I believe this has been the uniform practice for a great number of years.]
To show that it is admissible upon precedent, the counsel cited the following authorities: Peak. Ev. App. 92. 1 Phil. Ev. 140. Earl of Leicester v. Walter, (2 Campb. Rep. 251.) -v. Moor, (1 M. & S. 284.) Larned v. Buffington, (3 Mass. Rep. 546.) Brunson v. Lynde, (1 Root, 354.) Seymour v. Merrills, (id. 459.) King v. Waring et ux. (5 Esp. N. P. Rep. 13.)
So of several other actions, which involve character: In adultery. (Elsam v. Faucett, 2 Esp. N. P. Rep. 562. Bull. N. P. 27, 296. 1 Phil. Ev. 139. Bromley v. Wallace, 4 Esp. N. P. Rep. 237.) In an action for seduction. [Bamfield v. Massey, 1 Campb. Rep. 460. Dodd v. Norris, 3 Campb. Rep. 519. Boynton v. Kellogg, 3 Mass. Rep. 189.) In an action for a malicious prosecution. (Rodriguez v. Tadmire, 2 Esp. N. P. Rep. 721.) Breach of marriage promise. (Johnson v. Calkins, 1 John. Cas. 116.)
They also cited Finnerty v. Tipper, (2 Campb. Rep. 72.)
Curia per Sutherland J.Evidence of the plaintiff’s general character was properly admitted by the Judge. The plea was the general issue, merely, without any attempt to justify. In such cases, it is admissible for the defendant to prove many circumstances in mitigation of damages, and, among others, the bad character of the plaintiff. In Foot v. Tracy, (1 John. Rep. 46,) the Court were equally divided upon this point, Kent, Ch. J. and Thompson; J. being *814of opinion that the evidence was admissible, and Livings-^on an¿ Tompkins, Js. that it was not.
The opinions of the former seem to me to be supported by the better reason, and they certainly are in accordance with the late English and American authorities. Thus in the Earl of Leicester v. Walter, (2 Campb. Rep. 251,) which was an action for a libel, the defendant was permitted to show in mitigation of damages, that before, and at the time of publication, the plaintiff was generally suspected to be guilty of the crime imputed to him; and that on that account his relations and friends had ceased to associate with " him. Ch. J. Mansfield said the rule was so settled. The same doctrine was held by Eyre, Ch. J. in Knobell v. Fuller, (Peak. Ev. App. 92, 3d ed.) So in King v. Warring et ux. (5 Esp. Rep. 14.) Lord Alvanley says, “ that where the words charge the party with a crime or conduct injurious to his reputation, evidence of antecedently good character is admissible; general character is, in some respects, puf in . issue.” The case of the Earl of Leicester v. Walter was sanctioned by the King’s Bench in-v. Moor, (1 M. & S. 285.) Lord Ellenborough says, “certainly a person of disparaged fame is not entitled to the same measure of damages with one whose character is unblemished ; and it is competent to show that by evidence.” In Larned v. Buffington, (3 Mass. Rep. 546,) the same principle was recognized, though the evidence decided to be admissible there related to the rank and condition, and not the character of the plaintiff. In Walcott v. Hall, (6 Mass. Rep. 514,) Ch. J. Parsons admits the rule to be, that evidence of the plaintiff’s general character may be given in mitigation of damages. The evidence was rejected in that case on the ground that it did not relate to his general character but went to prove the existence of particular reports injurious to him. It was inadmissible, in that case, also, because the defendant had put in a plea of justification.
In Rodriguez v. Tadmire, (2 Esp. Rep. 721,) the defendant was permitted to give evidence of the general bad character of the plaintiff in an action for a malicious prosecution. So also in actions for criminal conversation, and breach of *815promise of marriage, the general character of the wife, in the one case, and the plaintiff in the other, as to chastity, may be given in evidence in mitigation of damages. (1 John. Cas. 116, Bull. N. P. 27, 296, 1 Phil. Ev. 139.) That the character of the party in actions of this nature should be taken into consideration in estimating his damages, all must admit ; and since the want of character cannot be pleaded specially, it must be admitted under the general issue. Nor is there, as Oh. J. Kent observes, any general principle of law violated by it. Every man is supposed capable of sustaining his general character, though no man is presumed to be capable of repelling a specific charge without notice.
As to the verdict of the jury, we cannot disturb it. (Dexter v. Taber, 12 John. 239.) There was no misdirection of the Judge, or any rule of law violated ; and the general rule is undoubtedly, as stated by Mr. Justice Spencer, in Jarvis v. Hatheway,(3 John. Rep. 180,) that in penal actions, and in actions for a libel or defamation, and other actions, vindictive in their nature, unless some rule of law be violated in the admission or rejection of evidence, or in the exposition of the law to the jury, the Court will not give a second chance of success. (1 Burr. Rep. 24. 2 Salk. 644.)
Motion denied.