Bennett v. Hyde

Hosmer, Ch. J. The evidence in a cause must be confined to the points in issue ; and the character of either party cannot be enquired into, unless put in issue expressly, or by the nature of the proceeding itself. 1 Phill. Ev. 139. In this case, conformably to the established doctrine of our courts, the character of the plaintiff was in issue. It was the object of the defendant’s attack ; the injury to it is the gravamen complained of; and for the vindication of it, the present action was instituted. It was said, by Ch. J. Kent, in Foot v. Tracy, 1 Johns. Rep. 46. 52. “ The character of the plaintiff must be considered as coming in, at least collaterally, upon the trialand this Court, in Stow v. Converse, 4 Conn. Rep. 42. which was an action for a libel, declared, that " the plaintiff’s [27] character may be proved, because it is in issue.” The plaintiff’s character is not made the subject of enquiry, at the defendant’s option, and shut out of view, or the subject of investigation, as shall best subserve the defendant’s pleasure and interest. To a rule so inequitable, for the want of mutuality, the courts in this state have never acceded ; but they have recognized and acted on the principle, that the final object of the plaintiff’s suit, is the vindication of his character ; and that his reputation, of consequence, is put in issue, by the nature of the proceeding itself. The case of Rawson v. Hungerford, in Middlesex county, is not merely analogous with this, but goes beyond it; In an action for the breach of a promise of marriage, the character of the plaintiff was considered to be so far in issue as to authorize the reception of evidence, in opposition to the defendant’s objection,-not to sustain it from attack, but to prove its excellence It has been frequently adjudged, in this state, and maybe considered as established law, that the plaintiff in an action of slander, may prove the amount of the defendant’s property to aggravate damages ; and, on the other hand, that the defendant may recur to the same evidence for the purpose of mitigating them. The same rule is deducible from the law of Massachusetts, (Larned v. Buffington, 3 Mass. Rep. 546.) admitting evidence in proof of the plaintiff’s rank and condition, to increase the damages, or to lessen them, according as the facts should be found. It is not to be inferred, that the damages are, of course, to be proportioned to the defendant’s property ; but merely that property forms an item, which, in the estimate, is deserving of regard. Great wealth is generally attended with correspondent influence; and little influence is the usual concomitant of little property. The declarations of a man of fortune concerning the character of another, like a weapon thrown by a vigorous hand, will not fail to inflict a deeper wound than the same declarations made by a man of small estate, and, as a consequence not uncommon, of small influence. Property, therefore; may be, and often is, attended with the power of perpetrating great damage, and, in the estimate of a jury, becomes an interesting enquiry. I am not asserting what ought to be, but what is ; and that the degree of injury, necessarily, is dependent, in some measure, on the considerations before-mentioned. Whether the rule that the amount of the defendant’s property, in the action of slander, may be enquired into, originated solely from the principles al [28] luded to, or from those principles in combination with the justice and propriety of admitting somewhat of a penal sanction, in cases, in which the most atrocious calumny is not punishable in a criminal prosecution, I do not declare. But that such rule does exist, and has uniformly been recognized in our courts, is unquestionable ; and it is not the subject of regret, that the reputations of the innocent and estimable thus have an additional shield against the malice of the calumniator. The other Judges were of the same opinion. New trial not to be granted.