fendant was a witness in the criminal prosecution.' A plea of justification of libel, that the plaintiff had been guilty of bigamy, requires as strong proof as on an indictment for that offense; but a plea justifying a charge of polygamy, held sustained by proof of actual marriage in two instances, and of cohabitation and reputation as to a third. To sustain a plea of justification of a charge of perjury, the testimony of two witnesses at least, or of one witness and strong corroborating circumstances, are. necessary. And the defendant must prove not only that the plaintiff's testimony was false, but that it was willfully and corruptly false. The corrupt intent, however, is inferable from the falsity of the testimony. To establish the justification, the testimony which the plaintiff gave on the trial when the alleged perjury was committed, may be received as evidence to be considered by the jury. Under an allegation in the libel that the defendant had crushed the Hygeist system of wholesale poisoning, and that several vendors had been convicted of manslaughter-held that it was not neces

1 Maybee v. Avery, 18 Johns. 352. This was at the time when parties could not be witnesses in their own behalf in civil actions. Where they can be such witnesses probably the exception stated in the text does not apply.

2 Willett v. Harmer, 8 C. & P. 695.

3 Bradley v. Kennedy, 2 Greene (Iowa), 231; Steinman v. McWilliams, 6 Barr, 170; Byrket v. Monohon, 7 Blackf. 83; Woodbeck v. Keller, 6 Cow. 118; Newbit, v. Statuck, 35 Maine (5 Redf.) 31; Dwinells v. Aikin, 2 Tyler, 75; Ransome v. Christian, 56 Ga. 351. This rule was somewhat qualified in Kincade v. Bradshaw, 3 Hawks, 63; Spruil v. Cooper, 16 Ala. 791; see 3 Phillips' Ev. Cowen & Hill's and Edwards' notes, tit. in index, Slander.

4 M'Kinly v. Rob, 20 Johns. 351. That is to say, he must prove technical perjury. (Hicks v. Rising, 24 Ill. 566; McGlenary v. Keller, 3 Blackf. 488; Gorton v. Keeler, 51 Barb. 475; Sloan v. Gilbert, Ct. of App. [Ky.] March, 1876; contra, Wood v. Southwick, 97 Mass. 354.)

"Hopkins v. Smith, 3 Barb. 599.

Newbit v. Statuck, 35 Me. (5 Redf.) 315; Arrington v. Jones, 9 Port. 139. In an action of slander, for charging the plaintiff with perjury in a judicial proceeding, the defendant, on the plea of "not guilty," may prove what the words sworn by the plaintiff were, in mitigation of damages. (Grant v. Hover, 6 Munf. 13.)

sary for the defendant to prove that the system had been entirely crushed, and that proof of the conviction of two vendors for manslaughter sufficiently proved the plea, although the evidence as to the death being occasioned by not complying with the printed regulations in some respects varied from the allegation, there being evidence for the jury as to the cause of death. The admissions of the plaintiff are evidence in support of a defense of justification on the ground of truth.2

$405. Where the words laid charge the plaintiff with having committed a certain offense, evidence will not be received that he committed a different offense, either with the same or with other persons.3 As where the plaintiff was charged with adultery with J. S., it was held that proof of adultery with others than J. S. could not be received. Where the plaintiff was charged with keeping a house of ill-fame, it was held that evidence of unchaste and lascivious conduct of the plaintiff's family, not estab lishing the offense, was inadmissible for any purpose." And where the charge was of perjury on a certain occasion, held that defendant could not justify by proof of

1 Morrison v. Harmer, 3 Bing. N. C. 755; 4 Scott, 524.

* Hill v. Hogg, 4 Allen (N. Brunswick), 108; Bullard v. Lambert, 40 Ala. 204. 3 Pallet v. Sargent, 36 N. H. 496; Sharpe v. Stephenson, 12 Ired. 348; Barthelemy v. The People, 2 Hill, 257; Gregory v. Atkins, 42 Vt. 237. Under a plea of justification for charging plaintiff with fornication with a certain man, evidence that her child is à bastard is not sufficient. (Richardson v. Roberts, 23 Ga. 215.) Where the words charged the stealing of D.'s hay, and the defendant offered evidence to prove that the hay, the subject of the theft so charged, was the joint property of the plaintiff and D., so that in legal effect no such crime was or could have been committed, it was held that as the charge was unequivocally a charge of theft, so intended and so received, the evidence offered by the defendant was inadmissible. (Williams v. Miner, 18 Conn. 464.)

Matthews v. Davis, 4 Bibb, 173; and see Walters v. Smoot, 11 Ired. 315. Bush v. Prosser, 13 Barb. 221. On trial for words imputing unchastity to plaintiff, it is not permissible, under a plea of not guilty, to prove that the house in which the plaintiff resided was a house of ill-fame. (Hackett v. Brown, 2 Heiskell [Tenn.]

To a

perjury on any other occasion than that alleged. charge that plaintiff had had connection with a mare, innuendo been guilty of the crime against nature with a beast, defendant gave notice that he would prove on the trial that plaintiff had had connection with a cow, and on the trial offered to prove the allegation in his notice, the court refused to receive it, either in bar or in mitigation, on the ground that it was not a justification of the specific charge laid, but of another charge distinct as to the subject-matter. A libel charging hardness towards the poor, dissoluteness of morals, and habits of vice and calumny, as conclusions deducible from particular instances enumerated and arranged in it, cannot be supported by proof of other instances of conduct, not detailed or alluded to in it.3

§ 406. The plea of not guilty puts in issue the general character (reputation) of the plaintiff, and therefore upon a plea of not guilty only, the defendant might give in evidence in mitigation the general bad character (reputation) of the plaintiff before and at the time of the publication complained of. "Certainly a person of disparaged fame is not entitled to the same measure of damages with one whose character is unblemished, and it

1 Aldrich v. Brown, II Wend. 596; Whittaker v. Carter, 4 Ired. 461. But where the charge was larceny, held that defendant might offer evidence to prove a particular larceny of the same description as that charged. (Adams v. Ward, 1 Stew. 42.) Andrews v. Vanduzer, 11 Johns. 38.

* Barthelemy v. The People, 2 Hill, 248. In an action for accusing plaintiff of buying and selling by unsealed weights and measures, and also of the crime of gross fraud and cheating at common law, a justification on the ground that the charge was true cannot be supported by evidence that plaintiff " applied to a person to take some damaged meat and sell it, without letting it be known that plaintiff was concerned in the transaction." (Chapman v. Ordway, 37 Mass. [5 Allen], 593.) Where the charge was: “The investigations are not yet ended, but the chief owners believe they have been outrageously swindled.” Proof that the chief owners believed they had been outrageously swindled was rejected. It was neither justification nor mitigation. To justify, the defendant should prove the truth of the allegation, not the belief of the publisher or his informant. (Wilson v. Fitch, 41 Cal. 363.)

As to the difference between reputation and character, see ante, note, p. 84.

I

is competent to show that by evidence." This principle so much discussed at an early day, and for a time left unsettled, has since been so well established by authority as not now to be open for discussion; and such evidence was also admissible where the defendant, in addition to not guilty, put in a plea of justification, and

1 Ld. Ellenborough, in v. Moore, I M. & S. 284. In Bracegirdle v. Bailey, (1 Fost. & F. 536), there was no plea of justification; plaintiff was put on the witness stand, but not examined in chief-held that defendant could not to mitigate damages, put questions to plaintiff tending to discredit him, nor which went to show his bad character. Evidence of plaintiff's reputation may be received without any other plea than a general denial. (Bennett v. Matthews, 64 Barb. 410.)

2 Jewett, J., Hamer v. McFarlin, 4 Denio, 509; citing Foot v. Tracy, 1 Johns. 46; Springstein v. Field, Anthon's N. P. 185; Paddock v. Salisbury, 2 Cow. 811; Douglass v. Toucey, 2 Wend. 352; Root v. King, 7 Cow. 613; s. c. in error, 4 Wend. 113; Richardson v. Northrup, 56 Barb. 105; and see Gilman v. Lowell, 8 Wend. 573; Scott v. McKinnish, 15 Ala. 662; Pope v. Welsh, 18 Ala. 631; Fuller v. Dean, 31 Ala. 654; Anthony v. Stephens, I Mo. 254; Bryan v. Gurr, 27 Ga. 378; Eastland v. Caldwell, 2 Bibb, 21; Bowdish v. Peckham, 1 D. Chip. 144; Bridgman v. Hopkins, 34 Vt. 532; Lamoss v. Snell, 6 N. Hamp. 413; Sawyer v. Eifert, 2 N. & M. 511; Seymour v. Morrill, 1 Root, 459; Vick v. Whitfield, 2 Ham. 222; De Witt v. Greenfield, 5 Ham. 225; Brunson v. Lynde, 1 Root, 354; Wolcott v. Hull, 6 Mass. 514; Clark v. Brown, 116 Mass. 504; Whitney v. Janesville Gazette, 5 Bissell, 330; Alderman v. French, 1 Pick. I; Parkhurst v. Ketchum, 6 Allen, 406; Buford v. McLuniff, 1 N. & M. 268; Henry v. Norwood, 4 Watts, 347; Young v. Bennett, 4 Scam. 43; Sanders v. Johnson, 6 Blackf. 50; McCabe v. Platter, 6 Blackf. 405; Burke v. Miller, 6 Blackf. 155; Steinman v. McWilliams, 6 Barr, 170; McNutt v. Young, 8 Leigh, 542; Stone v. Varney, 7 Metc. 86; Bowen v. Hall, 12 Metc. 232; Sheahan v. Collins, 20 Ill. 325; Bell v. Parke, 10 Ir. Law Rep. N. S. 279. As to the rule in England, see Jones v. Stevens (11 Price, 235), where it is said it is not competent to a defendant to plead a justification, as of plaintiff's general bad character, in general and indefinite terms, but he is bound to state facts specially to give the plaintiff an opportunity of denying them; such pleas are demurrable, and it is` an abuse of the court to put them on record; neither can he any more be permitted to give particular or general evidence of that nature in mitigation of damages, than to plead it in bar of the action. (See Morris v. Langdale, 2 B. & P. 284.) Evidence of general bad reputation of plaintiff was rejected, there being no plea of justification. (Edgar z. Newell, 24 Up. Can. Q. B. Rep. 215; Myers v. Curry, 22 Id. 470.) In an action for slander for charging the plaintiff, a female, with want of chastity, the judge directed the jury “that if they should find that plaintiff had so destroyed her character by her own lewd and dissolute conduct as to have sustained no injury from the words spoken, they might give only nominal damages." (Flint v. Clark, 13 Conn. 361; and see Conroe v. Conroe, 47 Penn. St. R. 198.) If the plaintiff gives evidence of his reputation, the defendant may give counter evidence. (Mitchell v. Kerr, Rowe's Rep. 537.)

gave evidence to support it, but failed to establish it." Whether in New York such evidence would be admissible under a general denial, and without any circumstances in mitigation set up in the answer, does not appear to have been decided in any reported case. In our opinion, to entitle a defendant in the courts of New York to question the general character of the plaintiff, he should state in his answer his intention to give such evidence on the trial.2

§ 407. When an inquiry into the reputation of the plaintiff is permissible, it is his general reputation taken as a whole, and not his reputation as to any particular act or in any particular transaction, that is to be inquired of; 3 and, therefore, evidence cannot be given of his guilt of any specific act of misconduct; as that he had been guilty of false swearing. Where the charge was that the plaintiff, a physician, had no professional knowledge or skill, and lost almost all his patients, it was held that proof of particular instances in which the plaintiff had shown want of knowledge and skill, for the purpose of mitigating damages, was inadmissible. And although it

1 Hamer v. McFarlin, 4 Denio, 509. It was held otherwise in Jackson v. Stetson (15 Mass. 48), and that case was followed in Alderman v. French (1 Pick. 1). But Jackson v. Stetson was questioned in Cilley v. Jenness (2 N. Hamp. 89); Whitaker v. Freeman (1 Dev. 280). (And see Stone v. Varney, 7 Metc. 86; 2 Stark. Ev. 878; and the cases cited in the last preceding note.)

2 Anon., 8 How. Pr. Rep. 434; and see Stiles v. Comstock, 9 Id. 48.

3

Steinman v. McWilliams, 6 Barr, 170; Shilling v. Carson, 27 Md. 175; Wright v. Shroeder, 2 Curt. 548; Fitzgerald v. Stewart, 53 Penn. 343; Lambert v. Pharis, 3 Head (Tenn.) 622; Fountain v. West, 23 Iowa, 9.

Andrews v. Van Deuser, 11 Johns. 38; Vick v. Whitfield, 2 Ham. 222; Dewit v. Greenfield, 5 Ham. (Ohio), 225; Lamos v. Snell, 6 N. Hamp. 413; Sawyer v. Eifert, 2 N. & M. 511; Burke v. Miller, 6 Blackf. 155; Freeman v. Price, 2 Bailey, 115; Ridley v. Perry, 4 Shep. 21; Matthews v. Davis, 4 Bibb, 173; Brown v. Hall, 12 Metc. 232; Parkhurst v. Ketchum, 6 Allen, 406.

Luther v. Skeen, 8 Jones Law (N. Car.) 356.

Swift v. Dickerman, 31 Conn. 285. And such evidence would not be admissible for the purpose of showing the professional reputation of the plaintiff, as reputation can only be proved by the direct testimony of those who are acquainted with it, and not by particular facts. (Id.)