thing by the said P. above by pleading alledged, ought not to be barred from having his said action thereupon against him, because, he says, that the said P. of his own proper injury, without such cause as by him the said P. as above by pleading alledged, made an assault upon the said C. and beat, wounded, and evilly treated the said C. in manner and form as the said C. above complains against him: And this he prays may be inquired of by the country; And the said P. does so likewise. 555. CHARLES VINER. A General Abridgment of Law and Equity. (2d ed., 1793, Vol. XX, pp. 427, 437.) "Trespass." 1. If a man assaults me, and I can escape with my life, it is not lawful for me to beat him. 2 H. IV, 8 b, Curia. 2. (So) If a man assaults me, I am bound to go from him as much as I can, and not presently to beat him. 19 H. VI, 32. 3. (But) If a man assaults me, I am not bound to attend till the other has given a blow; but I may beat him before, in my defence, for perhaps I shall come too late after. 2 H. IV, 8 b, Curia. 1. In trespass of menacing, it is no plea de son tort demesne, &c. for if a man assaults another, it is not lawful for the other to say that he would kill him, and to menace him of life and member, but if he, upon whom the assault is made, flies, and the other pursues him so near that he cannot escape, or if he has him under him upon the ground, or has chased him to a wall, hedge, water, or dike, so that he cannot escape him, there it is lawful for him to say, that if he will not depart, he in salvation of his life will kill, &c. Per PRISOT, quod non negatur. And Brooke says such manner of form is good se defendendo in an indictment upon the death of a man se defendendo. Brooke, Trespass, pl. 28, cites 33 H. VI, 18. 556. JONES v. TRESILIAN KING'S BENCH. 1670 2 Keb. 597 In trespass of assault the defendant pleads son assault demesne; the plaintiff replieth that in defence of his body and possession molliter insultum fecit on the defendant who was riding up against him standing in his close. And per Curiam: It's ill; but molliter manus imposuit is good; & nil capit per billam, for a party cannot justify beating otherwise. 557. COCKCROFT v. SMITH KING'S BENCH. 1706 2 Salk. 642 (Full Reprint) In trespass for an assault, battery, and maihem, defendant pleaded son assault demesne, which was admitted to be a good plea in maihem. But the question was, what assault was sufficient to maintain such a plea in maihem? HOLT, C. J., said, that WADHAM WYNDHAM, J., would not allow it if it was an unequal return; but the practice had been otherwise, and was fit to be settled; that for every assault he did not think it rea sonable a man should be banged with a cudgel; that the meaning of the plea was, that he struck in his own defence: that if A. strike B., and B. strikes again, and they close immediately, and in the scuffle B. maihems A., that is son assault; but if upon a little blow given by A. to B., B. gives him a blow that maihems him, that is not son assault demesne. POWELL, J., agreed; for the reason why son assault is a good plea in maihem, is, because it might be such an assault as endangered the defendant's life (a). [Editor's note.] (a) In the principal case HOLT directed the jury to find for the defendant. In Ld. Raymond, the first assault is stated to be tilting the form on which the defendant sat; in Rep. A. Q. (11 Mod.) that the plaintiff ran his finger towards the defendant's eye. The maihem was biting off the plaintiff's finger. 558. JAMES BOSWELL. Life of Samuel Johnson, LL.D. (1791. ed. Dent, Vol. II, p. 174). He [Dr. Johnson] talked of going to Streatham that night. Taylor. "You'll be robbed, if you do; or you must shoot a highwayman. Now I would rather be robbed than do that; I would not shoot a highwayman." Johnson. "But I would rather shoot him in the instant when he is attempting to rob me, than afterwards swear against him at the Old Bailey, to take away his life, after he has robbed me. I am surer I am right in the one case, than in the other. I may be mistaken as to the man when I swear: I cannot be mistaken if I shoot him in the act. Besides, we feel less reluctance to take away a man's life when we are heated by the injury, than to do it at a distance of time by an oath, after we have cooled." Boswell. "So, Sir, you would rather act from the motive of private passion than that of a publick advantage." Johnson. "Nay, Sir, when I shoot the highwayman, I act from both." Boswell. "Very well, very well. There is no catching him." Johnson. "At the same time, one does not know what to say. For perhaps one may, a year after, hang himself from uneasiness for having shot a highwayman. Few minds are fit to be trusted with so great a thing." Boswell. "Then, Sir, you would not shoot him?" Johnson. "But I might be vexed afterwards for that too." The late Duke of Montrose was generally said to have been uneasy on that account; but I can contradict the report from his Grace's own authority. As he used to admit me to very easy conversation with him, I took the liberty to introduce the subject. His Grace told me, that when riding one night near London, he was attacked by two highwaymen on horseback, and that he instantly shot one of them, upon which the other galloped off; that his servant, who was very well mounted, proposed to pursue him and take him, but that his Grace said, "No, we have had blood enough: I hope the man may live to repent." 559. McNATT v. MCRAE SUPREME COURT OF GEORGIA. 1903 117 Ga. 898, 45 S. E. 248 ERROR from Superior Court, Montgomery County; D. M. ROBERTS, Judge. Action by R. F. McRae against James McNatt. Judgment for plaintiff, and defendant brings error. Affirmed. Garrard & Meldrim, W. B. Kent, and E. D. Graham, for plaintiff in error. Twiggs & Oliver, for defendant in error. LAMAR, J. There was an affray in which both plaintiff and defendant were seriously injured. McRae was cut with a knife, the tendon of his forearm severed, permanently disabling him. McNatt was beaten and bruised about the head, and otherwise badly hurt. Each claimed that he had interposed as a peacemaker, and that the other had done him great bodily harm, each prosecuted the other, but with what result does not appear. Subsequently McRae sued McNatt for assault and battery, and McNatt filed an answer, which was the equivalent of the general issue, beside which he files a plea of set-off for the injury done him in the same fight. At the trial he withdrew the general denial, admitted the cutting, and justified on the ground that the same was done in self-defence. The trial resulted in a verdict for McRae, whereupon McNatt moved for a new trial. The motion was overruled, and he excepted. Both parties being injured, and one having brought suit, and the other having filed a plea of set-off, we have the rather unusual instance of cross-actions for damages growing out of the same affray. While this is unusual, it is by no means legally impossible; for, even though the party first assaulted is entitled to recover for the battery, he may have used excessive force, or beyond what was necessary for his defence, and thereby so put himself in the wrong as to become liable to the defendant, although the defendant was also liable to him. Or the plaintiff may even have made the first assault without justification, and rendered himself liable to the defendant; but if McNatt, with a deadly weapon, made an unnecessary counter assault, he would be liable for the damages thus inflicted. The criminal law (Penal Code, 1895, § 73) furnishes constant instances of this class of cases. The original assailant may retire, decline further contest, and thereby put himself in a position where, in order to save himself from serious bodily harm, he may lawfully take the life of the party originally in the fight. It was, we think, to this principle that the judge referred when he charged that, McNatt having filed pleas of justification and set-off, the burden was upon him, but, if McNatt was injured, and "it was without fault on his part," the jury should determine "how much the defendant would be entitled to recover." . . . The Court was simply instructing them to award damages to McNatt, if, at the time he was injured, he was in the right. Whether he began the difficulty or not, whether he had cut McRae in self-defence or not, yet if, at the time he was beaten, he was without fault, declining further contest, had offered to retire, was on the ground helpless, unable to defend himself, or was otherwise in a position where McRae had no legal right to assault or beat the defendant, he could recover from the plaintiff for damages then inflicted, even though McNatt had been originally in the wrong. ... The judgment of the Court below is therefore affirmed. All the Justices concur. 560. GOLDSMITH'S ADMINISTRATOR v. JOY SUPREME COURT of VERMONT. 1889 61 Vt. 488, 17 Atl. 1110 TRESPASS for an assault and battery, alleged to have been committed by the defendant upon the plaintiff's intestate. Plea, the general issue, and trial by jury at the December Term, 1887, POWERS, J., presiding. Verdict and judgment for the plaintiff. Exceptions by the defendant. The defendant did not deny that he made the assault. It appeared, however, that at the time and just before, hot words had passed between the parties, and the defendant claimed that he committed the wrong under the influence of the passion induced by the insulting and unjustifiable language of the plaintiff and that this fact should be considered by the jury in reduction both of the actual and exemplary damages. The defendant was the superintendent and general manager of the construction of a system of water-works in the city of Bennington, and in that capacity had in his employ about one hundred men, mostly or all for-` eigners. It was in reference to the treatment of these men by the defendant that the plaintiff used the alleged insulting language. The plaintiff was suffering from Bright's disease at the time of the affray and subsequently died of it. It was claimed that his death was materially hastened by the assault. The Court instructed the jury to award the plaintiff actual damages at any rate, no matter what the provocation which led to the assault might have been. Upon the subject of exemplary damages the charge was as follows: "Now, then, in respect to that question, mere words made use of by one person to another are no legal excuse whatever for the infliction of personal violence. It makes no difference how violent the language used may be, no man has the right to use personal violence upon another when he is induced to simply by the use of words. That is no defence to the action. But when you come to the question of whether a particular case is one that deserves the awarding of exemplary damages, then you are to consider all the circumstances in the case, the provocation, if any, that the defendant had, and everything that is calculated on the one hand to aggravate his act, and on the other hand to palliate this act, are to be considered." Martin & Archibald, J. L. Martin and J. C. Baker, for the plaintiff. . . . No fact or circumstance can be given in mitigation of actual damages unless they furnish a legal justification, and are therefore a defence to the cause of action. . Batchelder & Bates and W. B. Sheldon, for the defendant. When the act is wanton and malicious, that fact may be shown in enhancement of exemplary damages. When the wrong is provoked by the plaintiff, that fact may be considered in reduction of actual damages. . . . The opinion of the Court was delivered by TYLER, J. The Court instructed the jury that there was no defence to the claim for actual or compensatory damages; that words were no legal excuse for the infliction of personal violence; that no matter how great the provocation, the defendant was bound in any event to answer for these damages. It is a general and wholesome rule of law that whenever, by an act which he could have avoided and which cannot be justified in law, a person inflicts an immediate injury by force, he is legally answerable in damages to the party injured. The question whether provocative words may be given in evidence under the general issue to reduce actual damages in an action of trespass for an assault and battery has undergone wide discussion. The English cases lay down the general rule that provocation may mitigate damages. The case of Frazer v. Berkeley, 7 C. & P. 789, is often referred to, in which Lord ABINGER held that evidence might be given to show that the plaintiff in some degree brought the thing upon himself; that it would be an unwise law if it did not make allowance for human infirmities; and if a person commit violence at a time when he is smarting under immediate provocation, that is matter of mitigation. TINDAL, Ch. J., in Perkins v. Vaughan, 5 Scott's N. R. 881, said: "I think it will be found that the result of the cases is that the matter cannot be given in evidence where it amounts to a defence, but that where it does not amount to a defence, it may be given in mitigation of damages." Linford v. Lake, 3 H. & N. 275; Addison on Torts, s. 1393, recognizes the same rule. In this country, 2 Greenleaf on Ev., s. 93, states the rule that a provocation by the plaintiff may be thus shown if so recent as to induce a presumption that violence was committed under the immediate influence of the passion thus wrongfully excited by the plaintiff. The earlier cases commonly cited in support of this rule are Cushman v. Ryan, 1 Story, 100; Avery v. Ray, 1 Mass. 12; Lee v. Woolsey, 19 Johns. 241, and Maynard v. Berkeley, 7 Wend. 560. The Supreme Court of Massachusetts has generally recognized the doctrine that immediate provocation may mitigate actual damages of this kind. . . . In Trall v. Knapp, 17 Ia. 468, the Court said: "The clear distinction is this: contemporaneous provocation of words or acts are admissible, but previous provocations are not, and the test is, whether, the blood has had time to cool."" ... In Moreley and Wife v. Dunbar, 24 Wis. 183, Dixon, Ch. J., held, that notwithstanding what was said in Birchard v. Booth, 4 Wis. 85, circumstances of provocation attending the transaction, or so recent as to constitute a part of the res gestae, though not sufficient entirely to justify the act done, may constitute an excuse that may mitigate the actual damages; and, where the provocation is great and calculated to excite strong feelings of resentment, may reduce them to a sum which is merely nominal. But in Wilson v. Young, 31 Wis. 574, it was held by a majority of the Court that provocation could go to reduce compen |