
    
      James McKenzie v. J. D. Allen.
    
    It is a well settled rule that, as evidence is to be confined to the point in issue, the character of either party cannot be inquired into, in a civil suit, unless it is put in issue by the nature of the proceeding itself.
    In an action of assault and battery, the defendant cannot give in evidence the bad character of the plaintiff, by way of excuse; but in mitigation of damages, he may give in evidence the conduct, and even character, of the plaintiff, when they form the provocation and inducement to the trespass.
    Where, in an action of assault and battery, the character of the plaintiff had been irregularly and strenuously urged in the argument of counsel, although there was no evidence on the point, the Circuit Judge properly noticed the fact in his instructions to the jury, that they might not be misled in determining the amount of damages.
    
      Before Frost, J. at Barnwell, Extra Term, 1848.
    This was an action of trespass for assault and battery.
    Two of the defendant’s servants had been taken up, under an ordinance of the village of Barnwell, for riotous behaviour on Sunday, and, with others, were about to be flogged at the market place, Monday morning, when the defendant came up — asked what they were whipped for; and said they should not be whipped ; that he would whip the marshall. Dr. Hagood told the marshall to go on. The defendant jirk-ed the boy from the marshall, who raised his fist or his whip. The defendant then looked at the ordinance, and declared himself satisfied. On the morning of the 17th July, about seven o’clock, the defendant rode into the village ; bought a wagon whip, and took a seat in the piazza of a drinking house, which the plaintiff passed on his way from his office to his boarding house. A good many persons were in the piazza, and a fight was expected between Allen and McKenzie. After a time, the plaintiff came along from his boarding house towards his office, when the defendant stept out of the piazza, and said, good morning, Mr. McKenzie, I understand you said you would imprison me. McKenzie asked who told him so. Allen said, Swan. McKenzie said Swan told a lie ; but he added that he said, if he had been a member of the Town Council he would have committed Allen, — alluding to what had occurred at the market place. Allen said to McKenzie, you don’t like me. McKenzie said, I can like or dislike as I please. Allen said, you must not talk about me. McKenzie replied, I will talk when I please, and can answer for it. The account of the conversation somewhat varies, as stated by different witnesses, but not materially, — thereupon, Allen struck McKenzie five or six blows with the whip. McKenzie, then, fell upon Allen with his fists, and struck several blows; when Allen drew a Bowie knife, which he had concealed under his dress, about fourteen to sixteen ches long, and struck a blow at McKenzie, which took effect on the side of his head, cutting the scalp. The parties were, then, separated.
    x phil Ev 176.
    A question was proposed, whether McKenzie was not of a quarrelsome, intermeddling character, which was overruled.
    In the course of the argument, the counsel, on both sides, commented on the character of the plaintiff; and the defendant’s counsel affirmed all that he had proposed to prove. In summing up the case to the jury, the character of the plaintiff was introduced as affecting the question of damages.—
    The course of the argument made such comments necessary.
    The jury found for the plaintiff, one thousand dollars damages.
    The defendant appealed and moved for a new trial, on the grounds:
    1. Because his Honor rejected testimony to prove that the plaintiff1 was an officious and intermeddling magistrate— which was material.
    2. Because his Honor rejected testimony to prove that plaintiff was a man of quarrelsome habits — which was material.
    3. Because his Honor charged that the character of the plaintiff, as a peaceable, orderly, moral, and conscientious man, ought to enter into the estimate of damages, although there was no evidence on that point.
    4. Because the damages are excessive.
    5. Because the verdict is contrary to evidence.
    6. Because the verdict is contrary to law.
    Bellinger, for the motion.
    Patterson, contra.
   Frost, J.

delivered the opinion of the.Court.

It is a well settled rule that, as evidence is to be confined to the point in issue, the character of either party cannot be enquired into, in a civil suit, unless it is put in issue by the nature of the proceeding itself. In actions for slander and seduction, it is so put in issue, and in some cases, where the question is one of mere property, the character of one of the parties may be directly involved in the issue ; and then, only, may it be the subject of evidence.

The character of the plaintiff is not, thus, put in issue in an action of assault and battery. If it may, in that action, be given in evidence, it may be forced into every action for damages. No distinction can exclude such evidence from trespass to real or personal property. It is not pertinent to prove the alleged injury. It can only be relevant to the question of damages. In trespass to real and personal property, circumstances of outrage are permitted to aggravate damages beyond actual loss. If the defendant can shew, in mitigation for beating the plaintiff, that he is quarrelsome and intermeddling, the same evidence would furnish a better pretext and extenuation for a trespass on his land, or beating his slave.

3 Bibb’s Rep 195.

3 McC. 66.

It is needless to cite authority to prove- that such evidence • is inadmissible in the latter cases. In Gives v. Bradly it was held that evidence of the plaintiff’s character is not admissible m an action for assault and battery.

The defendant may give in evidence, in mitigation of damages, the conduct, and even character, of the plaintiff, when they form the provocation and inducement to the trespass. This is as much as any case or dictum can be found to warrant. Rhodes v. Bunch is decisive of the question made in this case. It was an action of trespass, for pulling down a house, into which the plaintiff had intruded himself on the defendant’s land. Evidence was admitted that plaintiff had been suspected of being engaged in a negro conspiracy, and that he was a negro trader and vagabond, dangerous to the neighborhood. It was held, first, that the case was certainly one in which character ought not to have been allowed to be given in evidence. But it was sáid to be proper to permit facts and circumstances to be given in evidence, by way of mitigation, which were the inducements to a transaction, though they may involve character: as in assault and battery, though the defendant cannot give in evidence the bad character of the plaintiff, by way of excuse, yet he may prove that the defendant traduced his character, insulted his wife or daughter, or that he found defendant, in his enclosure, attempting to steal his goods, or exciting his negroes to insurrection ; or to prove any other fact to shew the motive which induced the act.

In this case it was proved that the defendant, with predetermined malice, had committed a violent battery on the plaintiff. The attack was made when the plaintiff was on his way from his lodgings to his office, unsuspecting and unprepared for violence ; near a drinking shop, in the piazza of which the defendant waited his opportunity; and in the view of its exulting inmates. Here, confident in the protection of his concealed bowie knife, the defendant fell upon the plaintiff with a wagon whip; and by the employment of these instruments of degradation and murder, betrayed the deep malignity of his purpose. What excuse or mitigation can be found for the defendant’s conduct in the fact, if it were true, that the plaintiff was a quarrelsome person, and an in-termeddling magistrate % He had never quarrelled with the defendant, nor intermeddled with him ; unless that the plaintiff expressed an opinion respecting the defendant’s conduct, at the market house, can be considered an intermeddling.— Evidence of this was admitted to shew what provocation the plaintiff had given to the defendant, which might extenuate his conduct. Evidence of the plaintiff’s character would have aided the defendant’s case, by throwing the weight of a presumption in the scale of doubtful evidence; for the battery was not disputed ; nor by affording any extenuation of his conduct; for it did not concern the defendant, however quarrelsome or intermeddling the plaintiff might be, if he did not molest the defendant. The evidence was, then, wholly immaterial and irrelevant to the issue, unless it be law (which cannot be shewn) that infirmities of temper, or injudicious zeal in the discharge of official duty, may extenuate, if not excuse, an assault and battery, however unprovoked and outrageous, on a magistrate or other public officer, which any evil disposed person may, in his wanton malignity, see proper to inflict.

Though the evidence respecting the plaintiff’s character, which the defendant offered, was excluded, yet the attorneys of each party strenuously urged the consideration of his character, according to their different representations of it, as material in determining the amount of damages. It was necessary that so exciting a topic, urged in the argument, though irregularly, should be noticed in the instructions to the jury, that they might not be misled. It is not a reasonable ground of complaint that when the defendant’s counsel, on the evidence of his own declarations, brought into the argument the effect of the plaintiff’s character, on the subject of damages, that the Judge, on the same evidence, should express his opinion to the jury.

The motion is dismissed.

Evans, J. — and Wakdlaw, J — concurred.

Motion refused,  