Boling v. Wright , 16 Ala. 664 ( 1849 )

CHILTON, J.

The general rule as applicable to the admission of evidence in actions of this sort is, that the defendant may .give in evidence any circumstances connected with the transaction, for which the suit is instituted, in mitigation of the injury done by the trespass, if the matter set up does not amount to a complete justification. — 2 Greenl. Ev. §s 272, 274. So in Wills v. Head, 4 C. & P. 568, (S. C. 19 Eng. Com. Law Rep. 531) it was held, that where the owner of sheep shot a dog, which had worried them, not however in the field where the sheep were worried, but some distance from it, though the shooting was not justifiable, yet the habits of the dog should be received in evidence in mitigation of damages. Upon the same principle, in actions for malicious prosecutions, circumstances of suspicion connected with the notorious bad character of the plaintiff have generally been allowed in mitigation of damages. — 2 Greenl. Ev. § 458; 2 Phil. Ev. 258. The courts have constantly felt the difficulty of laying down any general rule upon this subject, and the evidence offered must, in a great measure, depend for its legality on the nature of the offence charged, and the peculiar circumstances aitend-ing it. The most that could be said is, that the circumstances offered in mitigation, must not be so remote as that by just inference they may not be supposed to have connection with the act complained of, as explanatory of its character, or of the motives and intention of the defendant in its commission.

In the case before us, the defendants insisted that they had permission of the plaintiff, who was the owner of the slave, to whip him, if found upon their premises, and to. use such means as were necessary to prevent his going upon their premises. After this permission they did whip him, giving him eighty lashes, and this whipping they proposed to show was not sufficient to prevent the repetition of his offence, and rendered it necessary, under the license they had, to use more severity than before. In this view, we feel no hesitation in saying the evidence was proper in mitigation, and if the plaintiff below desired to restrict its influence upon the jury, he should not have moved its entire exclusion, but should have asked appropriate charges of the court limiting its legal effect.

Let the judgment be affirmed.