Waples v. Burton

Superior Court of Delaware

Waples v. Burton

2 Del. 446

DecidedJuly 5, 1838

StatusPublished

This text of 2 Del. 446 (Waples v. Burton) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Waples v. Burton, 2 Del. 446 (Del. Ct. App. 1838).

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Opinion

Per Curiam:

J. M. Clayton, Chief Justice.

There is much doubt on the question now presented. It seems to be unsettled in England, but it has there been made generally to depend on the plea whether of not guilty, or of a justification. But here an additional difficulty arises; because, contrary to the. English practice, double pleading is allowed ; and a defendant may plead, and in this case has pleaded, both the general issue and justification.

It is laid dowm in Phillips’ evidence, and also by Starkie, that evidence of the plaintiff’s bad character is, on general principles, clearly admissible in mitigation of damages; unless the defendant by his pleading, puts in issue the truth of the charge. 1 Phill. Ev. 146; 2 Stark. Ev. 216. But it seems that even the first branch of this rule has been shaken, if not changed. Roscoe’s Evid. 3S, 299. Jones vs. Stevens, 11 Price, 235. Not only has the rule been denied, but the exception has not always been admitted, for-in Kirkham vs. Oxley, Heath, judge, in an action of slander imputing larceny allowed the defendant, who had justified, to go into evidence of the plaintiff’s bad character in mitigation of damages. And this decision is cited with approbation in the note to Stark. Ev. 217.

In South Carolina, evidence of the plaintiff’s general-bad character is admitted in the action of slander. 2 Nott & M‘Cord, 511; 1 ib. 268. In New York the question is unsettled, the court having divided upon it. 1 Johns. Rep. 46. The Massachusetts courts have inclined to admit such evidence. 3 Pick. 376; 3 Mass. Rep. 553. In Pennsylvania the evidence appears to be admissible; as the plaintiff in an action for a libel, where there was a plea of justification, was permitted to set up his character by evidence, before it was attacked by the defendant, Romayne vs. Duane, cited from MS. in Wharton’s Digest, 251.

As at present advised, in a case like this, standing on the pleas of not guilty and justification, we incline to the opinion that, consider *448 ing the nature of the action and the object of the evidence, the defendant ought to be permitted to give evidence of the general bad character of. the plaintiff, but not of particular acts of misconduct. We will hear the evidence, therefore, and if it turn out to be important in the case, we will allow this question to be revived in some form that will give the plaintiff the benefit of a fuller and better consideration of it.

Cunen, for plaintiff. Ridgely, for defendant.

The attempt, to impeach plaintiff’s character failed, and he had a verdict for $720.

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Per Curiam:

J. M. Clayton, Chief Justice.

There is much doubt on the question now presented. It seems to be unsettled in England, but it has there been made generally to depend on the plea whether of not guilty, or of a justification. But here an additional difficulty arises; because, contrary to the. English practice, double pleading is allowed ; and a defendant may plead, and in this case has pleaded, both the general issue and justification.

It is laid dowm in Phillips’ evidence, and also by Starkie, that evidence of the plaintiff’s bad character is, on general principles, clearly admissible in mitigation of damages; unless the defendant by his pleading, puts in issue the truth of the charge. 1 Phill. Ev. 146; 2 Stark. Ev. 216. But it seems that even the first branch of this rule has been shaken, if not changed. Roscoe’s Evid. 3S, 299. Jones vs. Stevens, 11 Price, 235. Not only has the rule been denied, but the exception has not always been admitted, for-in Kirkham vs. Oxley, Heath, judge, in an action of slander imputing larceny allowed the defendant, who had justified, to go into evidence of the plaintiff’s bad character in mitigation of damages. And this decision is cited with approbation in the note to Stark. Ev. 217.

In South Carolina, evidence of the plaintiff’s general-bad character is admitted in the action of slander. 2 Nott & M‘Cord, 511; 1 ib. 268. In New York the question is unsettled, the court having divided upon it. 1 Johns. Rep. 46. The Massachusetts courts have inclined to admit such evidence. 3 Pick. 376; 3 Mass. Rep. 553. In Pennsylvania the evidence appears to be admissible; as the plaintiff in an action for a libel, where there was a plea of justification, was permitted to set up his character by evidence, before it was attacked by the defendant, Romayne vs. Duane, cited from MS. in Wharton’s Digest, 251.

As at present advised, in a case like this, standing on the pleas of not guilty and justification, we incline to the opinion that, consider *448 ing the nature of the action and the object of the evidence, the defendant ought to be permitted to give evidence of the general bad character of. the plaintiff, but not of particular acts of misconduct. We will hear the evidence, therefore, and if it turn out to be important in the case, we will allow this question to be revived in some form that will give the plaintiff the benefit of a fuller and better consideration of it.

Cunen, for plaintiff. Ridgely, for defendant.

The attempt, to impeach plaintiff’s character failed, and he had a verdict for $720.

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2 Del. 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waples-v-burton-delsuperct-1838.