I refer to the president’s opinion, for the reasons which induce me to think that the court below committed no error in receiving evidence of f t^tion^t the surf for the purpose of proving malice ; / and'hoite ir$fA«?Sfying the entry which had been prek vjevj^l^m^jjie^ofjthe verdict and judgment. The re:-^asal of the cnirft to permit the witness to prove the general./aÜ9!8.cter of the plaintiff, stands, as I think, on a different footing. It may be, that in actions for slanders charging professional negligence or incompetence, or for words imputing no moral delinquency, and in other similar cases, the evidence of the plaintiff’s general bad character might be properly rejected, as irrelevant to the issue, and as having no bearing upon the question of the amount of damages. About this, I wish to be understood as expressing no opinion. The defamatory words for which this action is brought, import a direct attack upon moral character; and in such case, surely the man of unblemished reputation *343is entitled to greater damages than one whose character is already so bad 'as to receive little or no detriment from the imputed slander. This question was much considered in the case of M'Nutt v. Young, 8 Leigh 542. The point there decided was, that evidence of the general character of the plaintiff in relation to the charge stated in the declaration, ought to have been admitted in mitigation of the damages. That was the precise point presented by the bill of exceptions, and the court of course confined itself to that; but the reasoning of the judges for coming to that conclusion, fully justifies the reception of evidence of the plaintiff’s bad character at large. Indeed it has been seriously doubted, by those who agreed that general character may form the subject of examination, whether to confine the enquiry to the particular character of the party in the capacity in which he has been libelled, would not be infringing the rule that the truth of the words cannot be given in evidence under the general issue. See justice Thompson's opinion in the case of Fa Johns. Rep. 46. In the opinion of^u^fripBrsonsi enquiry ought to be confined to genera as this court, by a decision of all the tied that question, we cannot, I thinlk h|sjt|^ ig jpjr judgment upon the case at bar. .

It cannot be denied that in an action tor fllf'ii^Try to reputation, the character of the prosecutor is of some importance in estimating damages. The defendant cannot plead the blemished character of the plaintiff, and for that very reason he ought to be allowed to give it in evidence in mitigation of damages ; for it is a settled rule, as was shewn in the case of M'Nutt v. Young, that where a party cannot take advantage of special matter bearing upon the measure of damages, by pleading, he may give it in evidence under the general issue. Otherwise there is no mode by which he can avail himself of a fact which, it must be conceded, ought to have *344a material influence upon the quantum of damages. That some inconveniences may result from this practice, and even danger occur of occasional injustice,1 may readily be admitted; but upon the whole, it is required by the general principle which admits in evidence matters relevant to the cause, and is necessary in a great majority of cases to guide the discretion of the jury, who, without such evidence, will take general character into their estimate, grounded upon their own knowledge, or upon vague and delusive rumours.

There is no great hardship in holding that a plaintiff suing for his character should come prepared to defend it from general attacks. If a witness impugns it, he has a right to call on him to specify the grounds of his opinion ; and if, on that crossexamination, it should appear that the opinion was founded on his anti-abolitionism, or his want of chastity, or his intemperate use of spirits, or his fondness for cards, or his addiction to any other vice which a jury might consider venial, they would know how to estimate it.

All the authorities on this subject were cited and commented on in the case of M'Nutt v. Young, and it is unnecessary to examine them farther. That case, in my opinion, substantially decides this, and convicts the court below of error in rejecting the testimony of general character offered by the defendant. A fortiori, I think the court erred in refusing it upon the crossexamination. The plaintiff himself had introduced the witness to prove his own general character, and had asked him what was his the plaintiff’s character, when on oath and when not on oath, as a man of truth? The witness answered favourably to him, and then the defendant desired to.crossexamine him on the subject of general character. This crossexamination ought, in my opinion, to have been allowed, for the purpose (if for no other) of enabling the jury to eslimate what credit was due to the witness’s opinion of good character *345in one particular, by comparing it with his character in general. Had the witness answered that his general character was infamous, surely the jury would not have attached much weight to the favourable report he made of his character as a man of truth. • But it is unnecessary to enlarge on this ground.

concurred in the opinion that the judgment should be reversed for the error commented on by Parlcer, J.

Upon the question presented first in the bill of exceptions, I was inclined to differ with the court below, believing that the effect of the decision was to give the plaintiff damages indirectly for a slander which was barred by the statute of limitations. I am persuaded upon reflection, that my first impression was incorrect.

However questionable the practice may seem, to permit the introduction of evidence of words spoken at a different time, in order to prove malice in speaking those charged in the declaration, it seems now too firmly established to be shaken. Though there is some contrariety of opinion as to the admissibility of distinct slanderous matter subsequent to that charged in the declaration, yet I think the weight of authority, as well as the universal practice of the courts, recognizes the right of the plaintiff, after proving the words laid, to go on to prove the speaking of the same or the like words at any time antecedent. I have met with no case in which that right is denied. The admissibility of the proof of the repetition of the same slander at various times, seems to be conceded in all the cases, as the stress of the argument in them has always.turned upon the fact that the words were subsequently spoken. Rustell v. Macquister, 1 Camp. 49. note. Macleod v. Wakley, 3 Carr. & Payne 311. 14 Eng. C. L. Rep. 322. Tate v. *346Humphrey, 2 Camp. 73. note, and Bodwell v. Swan et ux’ 3 Pick. 376. are cases in which subsequent sianders were admitted for the purpose of shewing malice. The case of Mead v. Daubigny, Peake’s Cas. 125. decided by lord Kenyon, is contra: but lord Kenyon himself decided differently in Lee v. Huson, Peake’s Cas. 166. In Finnerty v. Tipper, 2 Camp. 72. chief justice Mansfield seemed inclined to modify the rule, though it would appear that he approved the decisions. But his opinion also refers to subsequent words, and therefore does not touch the question of the antecedent speaking of the same words. I take it, then, that such proof is clearly admissible.

But it is said, that where the speaking of the words attempted to be given in evidence was more than a year anterior to the trial, an action for them is barred by the statute, and that as the proof of them would tend to inflame the minds of the jury and to increase the damages, the plaintiff will indirectly recover damages for a wrong, for which the action is gone forever. This argument is very plausible, but I think it unsound. The evidence is introduced solely to prove the deep-seated malice with which the last words were spoken, and is permitted to go to the jury with that qualification ; Rustell v. Macquister, 1 Camp. 49. note. With that qualification, there can be no objection to admitting proof of the antecedent' speaking of the same words, although the action for them is barred. For I apprehend, even if the plaintiff had sued for them and recovered damages for them, the proof of that fact would be good evidence in an action for repetition of the same slander. Is it not obviously a gross aggravation of a subsequent slander—is it not strong evidence of the most deeprooted malignity, that even the conviction and the punishment of the slanderer has worked no reformation in his conduct, and has been unavailing to arrrest the foul current of his abuse ? Is it not a reason for increasing the penalty of this new transgres*347sion, repeated after he has had an opportunity of justifying his accusations, and has shrunk from or has failed in the attempt? I cannot doubt it. Yet who ever thought of rejecting the proof of the fact, because the plaintiff had already recovered damages for the first slander, and cannot refer to it to increase the damages for the second ? So in this case, though no action has been brought for the first slander, is it not an aggravation of the last, that it is repeated ? .When the plaintiff, in a spirit of forbearance, has waived his right of action for the first slander, either perhaps because it was uttered in a moment of heat, or that he felt an innate consciousness that he would live down the calumny by the correctness of his life, is it no aggravation of a repetition of the slander, that the defendant, regardless of his forbearance, will not let him live in peace,? Admit that no damages whatever are allowed for the first slander, is not here ample ground for increasing the damages for the second ? I think there is, and am therefore of opinion that the testimony was properly admitted.

On the second question, I was inclined to think that the enquiry as to general character should be confined to the particular matter which is the subject of the' charge. But my brethren think differently, and I willingly defer to their opinion.

As to the third point, there being no exception, I must presume every thing right. I have no doubt, enough matter appeared to the judge of the court below to authorize his newmodelling the entry, and I must take it for granted that it did so appear, as the contrary is not shewn by an exception.

There being, however, in the opinion of a majority of the court, error in the refusal to permit an enquiry as to the plaintiff’s general character, the judgment must for that cause be reversed.

Judgment reversed.