
    A. S. Rhodes vs. Lydia Bunch, et. al.
    
    Til an action of trespass quare clausumfr'egilllie plaintiff must'recover either upon his possession or his title.
    Facts and circumstances, may. be given in evidence, by way of mitigation, ■which were the inducements to a transaction; even though they may happen to involve character.
    So in trespass clausum fregit, in mitigation, defendant may prove the land - to be his, arid that the plaintiff had’obtruded himselfinto the possession o’f his land;'that -he was a Vagabond, and thatdie had obtruded himself into• ■ the place for the purpose of.preying upon the neighborhood, and trading with their slaves.
    ■ This was ail .action ol trespass m et armis, tried at Charleston, before Mr. Justice Huger. It appeared ‘that the plaintiff got possession of a small house in the neighborhood, of the defendants, near Monk’s Corner; that the'defendants were disposed to get.rid of him, believing that he was dealing with their negroes and was a troublesome neighbor. To effect this, they issued a distress warrant, whilst the plaintiff was from home, and seized upon such articles as were in the house, which were very'few and of little value, being such as were suitable only- for the lowest retail grog shop, worth about $5 or $10» The defendants thought they had a right to issue this warrant, as they were the owners of the place. On plaintiffs return home, he found .the'defendants in possession of the house.. He applied:-for-a writ of replevin but before it was served, he received back from, the defendants all his goods, in as perfect a state as‘lie left them. He had been out of possession only four days.' On this replevin suit, the jury found a verdict for the defendants. And.this action was now for the trespass. The facts were proved as stated .above. Besides evidence was given, that the house was pulled down by the defendants, whose property it was.. The liouse was of no great value. .The plaintiffpaid. tax. for. no property whatever. He had gone into this house about 18 months before this. The tax for the premises were paid by defendants. The plaintiff had been committed to. jail in Charleston for having been engaged - in the insurrection there, a year or two before -that. The house was pulled down at the request of the defendant,-by defendant-and the-neighbors, who had ;been invited there for the -purpose. The plaintiff was not present at the time.. He had moved off his articles, about 200 3'ards. Defendant had taken the possession, and.destrained some time previous to this. When the house was pulled down, nothing was in it. Defendant had taken quiet possession of it before. The object-in pulling down the house was to prevent plaintiff, Rhodes,' getting possession again, and to expel him thereby from the neighborhood; .as he was trading illicitly with tlie.negroes.. .The plaintiff was regarded as a nuisance in the parish, and a great vagabond, with whom no white man associated, and who cultivated no land, and owned no-other property, than as stated above, .winch were- only fit for- negro.trading. When plaintiff received back, his,goods, ,he made no complaint, and did not pretend to claim property in the land... , •
    The plaintiff,-, on .the other hand,' made some pretended claim to the land; he had -been, put .into possession by one Burney, who had had possession of .the land in 1813, as trustee for his child, and who built the. house and lived in it for, eighteen months.. It was not proved when plaintiff was put into possession. Plaintiff’s own witnesses proved that the • land was reputed to be defendant’s; and that the plaintiff , had been an - inmate of the Charleston gaol for seven or eight years, the greater part of the time for perjury.
    Mr. While, for the plaintiff,:objected to this,evidence, but was overruled. ’ .
    His honor, Judge Huger, told the jury, that lie was disposed to think that the plaintiff had been in possession, and had been illegally turned out, and that I16 was entitled toa verdict) but, that he was not entitled, in'liis opinion, to more than a cent; and of that they were to judge. He also observed,.
    ' that if he had been in the situation of the defendants, he should have done as they'had done, and trusted, as the defendants were thén doing, to the good sense of a jury of his country to assess the damages.
    The jury found a verdict for the plaintiff for one cent.
    
    •The grounds for a new trial were:
    1st. Because-the presiding judge permitted the plaintiff’s bad character to be given in evidence, to mitigate the damages.
    2nd. Because the judge erred in his instructions to the jury, with regard to the amount of damages which they ought to give,
    
      J. B. White, fof motion.*
    In an action of trespass for-pulling down a hóuse, the character of the plaintiff cannot be given in evidence. The devil himself has rights; and the Jaw will give him his due,
    
      Hunt, contra.
    The question of the possession of the plaintiff was doubtful. The land belonged to the defendants. It was altogether a question for the jury. Character incidentally proved in shewing the plaintiff’s occupation, asa measure of damages, which was correct.
    
      ■ Clarice, in ' reply
    Where improper evidence is, allowed, the court will grant' a new' triai. They cannot say what effect it produced with the jury. The evidence of character, in this case therefore was improper. (PhiU. Ev. 145.) The rightful possession was'proved in the plaintiff; which is sufficient to maintain the action.
   Nott, J.

Before I go into" a consideration of the grounds-taken in the brief, I would observe, that this is an action, of trespass, quare clausumfreg.it, in which .the plaintiff must recover either upon his possession or his title. He has not even stated a .possession in his declaration, nor given any evidence of title. On the contrary, .it was proved that he had actually left the place,' and that the defendant was in peaceable possession, before the alleged trespass was committed. That came out from the plaintiffs own witness on his direct examination. The plaintiff did not pretend to set up any title. On the contrary, the- defendant shewed a good title in himself. It might perhaps have been irregular, according to the practice of our courts, to allow the defendants to give evidence of title under the general issue; but it was offered without objection-and is now before us, and we see that- the plaintiff had no right. The verdict ought therefore to have been for the defendant; and if the plaintiff was not entitled to a verdict on his own evidence, he cannot entitle himself to a new trial, on the ground that the damages are inadequate, even though illegal evidence was offered in mitigation.

But let us now examine -the testimony and see if the objection is-well founded?

It certainly was a case iirwhich charactrr ought not to have been allowed to be given in evidence. But it is often permitted to give facts and circumstances in evidence by-way of mitigation, which were the inducements to a transaction, even though they may happen to involve character. • Thus in'an action of assault and battery, though the defendant cannot give in evidence the bad character of the plaintiff, by way .of excuse, he may prove that lie has traduced his character, had insulted his- wife or daughter, or that he had found him within his enclosure, attempting to steal-his goods orto excite his negroes to insurrection;-or any other fact to shew the motive which induced the act. So in this case the evidence went to show that the title and possession of the land were in the. defendant; that the plaintiff was a-perfect vaga** bond, having no fixed place of residence;, that he had-obtruw ded himselfinto the possession of this place, not for the purpose of cultivating the soil, but for the sole purpose of preying upon the neighborhood,, trading with their negroes and . engaging in every kind of licentiousness. . Indeed, he was . considered so great a nuisance, that it became necessary for the preservation, of the peace and protectiomof the morals off the neighborhood that he should be banished from, their society. The defendant, - therefore, with, .come-of the rest of his.. neighbors, availed himself of an opportunity, when the plain-till’had left-his "retreat, to enter and demolish the house, to-; prevent him from returning to it again.

And what injury has he sustained?

His person has not been violated, nor his property inva---ded. The defendant has pulled down his own house, rather than tlie neighbourhood should be infested with such a nub ■ sanee.

The testimony, therefore, was such as was well calcula-* ted *to give the jury a correct view of the transaction and to* enable them to form a just estimate of the merits of the case; and if it happened to involve the character of the plaintiff, it was his own fault and not the fault of the court or of the law.

With regard to the instructions of the court to the jury, I do not-know what judge could have-refrained from expressing himself to the. same effect. It was. nothing more than expressing his approbation of the virtuous indignation, mani-r Tested by an injured community, against the disturber of their peace and the corrupter of their morals. And although toen are not to be encouraged in taking the law into their own hands, either-to obtain satisfaction for a private injury, or to redress a public wrong, yet the law will excuse when h cannot justify, and mitigate when it cannot excuse, if the trans-, action has proceeded from a proper motive, and the injury, to the party complaining is not greater than he deserved..

In the present case, I do not perceive that the plaintiff "lias sustained any real injury; and there was nothing in the 'transaction which entitled him to vindictive damages. Í •think, therefore, that he has received the full measure of the damages to which he was entitled.

The motion must be refused.

Clarke and While, for the motion.

Hunt, contra.  