
    *Brown and Boisseau v. May.
    Wednesday, May 2, 1810.
    1. Trespass — Plea of “Not Guilty" — Evidence in Mitigagation of Damages — On a joint plea of “not guilty,” in trespass vi et armis against two defendants, for breaking the plaintiff’s close and beating his slaves, the defendants ought not to be permitted to give in evidence, by way of mitigation of damages, a license from the plaintiff to one of them, to visit his negro quarters, and chastise any of his slaves who might be found acting improperly; the battery being committed by the other defendant; and no proof appearing that the slaves who were beaten had acted improperly.
    2. Illegal Evidence. — Illegal, or improper evidence ought never to be confided to the Jury, however unimportant it may be to the cause.
    May brought an action of trespass vi et armis, in the Petersburg District Court, against the appellants, for breaking and entering his close, and beating several of his slaves in the declaration named, “so that he was deprived of their service for a long time; and throwing down his enclosures ’round his field, whereby his wheat then and there growing was trodden down and injured by a great number of cattle and horses belonging to divers people; and for other wrongs, injuries, and enormities,” &c. The defendants pleaded “not guilty,” jointly. A bill of exceptions states that, on the trial, the defendants offered, in mitigation of damages, “the testimony of a witness tending to prove that the plaintiff had given a general permission to Brown, one of the defendants, to visit his negro quarters, and to chastise any of his slaves who might be found acting improperly ; but the Court declared such testimony improperen the plea of “not guilty,” and would not permit the same to be given, although the beating by the defendant Boisseau was in tiie presence, and with the assent, of the other defendant Brown; since both the defendants had joined in the same plea, and the act of beating the plaintiff’s slaves, in the declaration charged, had been committed by the defendant Boisseau, to whom, it was admitted by the defendants, no such permission had been given.” Verdict and judgment for 150 ■dollars damages.
    George K. Taylor, for the appellants.
    Authorities declare that, on the general issue, special matter shall not be given in evidence: but what do they mean? Not that the particular circumstances tending each case may not be laid before the Jury in mitigation of damages: for the plaintiff may lay before them what amounts to 289 an aggravation *of injury, provided such aggravation does not itself furnish a cause of action, in which case it ■ought to be stated in the declaration. And, therefore, he is always allowed to prove his own peaceable demeanour, his endeavour to avoid altercation, and his retreat from ■combat, on the one hand, and the defendant’s abuse on the other. Bor the purposes ■of equal justice, then, the defendant ought to be, and always is, permitted to prove, in mitigation, under the plea of “not guilty,” every thing which is not a justification of his conduct, and a legal bar to the plaintiff’s recovery: but such justification or legal bar must be specially pleaded,  If the circumstances, though very mitigating, will not, as the defendant knows, justify his conduct, is not the Jury to hear what may excuse it in a great degree? If not, law is not founded on justice. But this is the law. 
    
    This distinction being understood, let us see whether the facts stated in the bill of -exceptions amount to a justification of the defendants, or either of them. They endeavour to prove that May had given a license to one of them to visit his negro quarters, and chastise any of his negroes who might be found acting improperly. But this permission was to that defendant alone, and could not be by him transferred to another,  Suppose, then, both defendants had attempted to plead it; the plea -would clearly have been bad as to Boisseau; and, if two join in a plea, and it be bad for one, it is bad for both,  If Brown alone had filed such a plea, still it might have been demurred to; because, although good as to one part of his defence, (the going on the land,) it was bad as to another, (Boisseau’s beating the slaves,) and, unless the plea be good throughout, it will not stand,  And there is no obligation on a party to plead what he knows to be false, or that he cannot sustain. On the contrary, every plea should be true; “for truth (saith Hobart) is the goodness and virtue of pleading, as certainty is the grace and beauty of it.” Suppose Brown had only pleaded the license to go to the negro quarters, and had not pleaded as to the 290 battery of the negroes *at all; judgment would, as to the battery, have been signed against him by nil dicit; for, in pleading matters in excuse, all the circumstances should be shewn,  But, as, where Brown, Boisseau and the negroes were the only dramatis personas, to prove their improper conduct.was impossible; the effort was merely to prove the license, and not that the slaves were acting improperly. This, then, was only a matter in mitigation of damages, which could not be pleaded, and, if not admitted to be given in evidence on the general issue, could not have been used at all.
    
    Hay, for the appellee,
    did not think it necessary to object to most of the propositions made by the counsel on the other side. Admitting them all to be correct, they cannot avail him in tbis case. The evidence attempted to be introduced in mitigation of damages, could not have that effect; for it is not inserted in the bill of exceptions that the slaves were, at the time of the chastisement, acting improperly. Without that important circumstance, to shew the license properly pursued, it was, in itself, totally immaterial and irrelevant to the cause, and therefore not admissible,  Indeed, the circumstance of Brown’s availing himself of May’s permission, and acting under col-our of authority, is rather an aggravation of the atrocity of his conduct, by the additional guilt of a breach of trust; besides, though his entry was lawful, he became a trespasser ab initio, by exceeding his powers.
    JUDGE TUCKER suggested a question, whether the evidence should not have been received to mitigate the damages for breaking the close, by shewing the entry was not illegal?
    
      *Hay. Perhaps, if the defendants had claimed the benefit of the evidence in that limited and restricted way, it might have been received; but, in the enlarged manner in which it was offered, as applying both to the breaking the close and battery of the negroes, the Court were right in rejecting it. As in the case of Buster v. Wallace,  they were not bound to direct the jury to apply it restrictively.
    Taylor, in reply.
    Mr. Hay appears to admit all my doctrine, but says the evidence was immaterial, and if received, ought not to have had any effect on the Jury. But of this the Jury had the right to judge. The naked case of going on a plantation and beating slaves, without any authority, is materially different from one where there was an authority, and that authority merely irregularly exercised. I admit, where evidence is totally irrelevant, it should be rejected; but the case is very different here.
    May 2, 1810.
    
      
      Illegal Evidence. — Illegal or improper evidence, however unimportant it may be to the cause, ought never to be confided to the jury; for, if it should have an influence upon their minds, it will mislead them; and, if it should have none, it is useless, and may at least produce perplexity. To this point, the principal case was cited in Payne v. Com., 31 Gratt. 859; foot-note to Lee v. Tapscott, 2 Wash. 276. See also, monographic note on “Evidence" appended to Lee v. Tapscott, 2 Wash. 276.
    
    
      
       5 Bac. (Gwill. edit.) tit. Pleas, letter (G.) p. 370, 2 Term Rep. 160, Bennett v. Allcott; 2 Bos. & Pull. 921, Watson v. Christie.
    
    
      
       Co. Litt. 283, 12 Vin. 159, pl. 13, 16.
    
    
      
       1 Bac. (Gwill. edit.) tit. Authority, letter (D.) p. 320.
    
    
      
       1 Saund. 28, note 2.
      
    
    
      
       Ibid. note 3.
    
    
      
       Hobart, 295.
    
    
      
       1 Chitty, 509.
    
    
      
       Ib. 516, 517, referring to Bac. tit. Trespass, letter (I.)
    
    
      
      Note. In Ballard v. Leavell, (MS. Nov. 1805,) in this Court, the case was trespass for taking a slave from the plaintiff’s possession.: on the general issue, the defendant offered evidence (in mitigation of damages) that the slave was his own: th e District Court refused to admit it: but the Court of Appeals reversed the iuclgment, with instructions to admit the evidence. — Note in Original Ndition.
    
    
      
       1 Cranch, 132, Turner v. Fendall.
    
    
      
       4 H. & M. 82.
    
   The Judges delivered their opinions.

JUDGE TUCKER,

(after stating the case.) I admit, with Mr. Taylor, that this action being brought against two persons, and the evidence offered tending only to prove a permission to one of them to visit the plaintiff’s negro quarters, that matter could not be pleaded as a justification of the entry of both the defendants. I admit also, that it is an invariable rule, that every defence, which cannot be specially pleaded, may be given in evidence upon the general issue at the trial, But I hold it to 'be a rule of law no less certain, “that illegal or improper evidence (however unimportant it may be to the cause) ought never to be confided to the Jury; for, if it should have an influence upon their minds, it will mislead them; and, if it should have none, it is useless, and may at least produce perplexity.” The trespass charged in the declaration, is, 1st. For breaking and entering his close; 2dly. For beating his slaves; and, 3dly. For throwing down his fences around his wheat 292 *field, whereby his crop of wheat was trodden down and injured, by other persons’ cattle and horses. If the charge had been only for breaking and entering his close, and beating his slaves, and the evidence had been that he to whom the permission was given to visit the negro quarters, and to chastise any of the slaves who might be found acting improperly, had alone beaten any of them, and that the other defendant stood by without molesting any of them* the evidence offered might have been admitted in mitigation of damages, for the bare entry upon the plaintiff’s plantation, but not for the beating of the slaves. Because the permission did not extend to beating them unless they were found acting improperly: now it is not stated that they were found acting improperly; consequently, even Brown had no right to beat them; nor could it be a matter in mitigation of damages, for beating them if not found acting improperly, that he had permission to chastise them, (a word always, to be understood in a milder sense,) if found acting improperly. The evidence therefore would have been inadmissible, if Brown had been the party who took upon' him to beat the slaves. But the bill of exceptions gives us to understand that the proof was that Boisseau, and not Brown,, was the person who beat them. The permission given to Brown could, therefore, form no possible excuse for the conduct of Boisseau; nor for Brown, who, by standing by, and assenting to the beating by Boisseau, made himself particeps criminis with Boisseau. The evidence, therefore, was, I conceive, totally inadmissible, even upon this view of the subject. But the declaration charges a further wilful and violent trespass, in throwing down the plaintiff’s fences, and exposing his wheat to be injured by the neighbours’ cattle and horses. Could a permission peaceably to visit the negro quarters, and to chastise slaves found to be acting improperly, serve as an apology, or extenuation of this sort of damage? Surely not. The evidence, if admitted to go to the Jury, might have had the effect pointed out by Judge 293 Pendleton, and *was, therefore, in my opinion, most properly rejected. I am of opinion that the judgment be affirmed.

JUDGE ROANE could see no error in the judgment.

JUDGE FLEMING

was of the same opinion. The evidence had been very properly rejected.

Judgment unanimously affirmed. 
      
       3 Bl. Com. 305, Bull. N. P. 298, 299.
     
      
       Per Pendleton, Pres’t, 2 Wash. 281, Lee v. Tapscott.
     