The action was for an alleged assault and battery. The answer was a genera! denial. The acts proved were sufficient to constitute an assault and battery, if done without the consent of the plaintiff, and against her will. The defense was that the plaintiff consented to whatever force was used, and invited it by words, acts and conduct, generally. The defendant was a witness in his own behalf, and testified as fully as he desired to in regard to all that took place between them, on the occasion of the alleged assault. The plaintiff was also fully cross-examined by the defendant’s counsel, as to what was said and done between them, on the occasion referred to, and also in regard to her relations with other men, and her conduct towards them. The defendant then offered to show, by his own testimony, as independent evidence, that the plaintiff while in his house, on other occasions previous to the day in question, had made various lascivious approaches to him, and been guilty of various acts of a lewd and immodest character, with him, and towards him; and also her conduct with one Vincent, at the defendant’s, house, at night, on some previous occasion. The evidence was offered on three grounds r 1, in mitigation of damages; 2, as affecting the-question in issue, whether the defendant had assaulted the plaintiff; and, 3, as affecting the credibility of each party. The evidence was objected to, and excluded, and the defendant’s counsel excepted. The action was tried upon the theory, and the jury were so charged, that if the plaintiff invited the acts complained of and assented to them, and the defendant went no farther than she was willing he should go, and desisted as soon as she objected to his going any farther, the action could not be maintained. Let us see now whether the evidence offered was competent for either of the purposes for which it was offered. 1. It was not competent to mitigate damages! This was distinctly held in Corning v. Corning, (2 Seld, 97.) Jewett, J. who delivered *138the opinion of the court, says, at page 104 of the case: “ The damages could not be mitigated hy evidence that she was dissolute in her conduct. She was entitled to the same measure of damages as she would - have been if she had sustained a good character for virtue.” One of the judges only, (Foot,) dissented on the ground that the evidence of the character and conduct of the plaintiff were admissible in mitigation of damages. The evidence offered in that case, was of the same character as that offered here, and for the purpose of mitigating damages. So, too, in Lee v. Woolsey, (19 John. 319,) it was held that insults and slanders, on a previous occasion, could not be given in evidence in mitigation of damages, nor as explanatory of the transaction. If the passion has had time to cool, and there has been time for' reflection, the previous conduct cannot be given in evidence for any purpose.
2. Was the evidence competent by way of tending to show that the defendant had been innocent on the,occasion of the alleged assault, and had not committed it ? Most clearly not. This is a civil and not a criminal action, and the rule of evidence is the same precisely for either party. The evidence had no'legitimate tendency to show that the plaintiff invited ‘or encouraged the defendant’s acts, on the day in question. She might have invited or encouraged similar acts on other days, and the evidence offered might have proved that fact, but it could raise no legitimate inference that the acts were either invited or encouraged on the day and occasion in question. Suppose, in an action of this character between two men, the defense should be that the assault complained of was in an encounter, in which the plaintiff" had challenged the defendant to fight with him, and they had mutually agreed to fight. That, if true, would be a good defense, in the absence of excessive violence. But, suppose further, that the defendant should offer to prove such challenge and agreement, on the occasion in question, hy showing that *139the plaintiff had done so on a previous occasion. The evidence would be palpably incompetent; and the same rule must apply here. In each case the fact to be made out is the invitation and consent, and it is perfectly immaterial whether the encounter in regard to which the assent is sought to be established, is of an amatory or a pugnacious character. The consent in the one case must be established by evidence of the same character that would be necessary to establish it in the other. There cannot be one rule where two males are parties, and another where a female is a party against a male. Or take this case upon the other side. Suppose the plaintiff, by way of proving that the defendant had assaulted her on the occasion in question, had offered to prove that he had laid hands upon her on some previous occasion, without her consent and against her will; I think no one will pretend that such evidence would have been competent, by way of establishing the fact, if objected to. Or, still further, suppose the offer had been to show that the defendant had, on other occasions, assaulted other females in the same way, as evidence bearing upon the issue. These illustrations must show, I think, that the evidence was wholly inadmissible upon the issue. The same rule must be “sauce” for the male as well as the female, when they are before the court as parties. There is no rule of evidence by which a fact in issue can be proved, by proving that a similar fact existed on another and different occasion. Such a rule has no place in the common law.
3. Was the evidence proper by way of affecting the credibility of the plaintiff injuriously, or of sustaining that of the defendant ? This question is settled against the defendant in Corning v. Corning, (supra.) Particular instances, or a particular course of conduct, are alike incompetent by way of impeachment. We are referred to the rule in criminal cases, where the guilty intent, is an essential element in making out the offense. It is held, and *140the rule seems to be firmly established, that in indictments for rape, and for an assault with intent to commit a rape, the prosecutrix may be examined as to previous voluntary sexual connection between her and the prisoner, and also that independent evidence may be given of such previous co'nnection, and also that the prosecutrix is a common prostitute. (The People v. Abbot, 19 Wend. 192.) I do not propose to question the rule in a criminal case, or to criticise at any length its soundness. But suppose the same evidence should be offered against the accused, that he was in the habit of assaulting other females with intent to ravish, for the purpose not only of proving the assault, but the criminal intent. All men would see. its injustice at once and exclaim against it. But this rule has never yet been applied in a civil action for an assault, where the intent is in no respect in issue, and I trust never will be so applied. There is no reason for making such an exception to the general rules of evidence in a civil case merely because a female happens to be a party, and a prejudice 'whether just or unjust, is sought to be raised, apd arrayed against her. The law has no prejudices, and does not yield to vulgar clamor. Whatever may be the character of a female in regard to chastity, she has still rights which men should be compelled to respect. They are not beyond the pale of the law, and do not become the lawful prey of a licentious man, even if they are prostitutes. If in a civil action between a male and female, the licentious life, or particular instances of licentious conduct, may be given in evidence against the female upon any issue in the action, we should allow the same kind of evidence against the male, for the same purpose, or else we poise the scales of justice with unequal and dishonest weights, and mete out justice in partial and unfair measures. Morality, however desirable and praiseworthy, can never be advanced, or upheld, by a perversion of the rules of law for that purpose. Much less *141should we permit it to be assumed, without proof, that any party to an action in court is a person of immoral character.
[Monroe General Term, September 7, 1868.It is claimed that the evidence was erroneously excluded for the reason that the plaintiff, in her complaint, alleged that the assault and battery complained of was committed with the intent on the part of the plaintiff to ravish. But this is no reason, whatever, for its admission. The intent was not the gravamen of the action in any sense or degree. It was no part of the issue to be tried. It was a mere civil action, and the cause of it did not rest in the intent of the plaintiff at all, as will be seen upon a moment’s careful and,candid consideration. The very act of battery implies an unlawful intent, and it is not the subject of proof. It is quite immaterial, so far as the cause of action is'concerned, what the particular intent was, if the act was not justifiable. In this respect it is like an action for a false and fraudulent warranty upon a sale of property. The action being upon the contract, the scienter alleged, is of no importance, and need not be proved; nor is it, indeed, the proper subject of controversy by way of evidence upon the trial. (Ross v. Mather, 47 Barb. 582.) It seems to me very clear that the rule contended for cannot stand and prevail, upon any such distinction. The distinction is a seeming and not a real one, as time and more careful attention will, I think, clearly show. I am of the opinion, therefore, that the evidence was properly excluded, and that a new trial should be denied,
Hew trial granted.
£. D. Smith, Johnson and J. G. Smith, Justices.]