APRIL, 1810. Brown T. May. tion 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. For 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. (a) (a) 3 Bac (Gwill edit.) If the circumstances, though very mitigating, will not, as the tit. Pleas, letter (G)p.370. defendant knows, justify his conduct, is not the Jury to hear 2 what may excuse it in a great degree? If not, law is not v. Allcott. founded on justice. But this is the law.(b) any Term Rep. 166. Bennett 2 Bos. & Pull. 924. Watson (b) Co. Litt. 12 Vin. 159. pl. 13. 16. (Grill edit.) tit.Authority, letter (D.) p. This distinction being understood, let us see whether v Christie. the facts stated in the bill of exceptions amount to a justi- 283. fication 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 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.(c) Suppose, then, both de- (c) 1 Bae. fendants had attempted to plead it; the plea would clearly have been bad as to Boisseau; and, if two join in a plea, 20. and it be bad for one, it is bad for both.(d) If Brown (d) 1 Saund. 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.(e) And there is no obligation on a par- () Ibid. note ty 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."(f) Suppose (f) Hobart, Brown had only pleaded the license to go to the negro quarters, and had not pleaded as to the battery of the negroes 28. note 2. 3. 295. APRIL, 1810. Brown May. at all; judgment would, as to the battery, have been signed against him by nil dicit;(a) for, in pleading matters in excuse, all the circumstances should be shewn.(b) But, as, where Brown, Boisseau and the negroes were the only dramatis persona, to prove their improper conduct was impossible; the effort was merely to prove the license, and not (b) Ib. 516, 517 referring that the slaves were acting improperly. This, then, was Trespass, let- 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.* (a) Chitty, 509. to Buc. tit. ter (1.) 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 this case. The evidence attempted to be introduced in mitigation of damages, could not have that ef fect; 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 (c) 1 Cranch, irrelevant to the cause, and therefore not admissible. (c) Indeed, the circumstance of Brown's availing himself of May's permission, and acting under colour 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. 132. v. Fendall. Turner 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? *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: the District Court refused to admit it; but the Court of Appeals reversed the judgment, with instructions to admit the evidence. APRIL, 1810. Brown 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, a) they were (a) & H. & M 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. The Judges delivered their opinions. 82. V. May. 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.(6) But I hold it to be a rule of law no (b)s Bl. Com. less certain, "that illegal or improper evidence (however p 298, 299. 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.”(c) (c) Per_ PenThe trespass charged in the declaration, is, 1st. For break- dleton, Pres't. ing and entering his close; 2dly. For beating his slaves; Lee v. Tape and, 3dly. For throwing down his fences around his wheat 305. Bull, N. 2 Wash 281. cott. field, whereby his crop of wheat was trodden down and The per mission 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 him to beat the slaves. But the bill of excepupon tions gives us to understand that the proof was that Boisseau, and not Brown, was the person who beat them. mission 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 The evidence, if admitted to go to the Jury, might have had the effect pointed out by Judge Pendleton, and not. was, therefore, in my opinion, most properly rejected. am of opinion that the judgment be affirmed. I 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. APRIL, 1810. Brown V. May. Depew against Howard and Wife. Thursday, which the re is by caveat, a ty may enter under circumstances JACOB DEPEW brought a suit in Chancery in the 1. In cases in County Court of Botetourt, against John Howard, and gular retaedy Mary his wife, George Lemmon and Benjamin Howard, to Court of Equiset aside a patent granted to John Howard for 215 or 250 tain jurisdicacres of land on the waters of Glade Creek, in the said tion, County, so far as the same comprehended fifty acres of land, which render its interposifor which the complainant had also obtained a patent sub- tion just and sequent in date to Howard's patent, but founded upon an such circumentry prior to Howard's entry. proper, but 9 ances must be made to appear to the to land ought turbed m fa The grounds of equity stated in the bill are, that the de- satisfaction of fenants had notice of the plaintiff's prior entry, and that the Court. their location calls specially for these fifty acres; that How-2 A legal title ard's survey was never actually made; that, the plaintiff nt to be disbeing kept ignorant of it, a patent, prior in date to his, was your of a party not having fraudulently issued thereon; that he entered a caveat, (but a superior right in equiin what Court he does not say,) which was dismissed to to the iden"either because he could not attend to it, the small pox question. being then at the Court-house, or because the Howards resided out of the State, so that no summons could be served on them." The defendant John Howard, iu his answer, that his wife, in his absence, in 1778, or 1779, tical land in 3. Quære, whether an entry for a certain number of acres declares" on the wa purchased ters of Glade Creek, joining the lines of JH's land, and the locator's own land on W's run," be sufficiently certain? |