has been said that when a defendant may give evidence of the general bad reputation of the plaintiff, he is not confined to the subject-matter of the defamation complained of, yet in an action for charging the plaintiff with perjury, it was held erroneous to admit evidence of his general bad character for truth. And where the charge as proven was of burning a jail and murdering a man in it, but there was some evidence that it was only of aiding an escape from the jail, held, that the evidence that the defendant was reputed guilty of the latter offense, was inadmissible for any purpose. The defendant imputed to the plaintiff, who was a clergyman, these words: “Mr. S. said the blood of Christ had nothing to do with our salvation, more than the blood of a hog." Held, that testimony tending to prove that the plaintiff denied the divinity of Christ and the doctrine of his atonement, and said he was a created being, a good man and perfect, his death that of a martyr, but that there was no more virtue in his blood than that of any creature, was not admissible, either in justification or mitigation. In an action of slander for having called the plaintiff a thief, and saying that he had stolen his (defendant's) spar," the defendant, in mitigation of damages, offered in evidence the

1 Sayre v. Sayre, 1 Dutcher, 235; Lamos v. Snell, 6 N. Hamp. 413; Sawyer v. Eifert, 2 N. & M. 511; see, however, Wright v. Shroeder, 2 Curtis C. C. 548. The inquiry should be confined to the plaintiff's general character for integrity and moral worth, or to conduct similar in character to that with which he was charged by the defendant. (Leonard v. Allen, II Cush. 241.)

* Steinman v. McWilliams, 6 Barr, 170. In an action for charging the plaintiff with perjury, the plaintiff proved the speaking of the words charged, and then asked the witness what was the plaintiff's general character, when on oath and when not on oath, as a man of truth. The witness answered the question favorably 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. Held, that the question ought to be answered, because it was on cross-examination, and because the answer might furnish evidence in mitigation of damages. (Lincoln v. Chrisman, 10 Leigh, 338.)

3 Cole v. Perry, 8 Cow. 214.

4 Skinner v. Grant, 12 Vt. 456.

record of a verdict and judgment in his favor against A., for having taken maliciously, and converted to his own use, the spar in question, it was held that such evidence was inadmissible.' And where the charge was that the plaintiff was a thief, and had stolen the defendant's corn, and the defendant justified, held that evidence that the parties were tenants in common of some corn, and that the defendant had taken secretly, unfairly, and dishonestly, more than his share, was not admissible either in justification or mitigation. Mistake, to mitigate, must be mistake of fact and not of law."

§ 408. The rule in relation to proof of the character of the plaintiff is, that the inquiry must be made as to his general reputation where he is best known, and the witness ought ordinarily to come from his neighborhood. But what the extent of such neighborhood is, and what credit is to be given to witnesses near and remote, are questions for the jury in determining the general character of the person in question.3 One who went to the place of the plaintiff's former residence to learn her character while there, is not competent to prove it; nor if plaintiff kept boarders at the time of the slander, is evidence of their opinion admissible; nor can one testify who knows nothing about the plaintiff's reputation but what he heard from witnesses at a prior circuit. A jury, in estimating character, are to take the testimony of wit

1 Watson v. Churchill, 5 Day, 256.

2 Bisbey v. Shaw, 15 Barb. 578.

'Powers v. Presgroves, 38 Miss. 227. The reputation of the plaintiff, among the minority of his neighbors, is inadmissible. (Id.; and see Swift v. Dickerman, 31 Conn. 285.) In an action for accusing the plaintiff of unchasteness, where a witness deposes that the plaintiff's character for chastity is bad, it is not necessary that the witness should first have been asked whether he knows the plaintiff's general character for chastity. (Senter v. Carr, 15 N. Hamp. 351.) A witness who has stated that the plaintiff's character for moral worth is bad, may be asked, on crossexamination, what immorality is imputed to him. (Leonard v. Allen, 11 Cush. 241.) + Douglass v. Tousey, 2 Wend. 352.

nesses who are supposed to be able or capable of reflecting, in general terms, the judgment of the public. Proof of the bad reputation of the plaintiff, although of a kind that could not have been caused by the slander, must be of his reputation prior to or at the time of the publication complained of. His bad reputation subsequent to the publication complained of may have been the effect of such publication.

§ 409. The defense of truth must be specially pleaded. The defendant cannot, under the general issue, prove the truth of the publication complained of.3 But if the plaintiff give in evidence parts of the publication not set forth in the declaration, the defendant may, under the general issue, justify such parts. The proof of the repetition by the defendant of the words complained of, after the commencement of the action, will not confer upon the defendant the right under the general issue to give evidence of the truth of the matter published. And under the general issue the defendant cannot, even in mitigation, give evidence of any facts which conduce to prove the truth, or which form a link of evidence to that end. The rule was that evidence in mitigation must be

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

Douglass v. Tousey, 2 Wend. 352. Where the charge was of general unchastity, it was held that under the general issue the general bad reputation of the plaintiff might be shown in mitigation. (Conroe v. Conroe, 47 Penn. 198; Kennedy v. Holborn, 16 Wis. 457.)

3 Beardsley v. Bridgeman, 17 Iowa, 290: Porter v. Botkins, 59 Penn. 484; McCampbell v. Thornburgh, 3 Head (Tenn.) 109; Shirley v. Keathy, 4 Cold. (Tenn.) 29; Barrows v. Carpenter, I Cliff. 204; Barnes v. Webb, 1 Tyler, 17; Small v. McKenzie, Draper's Up. Can. Rep. 174. Semble, that in slander of title the rule is otherwise. (Watson v. Reynolds, M. & M. I;,see § 354, ante.)

4 Henry v. Norwood, 4 Watts, 347; and see Woodburn v. Miller, Cheves, 194; Burke v. Miller, 6 Blackf. 155; Stow z. Converse, 4 Conn. 18; Wagner v. Holbrunner, 7 Gill, 296.

Teagle v. Deboy, 8 Blackf. 134.

6 Purple v. Horton, 13 Wend. 9; Scott v. McKinnish, 15 Ala. 662; Teagle v. Deboy, 8 Blackf. 134; Thompson v. Bowers, 1 Doug. 321; Swift v. Dickerman, 31

And if a de

such as admitted the charge to be false. fendant failed to establish a plea of justification, he was not entitled to any benefit from the evidence given in support of such plea, and which tended to prove the truth of the charge. Nor was a defendant allowed to prove in mitigation any circumstance which tended to prove the truth of the charge, although he expressly disavowed a justification, and admitted the falsity of the charge. But he might prove in mitigation circumstances which induced him erroneously to make the charge complained of, and thereby rebut malice, provided the evidence did not necessarily imply the truth of the charge, or tend to prove it true. A defendant justifying, and failing in his proof, may offer evidence in mitigation of

Conn. 285; Wagstaff v. Ashton, 1 Harring. 503; Grant v. Hover, 6 Munf. 13; Henson v. Veatch, 1 Blackf. 369; Else v. Ferris, Anthon, 23; Gilman v. Lowell, 8 Wend. 573; and see Owen v. McKean, 14 Ill. 459; Williams v. Miner, 18 Conn. 464; McAlister v. Sibley, 25 Maine (12 Shep.) 474. Particular facts, which might form links in the chain of circumstantial evidence against the plaintiff, cannot be received under the general issue in mitigation of damages. (Wormouth v. Cramer, 3 Wend. 395.)

1 Cooper v. Barber, 24 Wend. 105.

Fero v. Ruscoe, 4 N. Y. 162.

3 Petrie v. Rose, 5 Watts & Serg. 364; Watson v. Moore, 2 Cush. 133; Regnier v. Cabot, 2 Gilman, 34; Veesey v. Pike, 3 C. & P. 512.

4 Minesinger v. Kerr, 9 Barr, 312; Shilling v. Carson, 27 Md. 175; Howard v. Thompson, 21 Wend. 319. Plaintiff was arrested for beating his wife, and taken before an alderman; defendant published an account of the arrest, held he might show the circumstances which induced the publication. (Donnelly v. Swain, 2 Phila. Rep. 93.) Defendant may show in mitigation that he copied the matter complained against from the journals of Congress. (Romayne v. Duane, 3 Wash. C. C. 246; ante, note 2, p. 374.)

Held, in action against the publishers of a newspaper, that the defendants could not show that an article similar to that complained of had shortly before been published in another newspaper. (Sheahan v. Collins, 20 Ill. 325.) In slander for saying, "Negro Jude said, &c., and it is reported everywhere," evidence that the negro did use the actionable words, held admissible in mitigation as showing defendant's motive. (Williams v. Greenwade, 3 Dana, 432.) Where a defendant utters defamatory matter as on his own knowledge, evidence will not be received on the trial that the matter was communicated to him by another. (Elliott v. Boyles, 31 Penn. 65.) The fact of the article being copied from another paper, held a ground for giving only nominal damages. (Davis v. Cutbush, 1 Fost. & F. 487.)

damages, if it is set up in his answer. The Code of New York has so far modified these rules as to admit, in mitigation, circumstances which tend to prove the truth of the charge, and to give a defendant (who has claimed the right by his answer), the benefit of evidence in support of a plea or answer of justification, when such evidence falls short of proof, but nevertheless tends to prove the truth of the charge; and to admit in mitigation anything which occasioned the defendant, at the time of making the publication, to believe it to be true.* It is no excuse that at the time of the publication defendant expressed his disbelief in the truth of the charge,s

§ 410. Whether or not the defendant may, in mitigation of damages, give evidence of improper conduct of the plaintiff calculated to invite the language complained

1 Morehead v. Jones, 2 B. Monroe, 210; Landlis v. Shanklin, 1 Smith (Ind.) 78; West v. Walker, 2 Swan (Tenn.) 32; Thomas v. Dunaway, 30 Ill. 373; Pallett v. Sargent, 36 N. Hamp. 496; contra, Shelton v. Simmons, 12 Ala. 466; Code of Rem. Just. § 535.

Russ v. Brooks, 4 E. D. Smith, 644.

3 Bush v. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 12 N. Y. 67. And so held in Michigan. (Huson v. Dale, 19 Mich. 17.)

4 Dolevin v. Wilder, 34 How. Pr. Rep. 488; Stanley v. Webb, 21 Barb. 148; Bennett v. Matthews, 64 Barb. 410. As to the rule that the defendant might show in mitigation belief in the truth not amounting to the actual truth, see Williams v. Miner, 18 Conn. 464; Stees v. Kemble, 27 Penn. St. R. 112: Hutchinson v. Wheeler, 35 Vt. (6 Shaw), 330; Gilman v. Lowell, 8 Wend. 573; Gorton v. Keeler, 51 Barb. 475; Byrket v. Monohon, 7 Blackf. 83; Cooke v. O'Brien, 2 Cranch C. C. R. 17; Turner v. Foxall, Id. 324; Fountain v. West, 23 Iowa, 9; Huson v. Dale, 19 Mich. 17. Testimony offered by the defendant to show that the words charged were spoken with reference to a bill in chancery which he supposed was sworn to by the plaintiff, and did contain false allegations, but which he afterwards ascertained was sworn to by another, is inadmissible in mitigation of damages. (Owen v. McKean, 14 Ill. 459; but see Purple v. Horton, 13 Wend. 9; Van Derveer v. Sutphin, 5 Ohio, N. S. 293.) For the purpose of proving that the owner of a building which has been set on fire had reason to believe that a particular person was the incendiary, and used good faith in making statements charging him with the crime, evidence that he was informed of declarations and acts of the suspected person, tending to show his guilt, is competent. (Lawler v. Earle, 5 Allen [Mass.] 22.)

Burt v. McBain, 29 Mich. 260.