Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-01

/ tablished by the proof. This would, per-
baps,1 have been the case but for the
special request of plaintiff in error for
special Instructions on this subject. The
refusal TO give the Instructions asked for
1 was equivalent to an expression of opin-
ion, on the part of his Honor, that if the
words were spoken in heat of passion or
i anger, the circumstance could not be
/ looked to in mitigation of damages.
| On the trial of this cause the plaintiff
in error offered, in various forms, to
| prove the character as to chastity of the
| family in which the defendant in error
resided at the time of the alleged SANDER,
and to show that, prior to that time, she
resided in the same house with her
mother and sisters, and that "the general
reputation and belief of the community
was that their said house was a
common rendezvous where lewd men
met and engaged in acts of adul-
terry and fornication with the inmates
of said house," bat his Honor refused to
allow such proof to be made and it is
insisted, for plaintiff in error, that this is
ground of reversal.
SIT is perfectly well settled that, under
the general issue, the defendant cannot be
admitted to prove the truth of the words,
either in bar of the action or in mitiga-
ton of damages" / Greenl. Ev., 1924.
And, whatever controversy may have ex-
listed on the. subject, we regard it as
equally well settled that ''the defendant
may impeach the plaintiffs character by
general evidence in order to reduce the
amount of damages" Ibid, S424.
Mr.. Starkie, in his treatise on the law
of SANDER and libel, has happily observed
that: General evidence to show that
the plaintiff, previously to the alleged
SANDER, labored under general suspicion
of having been guilty of similar prac-
tees, seems, in principle, to be admissi-
be, as Immediately and necessarily con-
nected with the question of damages.
He complains Of loss of reputation and
that he has been deprived of his character
by the act of the defendant. Is
not the defendant, then, to be permitted
to show that the plaintiff g character
was previously tainted with suspicion or
that he had, in fact, little character or re-
putation to lose. To deny this, would be
to decide that man of the worst charac-
ter was entitled to the same measure of
damages with one of unsullied and I'M
blemished reputation; a reputed thief
would be placed on the same footing with
the most honorable merchants virtuous
woman with the most abandoned prosti-
tute. To enable the jury to estimate the
probable quantum of injury sustained,
knowledge of the party's previous charac>
ter is not only material but seems to be
absolutely essential" 2 Wend., Stark on
81. 78 But, while such is the general
doctrine, it is no less firmly established
principle that particular facts, forming
links in the chain of circumstantial evid-
ence against the plaintiff to establish the
proof of the charge, cannot be received
in evidence under the GENERAL issue ia
mitigation of damages. Ibid. 80, 81. If
the plaintiff in error had pleaded
plea of justification, evidence
that the defendant in error lived in
bawdy house, with knowledge of its
character would. perhaps, have been ad-
Missile to establish the truth of the
plea, but without plea of justification
such proof was clearly inadmissible. See
IL Hum, 5O7, sos. In Bush VS.. Prosser,
ID Barb, 221, where the SANDER charged
the plaintiff with keeping house of ill
fame, it was held that ''evidence of I'M
chaste and lascivlous conduct of the plain
tiff's family, not establishing the offense,
is inadmissible for any purpose" and we
hold in this case that the plaintiffs action
cannot fail in consequence of the alleged
bad reputation of her family. But be-
cause of or er errors in the record, let
the judgment be reversed and the cause
rtmanded for a new trial.
NELSON, Judge.
A true copy.
F. c. DUNNINGToN, Clerk.