The object of the plaintiff in this suit was, to recover damages for an injury to his marital rights. Any testimony 'which tended to shew, tiiat tie had sustained no injury, was admissible; such as connivance at her wantonness or suffering her to prostitute herself; for it is a maxim of law, that volenti non fit injuria. So turning her out of doors, or associating with lewd women, shews clearly, that her society was of no value to him. But all evidence of this sort was admitted, by the judge. Duberley v. Gunning, 4 Term Rep. 651.
It is a well settled rule, that evidence in civil suits must bs confined to the points in issue ; and that the character of a party cannot be enquired into, unless put in issue. 1 Phill. Ev. 145.
In the case before us, the plaintiff’s general character was not in issue ; but his character as a husband was. The object of the testimony offered and rejected, was, to evince that the wife of a drunkard might'be debauched with impunity. With equal propriety, in an action for an assault and battery, or any other action of trespass, might the defendant, in mitigation of damages, prove, that the plaintiff was a drunkard, and therefore, he should have nothing for the breaking of ids bones, or the taking away or destruction of his property.
But the counsel for the defendant have contended, that in an action of this kind, damages are properly cncreascd or diminished, by the rank or quality of the plaintiff; and in support of their claim, they cite a remark of the late Judge Buller. Bull. N. P. 26. And this dictum has been echoed from Butter to Blackstone, from Blacksone to Espinasse, and from Espinasse to Swift. 3 Bla. Com. 140. Esp. Dig. 343. (ed. 1794.) 1 Swift’s Pig. 501. And it is worthy of remark, that these learned compilers do not quote a single authority in support of this doctrine. It may, therefore, be doubted, even in England, and a fortiori in this country, where it is considered a self-evident truth, that all men are created free and equal. (a) “I cannot imagine,” says an eminent American jurist, “ that tha *183rank and condition in life of a man invokes his bad or good character, in a inora! point of view. These terms refer to a high or low state in life, to riches and poverty, to occupation and profession, and not to moral character. I believe the moral character of a plaintiff' was never given in evidence to enhance damages in an action of this nature; and I think, if it were offered, it ought to be rejected as irrelevant. Indeed, this evidence of the..rank and condition in life of the plaintiff, in the sense of the terms which 1 suppose to be their true meaning, is very uncongenial with our political institutions. Rank and condition in life merely, should perhaps neither en-crease nor diminish damages, in an action of slander, under this government" (b) If such evidence, then, is not admissible in slander,where character is in issue, surely it ought not to be received in an action of trespass for a personal injury ; for the pains of a broken bone and the pangs of a broken heart for the loss of a beloved wife, are as accute in the poor labourer as in his lordly master- “ The poor beetle that wa tread upon, feels as great a pang as when a giant dies.”
For these reasons, I would not advise a new trial.
The other Judges were of the same opinion.New trial not to be granted.
Deel. Ind. sect. 1.
Per Cheves, J. in Buford v. McLung, 1 Nott & McCord, 268. 277,8.