satory damages only so far as these should be given for injury to the feelings, DIXON, Ch. J., however, adhering to the rule in Moreley v. Dunbar, that it might go to reduce all compensatory damages. But in Fenelon v. Butts, 53 Wis. 344, and in Corcoran v. Harron, 55 Wis. 120, it was clearly held that personal abuse of the assailant by the party assaulted may be considered in mitigation of punitory, but not of actual damages, which include those allowed for mental and bodily suffering; that a man commencing an assault and battery under such circumstances of provocation is liable for the actual damages which result from such assault. In Donnelly v. Harris et al., 41 Ill. 126, the Court instructed the jury that words spoken might be considered in mitigation of damages. WALKER, Ch. J., in delivering the opinion of the Supreme Court remarked:

"Had this modification been limited to exemplary damages it would have been correct, but it may well have been understood by the jury as applying to actual damages, and they would thus have been misled. To allow them the effect to mitigate actual damages would be virtually to allow them to be used as a defence. To say they constitute no defence, and then say they mitigate all but nominal damages, would, we think, be doing by indirection what has been prohibited from being done directly. To give to words this effect, would be to abrogate, in effect, one of the most firmly established rules of the law."...

If provocative words may mitigate, it follows that they may reduce the damages to a mere nominal sum and thus practically justify an assault and battery. But why under this rule may they not fully justify? If in one case, the provocation is so great that the jury may award only nominal damages, why, in another, in which the provocation is far greater, should they not be permitted to acquit the defendant and thus overturn the well settled rule of law, that words cannot justify an assault. On the other hand, if words cannot justify they should not mitigate. A defendant should not be heard to say that the plaintiff was first in the wrong by abusing him with insulting words and therefore, though he struck and injured the plaintiff, he was only partly in the wrong and should pay only part of the actual damages.

If the right of the plaintiff to recover actual damages were in any degree dependent on the defendant's intent, then the plaintiff's provocation to the defendant to commit the assault upon him would be legitimate evidence bearing upon that question; but it is not. Even lunatics and idiots are liable for actual damages done by them to the property or person of another, and certainly a person in the full possession of his faculties should be held liable for his injuries to another unless done in self-defence or under reasonable apprehension that the plaintiff was about to do him bodily harm. The law is that a person is liable in an action of trespass for an assault and battery, although the plaintiff made the first assault, if the defendant used more force than was necessary for his protection, and the symmetry of the law is better preserved by holding that the defendant's liability for actual damages begins with the

beginning of his own wrongful act. It is certainly in accordance with what this Court held in Howland v. Day & Dean, 56 Vt. 318, that "the law abhors the use of force either for attack or defence and never permits its use unnecessarily."

The instructions to the jury upon this branch of the case were in substantial accordance with the law as above stated.

We find no error in the charge and the judgment is affirmed.1

SUB-TOPIC B. BY TRESPASS TO PERSONALTY

561. PERRY v. PHIPPS

SUPREME COURT OF NORTH CAROLINA. 1849

10 Ired. 259

APPEAL from the Superior Court of Law of Ashe County, at the Spring Term, 1849, his Honor, Judge ELLIS, presiding.

The action is trespass for killing a dog, the property of the plaintiff;

1 [PROBLEMS:

The defendant was riding on horseback, and the plaintiff ran up and seized the bridle. The defendant told him to "loose hold," and on his not doing so, struck him on the head and face with the riding-whip, bringing blood. Was this excusable? (1858, Rowe v. Hawkins, 1 F. & F. 91.)

Sir Andrew Aguecheek (who has fought a duel). "Let him alone. I'll have an action of battery against him, if there be any law in Illyria; though I struck him first, yet it's no matter for that." (Twelfth Night, IV, 1.) Is this good law?

Mrs. McCormick and defendant were members of the same church. On a certain occasion Mrs. McCormick went to the church for some purpose, and, upon finding it locked, applied to defendant's wife for the gate keys. These Mrs. Schtrenck refused her, whereupon she went to the gate, broke the lock with a rock, and made an effort to get in. Defendant, Mr. Schtrenck, then arrived upon the scene. A quarrel arose between them with reference to breaking the lock, which eventuated in an assault by each upon the other, and in which each received serious personal injuries. After they were separated, Mrs. McCormick went to her husband and told him of what had occurred. Thereupon he went to Schtrenck and made an assault upon him, seriously injuring him. In an action by McCormick for battery, can Schtrenck plead M.'s battery by way of set-off? or counter-claim? (1910, McCormick v. Schtrenck, Tex. Civ. App., 130 S. W. 720).

ESSAYS:

Joseph H. Beale, Jr., "Homicide in Self-Defence."

(C. L. R., III, 526.) Joseph H. Beale, Jr., "Retreat from Murderous Assault." (H. L. R., XVI, 567.)

NOTES:

"Assault and Battery: insult preventing recovery." (C. L. R., VI, 581, 598.) "Retreating to wall' in felonious assaults." (H. L. R., IX, 214; X, 129, 382; XI, 63; XVI, 567.)

"Belief in danger of serious bodily harm." (H. L. R., XIII, 223.) "Affray provoked by abusive language.' (H. L. R., XVII, 63.)

"Self-Defence: Acts justifying killing in self-defence." (M. L. R., II, 727.)]

and the pleas are: (1) that the dog was a nuisance and that any person had a right to kill him, and (2) that the defendant killed the dog in defending himself from an attack on him by the dog, and was obliged to kill him in order to prevent the dog from biting and worrying the defendant. On the trial, evidence was given that the plaintiff and defendant were neighbors and in the habit of visiting each other; and that, upon a visit to the plaintiff's in the day-time, the defendant entered the plaintiff's yard, when the dog, being loose, attacked the defendant and would probably have bitten him, if he had not been prevented by two of the daughters of the plaintiff, who lived with him, called off the dog, and also beat him with a pole and drove him away; and that, after the dog had been so driven away and was going under a house in the yard, at the distance of ten steps from the defendant and the plaintiff's daughters, the defendant with a gun, which he brought with him, contrary to the request of the plaintiff's daughters, shot the dog and killed him. On the part of the defendant, evidence was given that a pathway passed through the defendant's land, near the house, along which persons frequently went to church and to mill, in order to cut off an angle in the public road, and that the dog was in the habit of attacking persons in the pathway. On the part of the defendant evidence was further offered, that at three different times the dog had attacked persons off the plaintiff's land; but the evidence was rejected.

The presiding judge instructed the jury, that the plaintiff had a right to keep the dog on his own premises, however fierce, unless he was a nuisance, and that there was no evidence that this dog was a nuisance, and that therefore the defendant was not justifiable in killing him, unless in defence of himself; and that, if the dog had retreated as stated, and was still retreating, the jury might infer therefrom, that the defendant did not shoot the dog to protect himself. The jury found for the plaintiff, and from the judgment the defendant appealed. Boyden, Clarke and H. C. Jones, for the plaintiff.

Bynnum and Craige, for the defendant.

66

RUFFIN, C. J. (1) We doubt not that a dog may be a nuisance, so as to authorize any person to kill him, as if he be mad and at large; for, in such a state, he is no longer mansuetae naturae," and the consequence of a bite from time to time, to either man or beast, may be so dreadful and so general, as to justify his destruction as soon as possible. But dogs are in many respects useful, and, with many persons, favorite animals; and we are not aware that fierceness, merely, and attempt to bite, or even the actual biting of one or more persons, have ever been held to empower another person, at a different time, to kill them, and especially to go to the owner's yard for that purpose....

(2) Then, as to the second plea, the instructions appear to the Court to be unexceptionable. A person is not bound to stand quietly and be bitten by a dog, nor to give him what might be called a fair fight among men. But if a fierce and vicious dog be allowed to go at

large, and he runs at a person, as he lawfully gets to a house, or in passing along the road, apparently to set on the person, or, for example, on the horse he is riding, it seems but reasonable the person should protect himself or his horse, by killing the dog; for, although a man has a right to keep a dog for the protection of his house and yard, yet he ought to keep him secured, and not let him loose and uncontrolled at such hours and in such places, as will endanger peaceable and honest people engaged in their lawful business. If therefore this dog were one of the kind supposed and the defendant had shot him as he came at him, and when he had reasonable grounds to think that the dog could not be restrained by the owner or his family, and would bite him, we should hold that he did no more than he had a right to do. But when the plaintiff's family were at home, and, by their immediate interference and commands and punishment, governed and drove away the dog, so as not only to prevent him from biting the defendant at that time, but also to save the defendant from all danger then, by driving the dog away, the killing of the dog, after that, and against the urgent entreaties of the family, could have been only the pretence, and not on the reality of protecting the defendant from an attack at that time; and the circumstances were properly left to the jury, as evidence on which they might find that the defendant did not act on the defensive. Per Curiam.

Judgment affirmed.

Topic 2. Defence of Third Persons

SUB-TOPIC A. BY BATTERY

562. CHARLES VINER. A General Abridgment of Law and Equity. (2d ed., 1793, Vol. XX, p. 425.) "Trespass" (D). 1. The baron may justify the battery of another, in defence of his feme; for she is your (his) chattel. 19 H. VI, 31 b, 66.

2. The master may justify the battery of another, in defence of his servant; for the servant is in a manner his chattel. 19 H. VI, 31 b.

3. The servant may justify the battery of another in defence of his master. 11 H. VI, 16, quaere; 14 H. VI, 2 b.

563. DOWNS v. JACKSON

COURT OF APPEALS OF KENTUCKY. 1910

128 S. W. 339

ACTION by Theodore Jackson against J. L. Downs. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Theodore Jackson, suing by his next friend, instituted this action against appellant, J. L. Downs, to recover damages for assault and

battery. Appellant defended on the ground that he assaulted and struck appellee in the necessary defence of his son Joe. The jury awarded appellee damages in the sum of $400. From the judgment based thereon, this appeal is prosecuted.

age.

The alleged assault and battery took place on August 3, 1909, under the following circumstances: Theodore Jackson, who was at that time about sixteen years of age, was employed as a clerk in the grocery of James L. Cox in Taylorville, Ky., and boarded with his employer. Appellant lived directly across the street. He had two sons, Roy and Joe. Roy was sixteen years of age, and Joe thirteen years of Theodore Jackson started down the street on his wheel. Joe, appellant's younger son, asked Jackson to loan him the wheel. Jackson replied that the wheel was broken. Joe then placed his hand on the wheel, and Jackson pushed him away. Joe cursed Jackson, and the latter struck him. At that time Joe started to run, and Jackson began throwing rocks at him. Joe called for help. His older brother, Roy, hearing his cry, jumped over the fence for the purpose of assisting Joe. He threw one rock at Jackson. The latter then began throwing rocks at Roy. Roy jumped behind a telephone post. When Roy ran to Joe's assistance, appellant's wife ran to the house, and stated that there was a fight going on. Appellant rushed from his home and went toward the street. As he did so, he picked up a stick. When he reached the street, Jackson was still throwing rocks, and was in the act of stooping down for another rock when appellant struck him with the stick he had in his hand. Appellant struck Jackson only once. The latter then told appellant not to strike him any more, as he would not hurt Joe.

L. W. Ross and Willis & Todd, for appellant. R. W. Gilbert and Samuel K. Baird, for appellee.

CLAY, C. [after stating the facts as above:]

1. During the progress of the case, appellant offered an amended answer, pleading that his act in striking Jackson was in the necessary defence of his two sons, Joe and Roy. This amended answer was offered for the reason that it developed during the trial that Joe had run away and was probably out of danger. Appellant, however, believed that Jackson was still throwing at Joe, when, as a matter of fact, he was then throwing at Roy. Appellee insists that the Court did not err in refusing to permit the amended answer to be filed, because appellant stated in his evidence that he believed Roy had gone down town, and, if that was the case, appellant could not have been acting in the necessary defence of Roy. It seems to us, however, that it was simply a case of mistaken identity. Appellant did believe that he was acting in the necessary defence of one of his sons. That he was mistaken as to which one it was, should not deprive him of such defence as he had. As the evidence tended to show that Joe was practically out of danger, and as the original answer simply alleged that appellant acted in the necessary defence of his son Joe, it is mani