876.) Parker C. J. refers to Alderman v. French; and adds, that such evidence would answer all the purposes of the defendant, without exposing him to the consequences of attempting to justify, and failing in the attempt. Besides, the plaintiff would have no notice. The defendants in such a case ought to be ready to take the ground openly, that what they have said is true; or they should be ready to discharge themselves of malice under the general issue, in some of the ways which have been allowed as legitimate grounds of defence. As to rumors, it is added, these very stories may have originated in slander; and character could not be protected, if the third or fourth circulator should be able to defend himself, or reduce the damages because he only gave more publicity, and added the weight of his character to calumny which had been originated by others.

The rule is admitted, that the general character may be attacked because that is relied upon as the ground of damages; and the plaintiff is supposed at all times to be prepared to sustain his general character; but not to disprove, without notice, particular facts.

It is true indeed, that in the case of - v. Moor, (1 M. & S. 284,) the defendant was allowed to cross-examine the plaintiff's witnesses, as to reports of the same nature with the slander. This was done expressly upon the authority of Leicester v. Walter, (2 Campb. 251.) In that case such evidence was admitted upon the plea of not guilty. Mansfield, Ch. Justice, declared then that

he could not answer the arguments against it; but it had been decided that if you do not justify, you may give in evidence any thing except the truth of the charge, in mitigation. He did not cite any case. He also relied on the averment in the declaration that the plaintiff had always maintained a good character.

It appears, however, that the English courts intended to confine the rule to cases where there had been no attempt to justify. In Snowdon v. Smith, 1. M. & S. 286, note (a), the defendant pleaded a justification. Chambre, justice, would not permit any evidence of reports such as were allowed in other cases. Leicester v. Walter was cited; but he held that it did not govern the case before him, where the defendant by his plea had put the issue upon the truth of the charge imputed. The distinction taken by Mr. Justice Chambre, is perhaps the true one, between those cases in which circumstances may be given in evidence in mitigation, and those in which they will be rejected. It is certainly the only one upon which the various cases can be reconciled.

The question as to what facts and circumstances operate in mitigation of damages under the general issue alone, is not free from difficulty; because courts are not uniform in their doctrines on the subject; and different cases admit of different considerations. It seems to have been the rule once, that the truth might be given in evidence upon the general issue, in mitigation of damages. (Bull. N. P. 9.) In Smithies v. Harrison,

(Ld. Raym. 727,) the words imported a charge of adultery with Jane at Stile. Holt, Ch. J. ruled that the defendant might, in miti gation of damages, give evidence that the plaintiff committed adultery with Jane at Stile; but not with any other woman. This was so ruled at nisi prius about 1701. It is to be presumed that the practice was not uniform; for in Underwood v. Parks, (Str. 1200, A. D. 1744,) Ch. J. Lee refused the evidence, saying that at a meeting of all the judges upon a case that arose in the common pleas, a large majority of them had determined not to allow it for the future; but that it should be pleaded, whereby the plaintiff might be prepared to defend himself, as well as to prove the speaking of the words; that the rule extended to all sorts of words; and not barely to such as imported a charge of felony. Such is the rule in this court. (14 John. 233.) In Shepard v. Merrill, (13 John. 477,) Spencer, justice, says, no principle is better established, than that the truth of slanderous words cannot be given in evidence under the general issue, either as a defence, or in mitigation of damages. In that case, the defendant had offered in an action for words imputing theft, to prove suspicious circumstances in relation to the charge complained of; but the evidence was rejected.

At present the rule in England seems to be, that, in actions for words, the defendant may give in mitigation of damages, any evidence short of such as would be a complete defence to the action, had a justification been pleaded,

(Starkie on Slander, 406.) He may also give evidence of the plaintiff's general bad character in mitigation of damages. (1 Ph. Ev. 146, and cases there cited.)-The same rule prevails here as to general character. (2 Cowen, 813, 14.) This is upon the prin ciple that a person of disparaged faine, is not entitled to the same measure of damages, as another whose character is unblemished. It is remarked in 1 Ph. Ev. 147, on the authority of Snowdon v. Smith, that such evidence is not admissible where the defendant by his plea, puts in issue the truth of the charge imputed. But by a nisi prius case, Kirman v. Oxley, mentioned in note (4) to that page, it seems that bad character generally may be shewn under any state of pleadings; I presume, however, no circumstances of suspicion against the plaintiff as to the particular slander, except under the general issue only.

After a careful examination of the authorities cited, and many others, I concur perfectly with Mr. Anthon, as far as he goes, in his note to the case of Else v. Ferris, (Anthon N. P. 25, note (c).) The action is founded in actual or presumed loss of the plaintiff, arising from the malicious publication of the defendant. If the charge made by the defendant is true, however malicious, no action lies. Upon an indictment, indeed, the defendant should shew that the publication was made from good motives and for justifiable ends; but in a private action at the suit of the party aggrieved, I consider the motives to be out of the question. When the

publication is libellous, the plaintiff need not shew either actual damage to himself, or express malice in the defendant. Both are necessary presumptions. The defendant must then justify or excuse the publication, or a recovery must be had against him. He may shew in evidence, under the general issue, by way of excuse, any thing short of a justification which does not necessarily imply the truth of the charge, or tend to prove it true; but which repels the presumption of malice arising from the fact of publication. And, under any circumstances, he may shew that the plaintiff's reputation has sustained no injury, because he had no reputation to lose. When the defendant undertakes to justify because the publication is true, the plea, or, which is the same thing, a notice of justification, is a re-publication of the libel. It is an admission of the malicious intent with which the publication was first made. Hence it is the uniform practice of this court not to allow such a plea to be withdrawn, without an affidavit of its falsity to be put upon the record: And upon the trial, the jury are instructed, that if the plea is false, it is an aggravation of the offence, and calls for enhanced damages. Such a state of the case, and such an instruction to the jury, is totally inconsistent with the idea of mitigation resting upon the absence of malice. That is confessed upon the record. When, however, the defendant does not, by the pleadings, admit the malice, then he may excuse his conduct by shewing such circumstances as disprove a malicious intent. A

variety of instances are given in the books. But as, under the general issue, the truth cannot be given in evidence, either in justi fication, or in mitigation of damages, it seems to follow upon principle, that circumstances tending to prove the truth are equally inadmissible. There is an inconsistency in admitting weak evidence, and excluding that which is conclusive. Beside, as to want of notice; the plaintiff must be equally surprised by having his guilt proven by suspicious circumstances, as by positive proof.

Evidence of the plaintiff's general character is proper, because, whether the defendant has acted maliciously or not, can make no difference, in point of injury, to a character that is so bad, as to be incapable of receiving injury.

Such, I think, are the conclusions to be drawn from adjudged cases and approved principles: and if warrantable, they will aid us in rightly determining upon the correctness of the judge in the directions to the jury. He told them that the defendant might not give evidence of general character, as to temperance, in mitigation, unless of the same quality and degree charged in the libel.

The defendants had published an outrageous libel upon the plaintiff, if false. When prosecuted, they do not disavow the malice, and claim exemption from damages by bringing themselves within some of the exceptions to the general rule as to the implication of malice. They come into court; and when they may be supposed to have ascertained whether they were mistaken in the first publication, deliberately assert upon record that

the publication is true; and that the plaintiff was frequently intoxicated when presiding in the senate. So far then from disclaiming malice, they virtually admit it in the face of the court. They are clearly excluded, therefore, from the benefit of any defence based upon the absence of malice. If the evidence offered, of general intemperance, was to operate in favour of the defendants, by raising a presumption that the plaintiff was actually in the situation described in the libel, then it was clearly improper. The justification must be as broad as the charge. If the evidence was offered in mitigation, to repel the presumption of malice, then they were not entitled to it, because they had admitted the malicious intent by the notice. The evidence then could have no possible legal effect, unless it was to shew the plaintiff's general bad character. His general character was in issue; and to that should the evidence have been pointed; not to any foibles, or failings or vices, which may derogate from a good general moral character. The plaintiff had courted an investigation into his general character; which had been declined; and, of course, that was admitted to be good. The general character should form the subject of examination. The character of the plaintiff comes in collaterally. It is not distinctly put in issue. To confine the inquiry to the particular character of the party, in the capacity in which he has been libelled, would be, in some measure, infringing on the well settled rule, that under the general issue, the truth of the words cannot be given in evidence in mitigation of

damages. (Per Thompson, J. in Foot v. Tracy, 1 John. 45.) The plaintiff's character at large, or in gross, if I may be allowed the expression, was in issue; and as such might be attacked but not in detail; as by shewing it defective in some particulars. As an attack upon the general character, it would be equally improper to prove the plaintiff intemperate in the use of spirituous liquors, as to shew that he was in the habit of playing cards, or libidinous, or was reputed a liar, or the devotee of any particular vice. The question to the witness should be, what is the plaintiff's general character? If the witness says it is bad, the defendant has attained his object. Should the plaintiff call on the witness to specify the grounds. of his opinion, he would have a right so to do but it can never be permitted to the defendant to prove the plaintiff's character bad by attacking it in detail or by piece-meal. That would be like provoking particular facts against a witness whose character is in issue. This is never allow

ed.

In no point of view, therefore, was the testimony admissible under the pleadings, even without the qualification of the judge. Had such evidence been offered under the general issue alone, with a view to show the court and jury that there was no malice in the defendants, because in reality they only repeated what every one else did, and what the plaintiff's conduct led them to believe was the truth, a very different question would have been presented. They would then have brought themselves within some of the recent

English cases; which now have no direct application to this case, because the question arose under a totally different state of the pleadings.

3. As to the receiving of improper testimony, I think there was none. The journals were shewn to have been printed by the printer to the state, and to have been laid upon the tables of members, where any error would probably have been corrected. They were proved by the clerk. This was certainly, prima facie, enough. A printed copy of public documents, transmitted to congress by the president of the United States, and printed by the printer to congress, has been holden to be admissible as evidence.

As to the rejection of proper testimony; that is necessarliy negatived in the view which I have taken relative to the admissibility of reports and character.

4. Was the verdict against evidence? Whether the libel was true or not, was the question before the jury. The evidence was contradictory. It was the province of the jury to weigh it; and

the court ought not to set aside the verdict unless in a clear case.

5. Are the damages excessive? In the case of Tillotson v. Cheetham, (2 John. 63,) the recovery was $1400 in favour of the secretary of state, against a printer, for a libel imputing to him corrupt conduct. The court said, "We cannot interfere on account of the damages. A case must be very gross, and the recovery, enormous to justify our interposition on a mere question of damages, in an action of slander." The same point was so decided in Coleman v. Southwick, (9 John. 45.) and Southwick v. Stevens, (10 John. 443.) These cases were between editors and printers of newspapers. In one the verdict, was $1500; in the other $640.

In actions for libel and for other defamation, unless some rule of law has been violated, or there has been some improper conduct by the parties or jury, a new trial will not be granted. (3 John. 180. 9 id. 36. 15 id. 493.) The motion for a new trial must be denied. New trial denied.