Dole v. Erskine , 35 N.H. 503 ( 1857 )

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 renconter between two individuals, is not entitled to maintain an action for an assault and battery, if he uses so much personal violence towards the other party, exceeding the bounds of self-defence, as could not be justified under the plea of son assault demesne, were he a party defendant in a suit.

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 assaidt 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. r 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 set-off; 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, tyc 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 fjecomes a trespasser. And wherein consists the difference, except it be that of time, between a trespass committed by bins 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 bo 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 soom 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 subjects of set-off is entirely clear. I

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; tho 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 defendants’ views. It is remarkable that such a plea cannot be found in any of the hooks, if the defence has over been regarded by the courts as good law.

The decision of the commissioner in declining to admit Chase as a witness was correct. In prosecutions against two or more, the court, where there is no evidence against one, or where it is very slight, may permit a verdict to be taken in his favor, on which judgment may be entered, and he may afterwards be used as a witness. 1 Greenl. Ev., secs. 868, 879.

But the same power does not rest in a commissioner. He cannot discharge a party or render a judgment in his favor, nor admit him as a witness, only according to the special provisions of the act.

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.