This was an action of trespass, assault, and battery, tried before Ellis, Judge, at the fall term, 1855, of New Hanover Superior Court.
The plaintiff proved the assault and battery; and there was evidence tending to show a mutual affray and fighting by consent.
But his Honor was of opinion, and so advised the jury, that notwithstanding the fact that the parties had mutually assented to an affray, the plaintiff was, nevertheless, entitled to recover; but that the fact relied on as a defence was proper to be considered by the jury in mitigation of damages. The defendant excepted to these instructions.
Verdict for the plaintiff. Judgment and appeal.
Nash, C. J. This case presents the question whether, when two men fight together, thereby committing an affray, either is guilty of an assault and battery upon the other. Justice Buller, in his Nisi Prius, at page 16, says, each does commit an assault and battery upon the other, and that each can maintain an action for it. He refers to a case at Abingdon, Boulter v. Clark, when Serjeant Hayward appeared for the defendant, and offered to prove that the parties fought by consent and insisted that this, under the maxim volenti non fit injuria, applied. Parker, Chief Baron, denied it, and said, “the fighting being unlawful, the consent of the plaintiff to fight would be no bar to his action, and that he was entitled to a verdict.” Mr. Stephens, in his Nisi Prius, 211, lays down the same doctrine: “If two men engage in a boxing match, an action can be sustained by either of them against the other, if an assault be made; because the act of boxing is unlawful, and the consent of the parties to fight cannot excuse the injury.”
Per Curiam. Judgment affirmed.[[24]]
Section II
Imprisonment
Note by Thorpe, C. J., 1348.
Reported in Year Book, Liber Assisarum, folio 104, placitum 85.
There is said to be an imprisonment in any case where one is arrested by force and against his will, although it be on the high street or elsewhere, and not in a house, &c.[[25]]
GENNER v. SPARKES
In the King’s Bench, Trinity Term, 1704.
Reported in 1 Salkeld, 79.
Genner, a bailiff, having a warrant against Sparkes, went to him in his yard, and, being at some distance, told him he had a warrant, and said he arrested him. Sparkes, having a fork in his hand, keeps off the bailiff from touching him, and retreats into his house. And this was moved as a contempt. Et per Curiam. The bailiff cannot have an attachment, for here was no arrest nor rescous. Bare words will not make an arrest; but if the bailiff had touched him, that had been an arrest,[[26]] and the retreat a rescous, and the bailiff might have pursued and broke open the house, or might have had an attachment or a rescous against him; but as this case is, the bailiff has no remedy, but an action for the assault; for the holding up of the fork at him when he was within reach, is good evidence of that.[[27]]