#### JAMES BEAL *vs.*MARRIOTT ROBESON & AL.

Where in an action for a malicious prosecution it became material to enquire, whether a party was drunk at a particular time, he may give evidence by witnesses, who have known him long and intimately, that he was not addicted to drunkenness; but he cannot give in evidence his general reputation of being a sober man.

In civil cases the general rule is, that, unless the character of the party be put directly in issue, by the nature of the proceeding, evidence of his character is not admissible.

In an action for a malicious prosecution, in order to rebut the imputed malice, the defendant may shew, that he had consulted counsel learned in the law, upon a full and fair statement of all the facts of the case, and acted according to his advice: but it is incompetent for him to prove that he consulted with an unprofessional man and followed his advice, in order to shew that he acted *Iona fide*and without malice.

The case of *McRaey. Lilly,*I Ired. Rep. 118, cited and approved.

Appeal from the Superior Court of Law of Chatham County, at the Spring Term, 184S, his Honor Judge Pearson presiding.

After the new trial granted in this case at June term, 1847, (see 7 Ire. Rep. 280) it was again tried at Chatham, on the Spring circuit of 1848, when the defendants had a verdict and judgment, and the plaintiff appealed. In the bill of exceptions it is stated, that, upon the question of probable cause, much testimony was given on both sides, but it is not set forth, for the reason that his Honor chax-ged, that there was no probable cause for the prosecution, and no exception was taken *to the*charge.

To show that the defendants had acted with malice, the plaintiff contended that the defendant Robeson had not been robbed at all, that he went from Pittsborougb very drunk, and on his way home fell from his horse, and hurt *277his head, and thereby received the injury, which he swore that the plaintiff and his associates had inflicted upon him. As to the fact whether he was drunk when he left Pittsborough, the testimony was contradictory, one witness swearing that he was very drunk, another that he was only intoxicated, and a third that he was neither drunk nor intoxicated, but had only taken a dram.

The defendant, Robeson, then offered to prove by witnesses, who had known him intimately for the last thirty years, that he was not addicted to drunkenness, and that although he would take a dram, they had never known him to be drunk, and that he bore the character of being a sober man. This testimony was objected to by the plaintiff, but was admitted by the Court.

To disprove the allegation of malice, the defendant, Robeson, offered to show by one Isaac Holt, that the witness was a Justice of the Peace in the County of Orange and had acted as such for many years; that the defendant formerly lived near him, and was in the habit, as were the other neighbours, of advising with him on legal questions ; that the defendant afterwards removed to the County of Chatham, and the next day after he had received the injury complained of, the witness, who was in the neighborhood on a visit, called to see him and the defendant then stated to him the circumstances, under which he had been robbed, and the facts tending to show, that the plaintiff was one of the persons concerned in the act, and asked his advice as to the proper course for him to pursue ; and the witness advised him that it was his duty to take out a State’s warrant against the plaintiff. This testimony also was objected to by the plaintiff, but admitted by the Court. After the verdict for the defendants, the only ground, upon which a new trial was asked, was for the improper admission of testimony. A. new trial was refused and the plaintiff appealed.

*McRae,*for the plaintiff.

*278*Waddell,*for the defendants.

Battle, J.

The testimony offered by the defendant to prove, by witnesses who had known him long and inti, mately, that he was not addicted to drunkenness, was properly admitted. This habit in the use of ardent spirits was a fact, which might-well be within the knowledge of the witnesses, and to which they might testify, as it was relevant to the subject of enquiry, to-wit, whether the defendant was drunk at the time spoken of by the other witnesses. But we think that there was error in admitting the testimony for the purpose of proving that the defendant had the character of being a sober man. “ In civil suits, the general rule is, that unless the character of the party be put directly in issue by the nature of the proceeding, evidence of his character is not admissible.” *McRae*v. *Lilly,*1 Ired. Rep. 118. Here the character of the defendant for sobriety was not put directly in issue, and we can see no reason to-take the case out of the general rule.

The other testimony, offered by the defendant to disprove malice, was inadmissible and ought to have been rejected. When a party consults counsel learned in the law, upon a full and fair statement of all the facts of the case, and acts according to his advice, that circumstance may be proved to show that he acted *bona fide,*and without any malicious intent. *Blunt*v. Little, 3 Mason’s Rep. 102. *Hewlett*v. *Cruckley,*5 Saund. Rep. 277, (1 Eng. C. L. Rep. 107,) 2 Stark. Ev. 495. We have neither seen nor heard of any case, where the opinion of an unprofessional man, taken by the defendant, has been admitted to show that he acted in good faith and without malice. In the case of *Blunt*v. *Little,*Judge Story says, that “it is certainly going a great way to admit the evidence of any counsel, that he advised a suit upon a deliberate examination of the facts, for the purpose of repelling the imputation of malice, and establishing probable cause *279and in *Hewlett*v. *Cruckley,*the rule is laid down by the. Court, after an *advisari,*with evident caution, and with, some > doubts as to its correctness. We do not feel at liberty to carry it farther, by admitting testimony of the opinion of any gentleman, however respectable, who has not qualified himself for'giving advice upon questions’of law, by studying it as a science, and pursuing it as a profession. This Court certainly did not intend to do so, when this case was formerly before it. The persons, to consult whom it is stated, in the opinion then delivered, to be the duty of a party who conceives himself aggrieved, and is about to institute a criminal prosecution, are gen.tlemen of the legal profession, and not those, who in point of qualification to advise upon such questions, stand no higher than the party himself.

The judgment must be reversed, and a new trial granted.

Pee Cuuiam. Judgment reversed and new trial granted.