#### *Allen J. Dean vs. Solomon Horton.*

1. In action for an assault and battery, the preceding-words, or imputations of the same kind as those which immediately led to the assault, if previously communicated to the defendant, may be offered in evidence, by way of mitigation of damages.

2. The inducement to the transaction, and all such particulars, in fire conduct of either party, leading to the final act, or forming part of it, as seemed to shew in what degree blame attached to them severally; and such acts as would aid the jury in determining the just measure of damages, would be admissible evidence.

*Tried at Gittisonvitte,*January, *1842*— Before Wardlaw, J.

The defendant committed a grievous battery upon the plaintiff, at a shooting match. At various periods, on the day of the injury, the parties were observed. They met and shook hands. Horton was afterwards seen to lay his hand in a rude manner on Dean’s breast, and to use some provoking language, which Dean did not notice. They sat together some time in conversation. Horton passed when Dean was talking abusively of him, and said, “ Mr. Dean, you have been talking enough of me — it is time to quit.” Dean being somewhat intoxicated, was talking in an ordinary strong voice, (without regard to who should hear, and was overheard by several persons,) with a witness on horseback, to whom he said, that he and Horton had settled their difficulty; then he joked the witness about giving a frock to Mrs. Horton, and being checked, said that Mrs. Horton was the damndest liar in the world; abused her much ; said of her every thing except that she was a virtuous woman ; and declared that she had said his son Allen’s p-■ was not longer than , her little finger. At this moment Horton rushed forward. At this, Dean struck. Horton drew a pistol, and shot Dean in the hand, and immediately drew a knife, with which he stabbed Dean in the hip. The wounds were severe, but not dangerous.

It was manifest that Horton came provided with deadly weapons ; and by way of further mitigation and explanation of his conduct, he offered to shew imputations upon his wife’s chastity, made by Dean, at times preceding the day of their meeting. This was objected to, but the presiding Judge held that preceding imputations of the same *148kind as those which immediately led to the assault, if previously communicated to the defendant, might be offered in evidence. Under this permission, the defendant proved, that at various times, and to various persons, the plaintiff had talked of different men having given frock patterns to Mrs. Horton, with a meaning which all understood to be injurious to *her)*and that these conversations had been repeated to the defendant, who, on one occasion, to a witness, threatened to shoot Dean, if he did not quit talking about Mrs. Horton.

The Court brought to the consideration of the jury, the very blameable conduct of both parties, and told them that the damages should be estimated without regard to. the fact that there was a conviction on an indictment for the same battery ; the jury found a verdict of one dollar.

The plaintiff appeals, on the grounds annexed.

1. Because his Honor permitted testimony of provocation, on the part of the plaintiff, accruing at various times before the day of the alleged assault, to go to the jury.

2. Because the verdict was, in other respects, contrary to law and *the evidence..*

Hutson, *for the motion.*

If the Judge admits evidence’ which should be rejected, it is good ground for a new trial. *Kinloch vs. Palmer et al.*1 M’C. R. 216. The Court will not pretend to judge how far it did or did not influence the jury, but will grant a new trial. *JEvering-ham ads. Langton, 2*M’C. 167, And this, although there is no apparent error in the verdict itself. *Smyel vs. JVio-lon, 2*Bail. 421.

The Judge did admit improper evidence — for no evidence of provocation occurring before the day of assault, is admissible. *Pay vs. Avery,*1 Mass. R. 12. And he admitted evidence of defendant’s character, to which plaintiff objected. *Loyd vs. Monpoy, 2*N. *&*M’C. 446.

The Court will sometimes interfere, and order a new trial, from the smallness of the verdict..

Outrageous assault, $1 damages — new trial ordered. *Bacot vs. Keith, 2*Bay. 466, which is a case all fours with ours. See also, *Wallace vs.*Trapier, 2 N. M’C. 516 ;. *Richardson vs..*Dukes, 4 M’C. 156..

*149Martin,' *contra.*

Qaioted and relied on *Rhodes vs. Bunch et al.*3 M’Cord, 66. Where facts and circumstances were permitted to he given in evidence, even when they involved character, and the case of an insult to a wife or daughter, was one of the illustrations used by Judge Nott. He farther contended, that it ,was a case of which the jury were the proper judges.

Curia, *per*

Wardlaw, J.

This Court thinks that the testimony objected to was admissible.

It might be said that this case differed from the case of *Avery vs. Ray et al.*1 Mass. 12, which has been relied on for plaintiff, in this; that there, it appeared that no provocation at all was offered on the day of the injury, and it could have been only by presumption, that any previous provocation could have been assigned as the motive of the defendant; but the principles assumed, and the language employed by the Judges, who decided that case, are opposed to the admission of the testimony here. The case of *Rhodes vs.*Burrell, 3 M’C. 66, decided by our own Court, is, however, in language equally strong, in favor of the admission, and seems to be as well supported by reason.

The testimony was offered in mitigation; inquiry was to be made into the motive of the defendant. The inducement to the transaction, and all such particulars in the conduct of either party, leading to the final act, or forming part of it, as seemed to shew .in what degree blame attached to them severally, were calculated to aid the jury in determining the just measure of retribution and punishment. A provocation seemingly light, may have exasperated patience, if it were a repetition of an offence, before often given and endured ; and resentment, otherwise rash, or preparation, otherwise ferocious, mai/ be explained by the previous relation of the parties in former occurrences between them.

In like manner, the testimony offered by the defendant, of his own peaceable character, objected to here in the argument, was calculated to throw light upon the nature of the provocation which could have suddenly roused him *150to extreme revenge, and is wholly different from testimony of the plaintiff’s character not put by himself in issue. The motion is dismissed.

D. L. WARDLAW.

We concur. J. S. Richardson, J. B. O’Neall, J. J. Evans, A. P. Butler.