RYLAWD, J.
From the above statement, two points present themselves, for the adjudication of this courj. The first is the admission of the evidence of the defendant’s good character ; and the second, the refusal of the court to grant a new trial. If either of these points be ruled for the complainant, this case will have to be remanded.
It is a general rule that evidence of a general character is not admissible in civil suits ; but to this general rule there are many exceptions. Greenleaf in his treatise on Evidence, vol. 1, § 54, says : “In civil cases such evidence is not admitted unless the nature of the action involves the general character of the party, or goes directly to affect it. And generally in actions of toit, whenever the defendant is charged with fraud, from mere circumstances, evidence of his general good character, is admissible to repel it — so also in criminal prosecutions the charge of a rape, or an assault with intent to commit a rape, is considered as involving, not only the general character of the prosecutrix for chastity, but the particular fact of her previous criminal connexion with the prisoner. And in all cases where evidence is admitted, touching the general character of the party, it ought manifestly to have reference to the nature of the charge against him.”
There is no doubt, that in criminal prosecutions, the general good character of the defendant is legitimate evidence. Formerly, this kind of evidence was allowed to defendants in capital cases only; but this rule has been so much relaxed in modern practice as to admit such evidence generally in all criminal prosecutions.
The rules of evidence have their foundation in plain common sense. They were adopted as the means of eliciting the truth; of unfolding and bringing to light the facts connected and involved in the various transactions of life, which might become the subjects of judicial investigation; as well as to afford facilities to the legal inquirer, in his often obscure and difficult searches to find the motive and the will which prompt and produce such transactions. In the nature of things, it is impossible to establish and fix any number of uniform and general rules, which might not bear oppressively severe on some individual cases. Hence the great number of exceptions to be found to these general rules. I know of no situation, in which in a civil suit a defendant can be placed, where general good character can be of more importance to her, than in a proceeding for a divorce, upon the charge of infidelity to her husband.
The charge of adultery involves directly the character of the defendant. It partakes deeply of the nature of a criminal proceeding. It is highly penal in its effects. Convict the defendant of the charge, and the law deprives her of her property, of her children, of all that is dear to her, and turns her as an outcast upon the world, a miserable and degraded being. The only defense to such a charge, especially if it be false, may be her good, her spotless character ; deprive her of the right to offer that before the jury, and the consequence will be, that to charge and to convict, will be almost convertible terms. In the case of Gregory v. Thomas, 2 Bibb, 286, which was an action for a malicious prosecution, the defendant justified, by pleading what causes and grounds he had to prosecute the plaintiff; and on the trial, the Circuit Court permitted the defendant to prove any particular charge or imputation of theft of any kind, which had been committed by the plaintiff at any period of his life, though unconnected in circumstances with any matter of fact specially alleged in the pleadings. The court of appeals reversed the judgment, stating that the court below ought not to have permitted the inquiry to have extended further than the plaintiff’s general character. In the case of Humphrey v. Humphrey, 7 Conn. R. 116, which was a petition for a divorce, the cause assigned was the defendant’s adultery ; the court below admitted the defendant to give evidence of her general good character ; but the Supreme Court reversed the judgment [18] of the court below, for this reason, Judge Peters dissenting. Tliis decision of Humphrey v. Humphrey was afterwards cited by the Supreme Court of Alabama, see Ward & Thompson v. Herndon, 5 Porter, 382. In this last case, the court uses the language of Chief-Justice Tilghman, in the case of Anderson’s Ex’rs v. Long and others, 10 Serg. & Rawle, (31, as follows; “But putting-character in issue is a technical expression, and confined to certain actions, from the notice of which the character of the parties, or some of them, is of particular importance. But it never has been supposed that character is put in issue merely by the charge of fraud, made by one party against another.” In the above quotation from Chief-Justice Tilghman, I have no doubt the word “ notice” is put by mistake for “ nature.”
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RYLAWD, J.
From the above statement, two points present themselves, for the adjudication of this courj. The first is the admission of the evidence of the defendant’s good character ; and the second, the refusal of the court to grant a new trial. If either of these points be ruled for the complainant, this case will have to be remanded.
It is a general rule that evidence of a general character is not admissible in civil suits ; but to this general rule there are many exceptions. Greenleaf in his treatise on Evidence, vol. 1, § 54, says : “In civil cases such evidence is not admitted unless the nature of the action involves the general character of the party, or goes directly to affect it. And generally in actions of toit, whenever the defendant is charged with fraud, from mere circumstances, evidence of his general good character, is admissible to repel it — so also in criminal prosecutions the charge of a rape, or an assault with intent to commit a rape, is considered as involving, not only the general character of the prosecutrix for chastity, but the particular fact of her previous criminal connexion with the prisoner. And in all cases where evidence is admitted, touching the general character of the party, it ought manifestly to have reference to the nature of the charge against him.”
There is no doubt, that in criminal prosecutions, the general good character of the defendant is legitimate evidence. Formerly, this kind of evidence was allowed to defendants in capital cases only; but this rule has been so much relaxed in modern practice as to admit such evidence generally in all criminal prosecutions.
The rules of evidence have their foundation in plain common sense. They were adopted as the means of eliciting the truth; of unfolding and bringing to light the facts connected and involved in the various transactions of life, which might become the subjects of judicial investigation; as well as to afford facilities to the legal inquirer, in his often obscure and difficult searches to find the motive and the will which prompt and produce such transactions. In the nature of things, it is impossible to establish and fix any number of uniform and general rules, which might not bear oppressively severe on some individual cases. Hence the great number of exceptions to be found to these general rules. I know of no situation, in which in a civil suit a defendant can be placed, where general good character can be of more importance to her, than in a proceeding for a divorce, upon the charge of infidelity to her husband.
The charge of adultery involves directly the character of the defendant. It partakes deeply of the nature of a criminal proceeding. It is highly penal in its effects. Convict the defendant of the charge, and the law deprives her of her property, of her children, of all that is dear to her, and turns her as an outcast upon the world, a miserable and degraded being. The only defense to such a charge, especially if it be false, may be her good, her spotless character ; deprive her of the right to offer that before the jury, and the consequence will be, that to charge and to convict, will be almost convertible terms. In the case of Gregory v. Thomas, 2 Bibb, 286, which was an action for a malicious prosecution, the defendant justified, by pleading what causes and grounds he had to prosecute the plaintiff; and on the trial, the Circuit Court permitted the defendant to prove any particular charge or imputation of theft of any kind, which had been committed by the plaintiff at any period of his life, though unconnected in circumstances with any matter of fact specially alleged in the pleadings. The court of appeals reversed the judgment, stating that the court below ought not to have permitted the inquiry to have extended further than the plaintiff’s general character. In the case of Humphrey v. Humphrey, 7 Conn. R. 116, which was a petition for a divorce, the cause assigned was the defendant’s adultery ; the court below admitted the defendant to give evidence of her general good character ; but the Supreme Court reversed the judgment [18] of the court below, for this reason, Judge Peters dissenting. Tliis decision of Humphrey v. Humphrey was afterwards cited by the Supreme Court of Alabama, see Ward & Thompson v. Herndon, 5 Porter, 382. In this last case, the court uses the language of Chief-Justice Tilghman, in the case of Anderson’s Ex’rs v. Long and others, 10 Serg. & Rawle, (31, as follows; “But putting-character in issue is a technical expression, and confined to certain actions, from the notice of which the character of the parties, or some of them, is of particular importance. But it never has been supposed that character is put in issue merely by the charge of fraud, made by one party against another.” In the above quotation from Chief-Justice Tilghman, I have no doubt the word “ notice” is put by mistake for “ nature.”
In actions of erim. con., slander, malicious prosecution, the general character is given in evidence, in order to enable the jury to place a proper estimate thereon, in damages in dollars and cents. In cases like the one now before the court, although the jury do not assess damages, yet, by their verdict, they can affect the character of the defendant, in a most important manner. Their verdict does not estimate, docs not value the character ; but it may strip it of all that is dear and leave it a blighted withered object, for “ bitter scorn and lasting infamy.” This doctrine is tinctured with that absurdity, which teaches us to take care of the shadow, however, we neglect the substance. Viewing this proceeding, therefore, as a pure and unmixed civil one, I am satisfied, that every consideration, every inducement, which have heretofore permitted evidence of general character, to he given in cases of wim. con., slander, malicious prosecution, should permit the same evidence in a petition or bill for a divorce, where the charge is adultery. But I am warranted by authority in considering this case as partaking of the nature of a criminal proceeding. The Supreme Court of Pennsylvania, in the case of Ganat v. Ganat, which was a libel for a divorce, 4 Yeates, 244, treats the proceeding as a criminal one': and Chief-Justice Gibbon, in the caso of Matchin v. Matchin, 6 Bars. R. 336, says “ a libel for a divorce is said to partake of the nature of a criminal proceeding.” I am free to declare, therefore, upon a full consideration of the cases and authorities cited, that evidence of general good character, in a proceeding by petition, or bill in chancery, charging- the defendant with the crime of adultery, should be admitted by the courts of this State. Such evidence comes fully; and completely within the exception above cited from Greenleaf. By permitting the defendant to give proof of general good character for chastity, the complainant cannot be injured. He has the privilege of rebutting, by the same kind of evidence ; hut deprive the defendant of this privilege, and irreparable injury will follow. Let us look at the consequences which may result from the doctrine contended for by the complainant’s counsel. A virtuous woman may be falsely charged, and the same villainy which could fabricate the charge, could accompany it with such “mode and circumstance ” as to leave the defendant no power, from extraneous circumstances, to disprove it. She must rely upon her good name : her only hope of safety, is in that homage which the wise and good invariably and involuntarily pay to virtue under suffering and misfortune. I am unwilling to aid or assist in depriving her of this humble privilege, which is allowed to the defendant, in a criminal prosecution for petit larceny. I find no error therefore on this point.
I will now consider the second point, the overruling- the motion for a new trial. By the statute concerning. Practice at Law, art. 7, § 3, only one new trial shall he allowed to either party, except, first, “ where the triers of the fact shall have erred in a matter of law": ” secondly, “where the jury shall he guilty of misbehavior.”
By the statute concerning Practice in Chancery, art. 8, § 9, “ the court may award a new trial of any issue upon good cause shown, but not more than one new trial of the same issue shall he granted to any one party.” From the great resemblance these statues hear to each other, on the subject of new trials of issues, I am inclined to think that the practice of this court should he the same, as regards them. In appeals from the decisions of the Circuit Courts iu chancery cases, this court examines all the evidence, looks into the facts of the ase and makes such an order and decree as we think the court below should [19] have made. But iu the cases where issues of fact have been made up, under the direction of the Chancellor, and tried between the parties, we look upon the finding of the jury, upon such issues, as verdicts at common law ; and when the Chancellor, before whom these issues have been tried, upon motion, refuses to have them tried anew, by setting aside the first finding, I must see a clear and obvious case of improper finding by the triers, or of misdirection by the court, before Twill interfere. In this case, now before the court, I am. unable to see any good reason, why this court should depart from its former course of practice and decision in regard to new trials after verdict of the jury at common law. Here were issues of fact made up and tried before a jury, under the eye of the Chancellor. A motion was made to grant a new trial, the Chancellor overruled it, thereby declaring his satisfaction with the finding of the jury ; at the same time negativing the idea that there was, in his estimation good cause for his interference with such finding. This court is not called on to say whether it would have found the same verdict or not — whether it is satisfied with the verdict or not. The jury was the proper tribunal to try the issues.(