
    William P. Simpson and others v. Ira McCaffrey.
    It will not justify searching a man’s house that one has been arrested there, having in his possession counterfeit paper.
    Existence on the premises of guilty implements, or evidences of crime, will warrant a search, but if not found there, the justification fails.
    Circumstances of reasonable suspicion may be proved in mitigation.
    Error to the common pleas of Belmont county.
    The case, appearing from the record, is this:
    ^McCaffrey brought an action of trespass against Simpson and the other plaintiffs in error, before a justice of tho peace, “for illegally entering and searching plaintiff’s house, tearing up porch, ransacking house, and breaking open desk, without legal authority.”
    The case was tried to a jury upon the plea of not guilty.
    On the trial the following bill of exceptions was taken:
    “Be it .remembered that, upon the trial of this cause, the said •defendants, to maintain the issue by them pleaded, and tt> justify the supposed trespass, and mitigate the damages, having offered testimony tending to prove to the jury that they were engaged, at .the time of the supposed trespass, in search of counterfeit bank bills, believed to have been concealed by one Jesse M. Holliday in the-house, and on the premises of the said plaintiff, and that Caleb E„ Boothe, a constable, was present with a state warrant for the arrest of the said Holliday, and had arrested said Holliday for having in his-possession counterfeit bank bills, and that he, after the arrest of the said Holliday, and without a search warrant, aided in the-search of the house, and the same was reputed a public house. That the plaintiff had offered evidence tending to prove that defendant, Simpson, said before, and whilst engaged in the search-aforesaid, that the object in making search was to find the money of which he was robbed in October last, as well as counterfeit money supposed to have been in the possession of said Holliday. The defendant then offered to prove, in justification of said-supposed trespass, and in mitigation of damages, that the house-of tbe plaintiff, in which the search was made, was a house of ill-fame, aud notorious as a harbor of felons, counterfeiters, gamblers, and dissipation, and thus afforded a reasonable ground for the defendants to suspiect that the said Jesse M. Holliday, being then there, had there concealed said counterfeit paper; whereupon said plaintiff objected to the admission of said testimony, which objection was sustained by the justice, and said testimony rejected ; to which opinion and decision of the justice of the peace, the defendants excepted, and prayed that their bill of exceptions, in this behalf, might be ^allowed, which was accordingly done, and on their motion, the same was ordered, and made a part of the record in the ease.”
    The justice was asked to charge the jury upon the law of the case, which he refused to do.
    A verdict, and judgment for $15 and costs, was rendered in favor of McCaffrey, which was afterward affirmed on certiorari by the court of common pleas.
    To reverse the judgment this writ of error is brought.
    Numerous errors were assigned upon the transcript, which were in substance:
    1. That evidence was improperly excluded.
    2. That the justice refused to givo the law in charge to the-jury.
    
      3. That the transcript did not show that the jury who tried the •case were “good and lawful men, citizens of the township.”
    Joseph A. Ramage, for defendant in error:
    The questions reserved for decision in this cause arise solely on the bill of exceptions taken and made part of the record, on tho trial before the justice. It seems to be a settled principle that “ the bill of exceptions should set out the particular matter relied •upon, or a court of error will not notice it.” Hare v. Harrington, Wright, 290. Does the'bill of exceptions, in this caso, set out the particular-matter relied upon? The counsel for tho plaintiffs in ■certiorari claim that tho object of the testimony offered by the defendants below, and ruled out by the justice, was: “1. To show that the search was not wanton, but reasonable and bona fide; done, not with the intention of injuring the plaintiff, but for the advancement of public justice. 2. To show that the character of the plaintiff, and his bouse, was not injured by the search under those circumstances.” To these two points all the authorities are •cited, and the arguments of counsel made. It is very clear (without admitting the force of the authorities to the extent claimed, or their application to ^actions of trespass to property), that the particular matter first relied upon, and which it is claimed the ■testimony ruled out would have established, is not disclosed in the bill of exceptions taken in this cause, but e converso. The bill of •exceptions shows that both the defendants aad plaintiff below, ■offered testimony to prove the purpose, manner, and circumstances of the alleged trespass. From the facts thus set out in the bill of exceptions, it is manifest that the character of said search, the purposes, and circumstances under which it was made, were given in evidence to the jury, “ and thus the conduct of the defendants was” not “presented unmitigated, unjustified and unexplained to the jury.”
    The testimony, ruled out by the justice, upon which the bill of exceptions was taken, and on which the principal questions arise, is set out as follows : “ The defendants then offerod to prove, in justification of said supposed trespass, and in mitigation of damages, that tho house in which the search was made, was a house of ill-fame, and notorious as a harbor of felons, countei’feiters, gamblex’S, and dissipation, and thus afforded a reasonable ground lor the defendants to suspect that the said Jesse M. Holliday, being then there, had there concealed said counterfeit paper.” Did tho ■court of common pleas err in refusing to reverse the judgment of the justico in rejecting said testimony?
    It seems to me, in any light the question can be considered, that the court of common pleas could not have arrived at any other opinion. It does not appear that any witness was then being examined, or that any question was asked a witness, which was objected to, and ruled out by the justice. The bill of exceptions shows a mass of testimony proposed by the defendants below, for two separate and distinct objects: First, in justification of ■supposed trespass ; and, second, in mitigation of damages. Now it is clear, if this mass of testimony was all legal, and competent in mitigation of damages, and illegal and improper, in justification ■of the trespass, the testimony was properly rejected, for it was offered for both purposes. That the testimony offered was not admissible, in justification *of the trespass in this case, need not be argued. The action, in this case, was brought to recover damages “for entering and searching plaintiff’s house, tearing up porch, and breaking open desk, without legal authority.” Is the house, the protected castle of the citizen, to be searched, torn to pieces, the personal property therein broken and destroyed, and the act to be justified by proof that the house was notorious as a place of dissipation, drunkenness, or any other crime? Surely such a principle would not be admitted by any respectable jurist in the civilized world.
    But was this mass of rejected testimony legal and competent, in mitigation of damages, on the trial below? It may have been competent in mitigation, to prove that the house of the plaintiff was a house notorious as a harbor for counterfeiters — the trespass complained of having been committed immediately after the arrest of Holliday, on a state warrant, for having in his possession counterfeit bank bills, and thereby afford reasonable ground for the defendants to suppose that said Holliday had there concealed ■the said counterfeit paper.
    But would the fact, that the house was a house of ill-fame, of dissipation, afford reasonable ground for the trespass, and make •such testimony material in mitigation of damages? As well might the delendants below have offered to prove, in mitigation, that the house was a haunted house, and notorious as a harbor for witches, wizards, and ghosts. The principle of law is well settled, in the case oí Reab v. McAlister, 8 Wend. 109. “ Where a general objection is made to the decision of a court on the trial of a cause, and, on review thereof, the decision, if objectionable at all, is so-only in part, the party is not allowed to avail himself of the objection, for the want of precision in stating it at the trial.” The same doctrine is recognized in 4 Wend. 483; and, in Beebee v. Bull, 12 Wend. 504, the court held that “an exception to the whole of the testimony of a witness, when part thereof is unexceptionable, is unavailable from th e generality of the exceptions.” • In this case-the mass of testimony, ruled out by the justice, was wholly improper for one object for which it was offered; and little, if any, of said ^testimony was admissible for any purpose in the, defense of the case. But it is claimed by the plaintiffs, in certi< orari, that this mass of testimony, ruled out by the justice, was-proper and competent to show “ that the character of the plaintiff below, and his house, was not injured by the search.” ■ The character of the plaintiff below and his house was not in issue, and no evidence was offered to sustain it. This was an action of trespass to property. The cases cited by counsel for plaintiffs, in certiorari in trespass, are chiefly cases of trespass to the person. The rule of law, I apprehend, in the two classes of cases will be found very different. It is easily perceived that, in actions of trespass or tort to the person, “the reputation, circumstances, degree, etc., of the person injured, as well as the person who did the injury, may be, and generally are, considered by the jury in giving damages.” And the case of Tillotson v. Cheetham, 3 Johns. 55, referred to by the counsel for plaintiffs, was an action for a libel, and the words used by C. J. Kent, were quoted from Lord Camden, in 2 Willes, and expressly refer to cases of criminal conversation, battery, imprisonment, slander, etc. And, in the case of Bracegirdle v. Oxford, cited in 3 Starkie’s Ev. 1452, “ the declaration was for breaking and entering the plaintiff’s house, and without any probable cause, and under a false and unfounded charge and assertion that the plaintiff had stolen property in her house,” etc.
    The court informed the jury that, if there was a charge of stolen goods in the house, the damages ought not to be merely nominal; and, on motion for a new trial, Lord Ellenborough held the breaking and entering the plaintiff’s house, and under the false charge, constituted the trespass; and the false charge was not left for a distinct, substantive ground of damages. In the-case mentioned there is no allegation in the declaration of any injury dono to the house or property, but that the plaintiff was interrupted, in the quiet enjoyment of' her house, and her character injured. But in actions of trespass quare clausum fregit, and in actions of trespass to personal property, where the gist of the action is the injury done to the property, and no consequential damage laid in aggravation, I apprehend the character *of the plaintiff is not in issue, and can not be given, either in aggravation or mitigation of damages. In the case of Davenport v. Russell, 5 Day, 145, it is decided that in trespass for breaking and entering the plaintiff’s house, with intent to ravish the plaintiff’s wife, it was held the defendant can not give evidence that the plaintiff’s wife was, at the time of the trespass, of lewd and abandoned character.
    Two other causes of error are assigned, which do not arise on the bill of exceptions. One is, that “the record does not show that the jury were good and lawful men, citizens of the township.” The act allowing juries before justices defines their qualifications, and points out the manner in which the panel shall be made out by the justice, from which panel the parties,, or their attorneys, strike out, alternately, six names each, and a venire issues for the remaining six. The record in this case shows that this was done. The'law makes it the duty of the justice to write the panel, and the justice is presumed, in law, to do his duty. The same may be said in actions of forcible entry and detainer, and upon the trial of the right of property levied upon by a sheriff. The statute in both cases requires certain qualifications for jurors, and the sheriff or justice, who is required bylaw to summon the jury, is presumed to summon qualified men ; and the qualifications required by the statute need not be set out in the proceedings of the case. This court has decided, 3 Ohio, 227, that the same attention to regularity and form is not required of justices, which has been considered necessary in the proceedings of courts of record.
    The remaining question is, “ that the justice did not, though requested, charge the jury respecting the law of the caso.” It is a well-settled principle of law, that the court of common pleas, much less a justice of the peace; is not bound to charge the jury, generally, respecting the law of the case. 6 Wend. 268; 5 Cow. 243. In the case under consideration, the record does not show that the justice was asked to charge the jury on any particular point of law. Not only on this point, but throughout the entire argument for plaintiffs in certiorari, *the counsel seek to draw the attention of the court from the questions arising on the bill of exceptions and the record, and unblushingly expect, and seem to demand, a decision upon the mere assumption of facts, not appearing on the record ; and, like true zealots in a cause, they are lavish in praise of their clients, and condemn, without stint, the plaintiff below, the justice, and all others concerned, excepting these “faithful citizens,” the plaintiffs in certiorari. I am well aware that these assumptions of counsel, on the one hand, and their insinuations on the other, have nothing to do with the questions properly arising in this case.
    , It seems to me, therefore, from all the consideration I have been able to give the questions arising on the bill of exceptions and on the record, and none other should be considered, that the court of common pleas did not err in sustaining the decision of the justice, on the trial below.
    John O. Tidball and William Kennon, Jr., for plaintiffs in error:
    The object of the testimony offered was to justify the supposed trespass, or to mitigate damages. In this effort, it was the object of the defendants:
    1. To show that th'e search was not wanton, but reasonable and bona fide; done not with the intention of injuring the plaintiff, but for the advancement of public justice.
    2. That the character of the plaintiff and his house was not injured by the search, under the circumstances.
    The first question arising is: Was it proper to introduce evidence for that purpose? 2. Did the evidence proposed to be introduced, and which was excluded, tend to prove these facts, and thereby mitigate damages ?
    1. Was it proper to admit evidence to prove that the defendants were bona fide searching for counterfeit paper — that it was no pretense, but real, and the character of the plaintiff or his house did not suffer by the search ?
    *In actions of trespass or tort, anything showing malice, or the want of it, may be offered to aggravate or mitigate damages, and “the reputation, circumstances, degree, quality, trade, and profession of the person injured, as well as of the person who did the injury, must be, and generally are, considered by the jury in giving damages.” This principle is not only recognized, but strongly urged by O. J. Kent, in the case of Tillotson v. Cheetham, 3 Johns. 55. So also Spencer, J., in the same case, uses this language: “It is, in my conception, evidently unjust that a fact should be suppressed and withholden from the jury, which would and ought to lessen the damages.” .
    The same principle is incorporated with the elementary rules of evidence in cases of trespass, 3 Stark. Ev. 1452, where the case of Bracegirdle v. Oxford, 2 M. & S. 77, is cited to show that though in the action of trespass an injury to character can not be a substantive charge, yet it may be introduced to aggravate damages.
    This case is very analogous to the ease at bar; yet in that case the falseness of the charge of having stolen goods in her house, was not only allowed to be given in evidence by the plaintiff, to show the injury done to her character, but was required to be considered as an aggravation of the damages, because it injured the character of the plaintiff. If the rule be that the plaintiff may offer such evidence to aggravate damages — to be just it should be mutual, and allow the defendant to offer contrary evidence to mitigate damages.
    The same rule is observed in the case of Merest v. Harvey, 5 Taunt. 442. It thus seems to the counsel for the plaintiffs in error to be the rule in any decisions which we find touching this point, that the plaintiff may give evidence of his high standing and good character to' aggravate damages; and, as above observed, “the rule tobo just must be mutual,” and should be extended to allow the defendant to show an absence of those aggravating circumstances, in order to mitigate damages.
    The authorities seem to go even further, and to justify the defendants, in a trespass or tort, in case they acted in the ^search in good faith, without malice, and bad reasonable grounds to suspect the plaintiff or his house.
    It-is further a rule that the circumstances which would render a search reasonable are for the jury to judge. Lord Tenterden, in Beckwith v. Philby, 6 B. & C. 635, says: “A private person, without warrant, may arrest, first, if there be a felony dono; second, if the party arresting has probable cause which is traversable ; third, the arrest must be by the party suspecting.” In the case of Chin v. Morris, 1 R. & M. 224, this principle is laid down: “In trespass and false imprisonment ipon a charge of felony, held, that evidence showing that the defendant had reasonable grounds of suspicion, was admissible in reduction of damages.”
    In the case of Davis v. Russell et al., 5 Bing. 354, an action of trespass and false imprisonment, the defendant gave in evidence, under the general issue, circumstances to show that he had probable cause for apprehending and imprisoning the plaintiff, which was allowed; tho judge laying it down as a position sound in law, that the jury must find tho facts supposed to constitute the probable cause, and whether the circumstances would justify or mitigate the damages, or, in other words, “whether the jury, under the same circumstances, would have done as tho defendant did.”
    In the case of Sedwick v. Catchpole, Cald. 291, cited in 2 Stark. Ev. 321, an action of trespass and imprisonment, the jury gave a verdict of £20, but tho court granted a new trial.
    Lord Mansfield observed, “ the first question is, whether a felony has boon committed or not? And then the fundamental distinction is that if a felony has actually boon committed, a private person as well as a peace officer may arrest; if not, tho question turns upon this: Was the arrest bona fi(Le? Was this act done fairly and in pursuit of an offender, or by design, or málico, and ill-will ?” And Buller, J., in the same case; observes: “ To a certain extent, even a private person is justified or not, in arresting, according to the particular circumstances of suspicion, on which he must exercise his discretion.”
    *It is thought those authorities are sufficient clearly to settle the principle, that reasonable grounds of suspicion justify or mitigate, in the case of injury done to the person by assault and false imprisonment; and ii in case of injury to the person and liberty of the plaintiff, much more would it justify or mitigate in tho case of trespass upon property.
    These authorities further show that the question of probable cause ought to have been admitted as a fact to be traversed by the jury. The justice then erred in ruling it out, and the court of common pleas in sustaining his decision.
    Tho remaining question presented on tho bill of exceptions is, would the facts proposed to be proven, and which were excluded, tend to afford reasonable ground to suspect that there were counterfeit bank bills concealed in the house of the plaintiff at the time of the search?
    
      What were the facts proposed to be proven? Not that a counterfeiter was there, for that had already been proven, as appears from the record. The quostion is not whether counterfeit paper was there, but di4 the defendants believe there was? For, if not, the trespass was wanton, unjustifiable, and aggravated.
    The object of introducing the testimony excluded by the justice, is shown in the bill of exceptions to be to manifest the reasonableness of the search, and thereby to justify or mitigate damages. Has the character of the plaintiff and his house nothing to do with this?
    Does the house, and the keeper of a house of a bad character, receive as great an injury from a search for counterfeit paper as one of good character? The actual damages might be the same in both cases, but the smart money assessed in' tort surely would not, in justice, be the same.
    We ask the court again to look to the circumstances. The felon was there a guest when arrested; an officer was in company who had arrested the culprit; some counterfeit paper had been found, not oil the person of the prisoner, but on the premises of the plaintiff. Under these circumstances, the defendants were in a house which can be proven to be a house *“ notorious as a harbor of counterfeiters, gamblers, felons, and dissipation.” But the court below say you must not prove the whole facts. You may prove that Holliday was arrested; that ho had counterfeit paper; that an officer was with you and aided in the search, but' you shall not show the wide contrast between that place and the peaceful, orderly, and unsuspicious house of respectability. Was this not error most manifest? Would this court or a jury, as reasonably suspect a house, whose owner and keeper rendered it a place notorious for order and propriety, for being a place of the concealment of counterfeit paper, as the house where not only the felon was a welcome guest, but which had alrehdy been notorious for its vices, and especially the very vice the defendants had been called upon by an officer to aid in ferreting out ? Does not the bringing of this suit under the circumstances itself, throw a shade of suspicion over the character of the plaintiff? Would an honest landlord, who had no connection with the felon, have objected to having his house searched under such circumstances? Yet a character notorious as thus suspicious must not be exposed, either to show a reasonable suspicion or a want of malice in the defendants.
    A plaintiff with such a character and such a house, under these circumstances, finds a justice who is unwilling that these facts should be shown, or that a jury should consider them either as a justification or mitigation of damages. Is it not that error which does injustice to the defendants and protects vice, and hinders the administration of public justice?
    If the low character of the house did not itself excite suspicion, did it not at least strengthen that suspicion, and render the search more reasonable ? By what rule of law, then, should those facts have been kept from the jury, and the case left to go unmitigated and unexplained to the jury?
    It is urged that the bill of exceptions alleges .too much; for if is said that, to prove the house to be a “house of ill-fame,” would not tend to afford any evidence that counterfeit paper, under the circumstances, could be concealed there.
    *If, however, this term should, in the estimation of any, be ambiguous, or even a double entendre, the sense in which it is used in the bill of exceptions can not be easily mistaken, for the bill of exceptions points out the sense in- which it is there used, viz: as “ a harbor of gamblers, counterfeiters, felons, and dissipation.”
    The attempt, then, to misconstrue the bill of exceptions in order to mulct the defendants in unmitigated damages, while it would screen from exposure a place suspicious for its vice, is but a vain effort to prop a sinking cause, to sustain which, we think, thei court of common pleas erred.
    If we are right in the interpretation of the term “ill-fame,” at which the counsel for the plaintiff b'elow boggled, we must still think that its introduction into the bill of exceptions did not so vitiate the exceptions as to justify the court in sustaining the decisions of the justice of the peace.
    It seems to us a position too plain to admit of argument, that “a harbor of counterfeiters, felons, gamblers, and dissipation,” is a place affording more reasonable grounds of suspicion that counterfeit paper was there concealed, than if the house had been of a contrary character.
    For two reasons, then, the court erred in rejecting this testimony : 1. It afforded evidence that the defendants below acted in good faith, and with a design to promote public justice, and not with malice or wantonness in the case in which the trespass is alleged to have been committed. 2. It would have shown that the injury to the plaintiff’s character, or the character of his house, was not such as to justify or require exemplary damages, but, on the contrary, if a recovery at all was had, it should have been merely nominal.
    However small, then, the verdict of the jury may have been, if it went beyond nominal damages, or even if it gave damages which would tend to encourage a citizen to harbor, encourage, or protect counterfeiters and felons, it was an infraction of principles too important to be overlooked in the administration of justice The judgment ought, therefore, to be reversed. None doubt but that, by the rejection of this evidence, a recovery *was had, which, on the.one hand, rebuked the faithful citizen for ferreting out and exposing concealed vice, and, on the other hand, encouraged and protected a scoundrel in tolerating the pest of society under his control.
    There are, also, upon this record other causes of error, as we think, which do not appear upon the bill of exceptions. One of those errors is the impaneling of the jury. The record does not show that they were good and lawful men, citizens of the township, as required by the statute. It is a question worthy the attention of the court, whether this should not, in jury trials before a justice of the peace, as well as belore courts of record; appear upon the record. We are not aware that this question has been decided by the authority of this court. In reviewing the record in this case, wo hope the court will give their attention to this question, and let it be so settled as to determine upon a uniform practice in cases before justices.
    The other question which arises out of the errors assigned, and which we hope will not be overlooked by this court, is on that part of the record which shows that the justice did not, though requested, charge the jury respecting the law of the case.
    This part of the record is certainly very deiective, lor although it shows the fact that the justice was asked to give the law to the jury, and that he refused to do so, it does not show the points on which ho was requested to charge the jury. Whether of little'or groat importance can not there be learned ; and wherein counsel before the jury differed on the law, the jury were left in entirely in uncertainty as to the law, or made judges of the law, and thus an opportunity is donied to the party aggrieved to take his exceptions.
    The court will readily perceive that great and manifest injury might bo done by tolerating a practice so loose. Indeed, from the record, the court may plainly perceive that injustice has been done in this case; for though the justice states that he was requested to charge the jury, and refused, he carefully overlooks the points asked to be given to the jury. The fact is, a bill of exceptions setting forth.the law asked to bo given *in charge to the jury, was offered to the justice, which he refused to sign, thereby shutting out the opportunity of assigning causes to the errors of this part of his doings. We will not here state the points of law on which the justice was then requested to charge the jury, though distinctly within our recollection, for they do not appear of record, nor would the justice admit them of record. Such a course of superciliousness, as well as injustice, we think, can not bo tolerated without seriously endangering the safety of all that is dear to the citizen. It is error — manifest and injurious error.
    Por these reasons we think the court of common pleas erred in not reversing the judgment of the justice of the peace, and permit us to have our case presented fairly and legally to the jury.
   Read, J.

The evidence ruled out by the justice of the peace, aiS shown by the bill of exceptions, in no sense constituted a justification of the trespass complained of. But it was competent in mitigation of damages.

The principle of permitting damages, in certain cases, to go beyond naked compensation, is for example, and the punishment of the guilty party for the wicked, corrupt, and malignant motive and design, which prompted him to the wrongful act. A trespass may be committed from a mistaken notion of power, and from an honest motive to accomplish some good end. But the law tolerates no such abuse of power, nor excuses such act; yet, in morals, and the eye of the law, there is a vast difference between the criminality of a person acting mistakenly from a worthy motive, and one committing the same act from a wanton and malignant spirit, and with a corrupt and wiclsed design.

Hence, where a jury are called upon to give smart money, or damages beyond compensation, to punish the party guilty of the wrongful act, any evidence which would show this difference, or rather all tho facts and circumstances which tend to explain or disclose the motives and design of the paity committing the wrongful act, are evidence which should go to tho *jury for their due consideration. The evidence ruled out by the court was of this character.

Tho judgment must be reversed and the cause remanded for further hearing. Judgment reversed.  