But it is said that inasmuch as the defendant admitted the injury to have been inflicted by him, it should be presumed to have been done wrongfully or carelessly, and that the onus Jay upon him to show the contrary. This is undoubtedly a sound general principle, and the plaintiff is entitled to the full benefit of it; but it was for the jury to determine, upon the facts and circumstances before them, whether or not the defendant was in the wrong. In order to arrive at a decision upon this question the jury had a right to take into consideration the childhood of the parties, the friendly relations existing between them, the conduct of both on their return home, but more especially the repeated admissions of the plaintiff that the defendant was not to blame. The latter fact was very material, and must and should have produced a strong impression upon the minds of the jury in the absence of the testimony of Clementine, because the natural inference to be drawn from the declarations was that the plaintiff had received the information upon which they were based from his daughter's account of the transaction, and had frankly disclosed it though the admissions operated against his own interest. These admissions, taken in connection with the other facts and circumstances in the case, were undoubtedly decisive of the true character of the transaction, and they conduct us satisfactorily to the same conclusion arrived at by the jury, that the misfortune happened without fault on either side, and that it was one of those unhappy accidents to which children of the tender age of these parties are not unfrequently exposed in their little innocent plays and amusements a result rather to be deplored than punished.1 New trial denied. 1 Cf. Peterson v. Haffner, 59 Ind. 130; 26 Am. R. 81, holding that a boy 13 years old, who in sport but wantonly threw a piece of mortar at A, and hit and hurt his eye, is liable; also cases in note, 26 Am. R. 83. EASTMAN, J. The only reported decision that we have been able to find, where the question presented was the same as that raised in the case before us, is that of Elliott v. Brown, 2 Wendell, 499. In that case it was held that the party first attacked, in a personal rencounter between two individuals, is not entitled to maintain an action for an assault and battery, if exceeding the bounds of self-defence, as could not be justified våre he uses so much personal violence towards the other party, If the rule laid down in that case is sound law, this suit cannot be sustained, for the commissioner to whom the action was referred has reported, that, although the defendant committed the first assault, yet the plaintiff used more force than was necessary or justifiable in repelling that assault. The ground upon which the decision in Elliott v. Brown was placed, is, that there cannot be a recovery in cross actions for the same affray, but that the party who first recovers may plead that recovery in a suit against himself. No authority is cited to sustain that position, and it appears to us that it is not well founded. If an assault is made upon a party, it may be repelled by force sufficient for self-defence, even to the use of violence; and if no more force is used than what is necessary to repel the attack, the party assaulted may, under the plea of son assault demesne, show the facts and have judgment. To this extent the law is well settled. (2 Greenl. Ev. sec. 95, and authorities cited.) If the affray stops there, the party first assailed, being justified in what he has done in self-defence, may have his action for the injury that he has received. He has himself done nothing more than what the law permits; but the other party, in commencing and following up the assault, is liable not only for a breach of the peace, but for all the personal injuries that he has inflicted. But if the person assaulted uses excessive force, beyond what is necessary for self-defence, he is liable for the excess, and the facts may be shown under the replication of de injuria. (Curtis v. Carson, 2 N. H. 539; Hannen v. Edes, 15 Mass. 349; Cockcroft v. Smith, Salk. 642; Bul., Nisi Prius, 18.) Up to the time that the excess is used, the party assaulted is in the right. Until he exceeds the bounds of self-defence he has committed no breach of the peace, and done no act for which he is liable; while his assailant, up to that time, is in the wrong, and is liable for his illegal acts. Now, can this cause of action which the assailed party has for the injury inflicted upon him, and which may have been severe, be lost by acts of violence subsequently committed by himself? Can the assault and battery, which the assailant himself has committed, be merged in or set off against the excessive force used by the assailed party? Unless this be so, and the party first commencing the assault and inflicting the blows, and thus giving to the other side a cause of action, can have the wrong thus done and the cause of action thus given, wiped out by the excessive castigation which he receives from the other party, then each party may sustain an action; the one that is assailed, for the assault and battery first committed upon him, and the assailant, for the excess of force used upon him beyond what was necessary for self-defence. We think that these are not matters of setoff; that the one cannot be merged in the other, and that each party has been guilty of a wrong for which he has made himself liable to the other. There have, in effect, been two trespasses committed; the one by the assailant in commencing the assault, and the other by the assailed party in using the excessive force; and, upon principle, we do not see why the one can be an answer to the other, any more than an assault committed by one party on one day can be set off against one committed by the other party on another day. The only difference would seem to consist in the length of time that has elapsed between the two trespasses. In a case where excessive force is used, the party using it is innocent up to the time that he exceeds the bounds. of self-defence. When he uses the excessive force, he then for the first time becomes a trespasser. And wherein consists the difference, except it be that of time, between a trespass committed by him then, and one committed by him on the same person the day after? In Elliott v. Brown it is conceded that both parties may be indicted and both be criminally punished, notwithstanding it was there held that a civil action can be maintained only against him who has been guilty of the excess. If this be so, and each party can be criminally punished, then each must have been guilty of an assault and battery upon the other; and if thus guilty, why should not a civil action be maintained by each? It would seem that the fact that both are indictable shows that each is in the wrong as to the other, and that each has a cause of action against the other, and that such cause of action may be successfully prosecuted, unless one is to be set off against the other. That torts are not the subject of setoff is entirely clear. We arrive, then, at the conclusion that the causes of action existing in such cases cannot be set off, the one against the other, nor merged, the one in the other, but that each party) may maintain an action for the injury received; the assailed party, for the assault first committed upon him, and the assailant for the excess above what was necessary for self-defence. This rule, it appears to us, will do more justice to the parties and more credit to the law than the other, for by it the party who has commenced the assault, and who has been the moving cause of the difficulty, is made to answer in money, instead of having his assault merged in the one which he has provoked, and which has been inflicted upon him by his antagonist. We think, also, that the view of the case which we have taken derives much strength from the fact that no precedent can be found of any pleading sustaining the defendant's views. It is remarkable that such a plea cannot be found in any of the books, if the defence has ever been regarded by the courts as good law. * * * * * Our opinion therefore is, that, upon the facts stated, the plaintiff would be entitled to judgment. But according to the provisions of the transfer, the case must be sent to the Common Pleas for further proceedings.1 RODGERS, with horse and carryall, was carried over the Chucky river by Smith in his ferry-boat. Smith was the keeper of a public ferry. When over Smith demanded ferriage, which Rodgers said was already paid: on this a dispute occurred, and Smith told him he should not go on till he paid the ferriage. Some other conversation ensued, when Rodgers paid the ferriage demanded. Rodgers was detained ten or fifteen minutes. An indictment was found against Smith for an assault and false imprisonment. Rodgers stated on the trial before R. M. Anderson, presiding judge, and a jury of Cocke County, that Smith had not touched his bridle or his horse; that he made no effort to strike or touch his person or his horse, and that he made no threats of personal violence, but that he was afraid of a difficulty with Smith. Smith told Rodgers after he had paid the charge, that if he had not paid it he had determined to have put his carryall and horse back into the boat, and to have carried them back. 1 A violent attack is sufficient excuse for going beyond mere self-defence and reasonably chastising assailant. (People v. Pearl, 76 Mich. 207 (1889); 42 N. W. 1109.) Neither provoking language nor assault on former occasion by plaintiff will justify defendant's assault. (Gizler v. Witzel, 82 Ill. 323.) Assault may be made to defend, but not to obtain possession of one's property. (Churchill v. Hulbert, 110 Mass. 42; Briston v. Burr, 120 N. Y. 427.) |