion, substantially decides this, and convicts the court below of error in rejecting the testimony of general character offered by the defendant. A fortiori, I think the court erred in refusing it upon the crossexamination. The plaintiff himself had introduced the witness to prove his own general character, and had asked him what was his the plaintiff’s character, when on oath and when not on oath, as a man of truth? The witness answered favorably to him, and then the defendant desired to crossexamine him on the subject of general character. This crossexamination ought, in my opinion, to have been allowed, for the purpose (if for no other) of enabling the jury to estimate what credit was due to the witness’s opinion of good character *in one particular, by comparing it with his character in general. Had the witness answered that his general character was infamous, surely the jury would not have attached much weight to the favourable report he made of his character as a man of truth. But it is unnecessary to enlarge on this ground.

STANARD and CABELL, J., concurred in the opinion that the judgment should be reversed for the error commented on by Parker, J.

TUCKER, P.

Upon the question presented first in the bill of exceptions, I was inclined to differ with the court below, believing that the effect of the decision was to give the plaintiff damages indirectly for a slander which was barred by the statute of limitations. I am persuaded upon reflection, that my first impression was incorrect.

However questionable the practice may seem, to permit the introduction of evidence of words spoken at a different time, in order to prove malice in speaking those charged in the declaration, it seems now too firmly established to be shaken. Though there is some contrariety of opinion as to the admissibility of distinct slanderous matter subsequent to that charged in the declaration, yet I think the weight of authority, as well as the universal practice of the courts, recognizes the right of the plaintiff, after proving the words laid, to go on to prove the speaking of the same or the like words at any time antecedent. I have met with no case in which that right is denied. The admissibility of the proof of the repetition of the same slander at various times, seems to be conceded in all the cases, as the stress of the argument in them has always turned upon the fact that the words were subsequently spoken. Rustell v. Macquister, 1 Camp. 49, note; Macleod v. Wakley, 3 Carr. & Payne 311; 14 Eng. C. L. Rep. 322; Tate v. *Humphrey, 2 Camp. 73, note, and Bodwell v. Swan et ux., 3 Pick. 376, are cases in which subsequent slanders were admitted for the purpose of shewing malice. The case of Mead v. Daubigny, Peake’s Cas. 125, decided by lord Kenyon, is contra: but lord Kenyon himself decided differently in, Lee v. Huson, Peake’s Cas. 166. In Finnerty v. Tipper, 2 Camp. 72, chief justice Mansfield seemed inclined to modify the rule, though it would appear that he approved the decisions. But his opinion also refers to subsequent words, and therefore does not touch the question of the antecedent speaking of the same words. I take it, then, that such proof is clearly admissible.

But it is said, that where the speaking of the words attempted to be given in evidence was more than a year anterior to the trial, an action for them is barred by the statute, and that as the proof of them would, tend to inflame the minds of the jury and to increase the damages, the plaintiff will in-direcly recover damages for a wrong, for which the action is gone forever. This argument is very plausible, but I think it unsound. The evidence is introduced solely to prove the deep-seated malice with which the last words were spoken, and is jjer-mitted to go to the jury with that qualification ; Rustell v. Macquister, 1 Camp. 49, note. With that qualification, there can be no objection to admitting proof of the antecedent speaking of the same words, although the action for them is barred; Eor I apprehend, even if the plaintiff had sued for them and recovered damages for them, the proof of that fact would be good evidence in an action for repetition of the same slander. Is it not obviously a gross aggravation of a subsequent slander — is it not strong evidence of the most deeprooted malignity, that even the conviction and the punishment of the slanderer has worked no reformation in his conduct, and has been unavailing to arrest the foul current of his abuse? Is it not a reason for increasing the penalty of this new transgression, ‘^repeated after he has had an opportunity of justifying his accusations, and has shrunk from or has failed in the attempt? I cannot doubt it. Yet who ever thought of rejecting the proof of the fact, because the plaintiff had already recovered damages for the first slander, and cannot refer to it to increase the damages for the second? So in this case, though no action has been brought for the first slander, is it not an aggravation of the last, that it is repeated? When the plaintiff, in a spirit of forbearance, has waived his right of action for the first slander, either perhaps because it was uttered in a moment of heat, or that he felt an innate consciousness that he would live down the calumny by the correctness of his life, is it no aggravation of a repetition of the slander, that the defendant, regardless of his forbearance, will not let him live in peace? Admit that no damages whatever are allowed for the first slander, is not here ample ground for increasing the damages for the second? I think there is, and am therefore of opinion that the testimony was properly admitted.

On the second question, I was inclined to think that the enquiry as to general character should be confined to the particular matter which is the subject of the charge. But my brethren think differently, and I willingly defer to their opinion.

As to the third point, there being no exception, X must presume every thing right. X have no doubt, enough matter appeared to the judge of the court below to authorize his newmodelling the entry, and I must take it for granted that it did so appear, as the contrary is not shewn by an exception.

There being, however, in the opinion of a majority of the court, error in the refusal to permit an enquiry as to the plaintiff’s general character, the judgment must for that cause be reversed.

Judgment reversed.  