McCabe v. Platter

Blackford, J.

Emily Platter brought an action against John Me Cabe and Margaret his wife, for slanderous words spoken by the wife, charging the plaintiff with fornication and adultery. Pleas, 1, Not guilty; 2, That the words were true. Verdict and judgment for the plaintiff.

The defendants, on the trial, offered to prove the general character of the plaintiff as to chastity to be bad; the evidence was objected to, and the objection sustained. The objection' should have been overruled. The evidence was admissible in mitigation of damages, notwithstanding the plea of justification. Kirkman v. Oxley, cited in 2 Stark. Ev., 306, note; McNutt v. Young, 8 Leigh, 542 . These cases are in point; and the same opinion is intimated in Sanders v. Johnson, Nov. term, 1841.

After the defendants had closed their testimony—they having given no evidence to impeach the plaintiff’s character,— the plaintiff offered to prove her general character to be good; the defendants objected to the evidence; but the objection was *435 overruled. Had the general issue alone been pleaded, the evidence would have been clearly inadmissible; and we are of opinion that the mere fact that there is a plea of justification, ought not to make any difference. We consider the law to be, that the plaintiff, in a case like the present, can not give evidence in support of his character, until the defendant *has attempted, by evidence, to impeach it. It is decided in Cornwall v. Richardson, 1 Ryan & Moody, 305, that such evidence is not admissible for the plaintiff, whether there be a plea of justification or not. The objection in question should, therefore, have been sustained.

J. Dumont, for the plaintiffs. W. Lyle, for the defendant.

Per Curiam.—The judgment is reversed with costs. Cause remanded, &c.