#### S. F. Merrifield et al., Administrators, v. Vesselius Davis.

1. Assault and battery—when defense that, was committed in attempt to preserve peace, not available. In the absence of a plea of molliter manus imposuit, proof that the assault and battery in question took place in an effort to preserve the peace, is inadmissible as a substantive ground of defense, but is competent notwithstanding the absence of such plea in diminution of damages.

Action in trespass for assault and battery. Error to the Circuit Court of DeWitt county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the November term, 1905.

Reversed and remanded.

Opinion filed November 27, 1906.

Lemon & L&mon, Ingham & Ingham and Edward J. Sweeney, for plaintiffs in error.

Herrick & Herrick, for defendant in error.

Mr. Justice Baume

delivered the opinion of the court.

This was a suit in trespass brought by defendant in error against Truman Mason to recover damages for an alleged assault and battery. There was a verdict and judgment in the court below against Mason for $1,200, and plaintiffs in error, as his administrators, prosecute this- writ of error to reverse such judgment.

To the plaintiff’s declaration in the usual form the defendant pleaded the general issue and a special plea son assault demesne to which special plea plaintiff replied de injuria.

The evidence on behalf of plaintiff tended to show that upon the occasion of the alleged assault and battery plaintiff was in the store of one George Lighthall, in Wapella, and while there he had some trouble with Lighthall; that defendant, who was also in the store, then struck plaintiff on the head with a cane inflict*163ing the injuries complained of. Upon the trial counsel for' defendant sought to show, as a part of the res gestae, all that occurred' in the store between the plaintiff and defendant and said Lighthall at the time of the alleged assault and battery, and particularly, that the plaintiff was then making, an assault upon Lighthall and that the defendant as a private citizen, interfering to prevent a breach of the peace, separated the plaintiff and Lighthall, whereupon plaintiff made an assault upon the defendant, and that the defendant in repelling such assault struck plaintiff with a cane.

The court refused to permit the defendant to adduce evidence either upon direct or cross-examination, as to what occurred between plaintiff and Light-hall. In the absence of á plea of molliter manus imposuit by defendant, proof of the altercation between plaintiff and Lighthall and that defendant intervened to preserve the peace, was incompetent for the purpose of establishing a substantive ground of defense in bar of the action. Olsen v. Upsahl, 69 Ill. 273; Fortune v. Jones, 30 Ill. App. 116. Excluding any such evidence, the jury was justified in finding that the defendant assaulted the plaintiff maliciously and without provocation, and awarding punitive damages to plaintiff, and we are of the opinion that the verdict represents in part an award of such damages. While the evidence was incompetent under the pleadings, for the purpose of establishing a substantive ground of defense, it was competent under the plea of the general issue, as a part of the res gestae, to be consid-, ered by the jury in mitigation of exemplary damages, and its exclusion was error. Donnelly v. Harris, 41. Ill. 126; Roth v. Smith, 41 Ill. 314; Farwell v. Warren, 51 Ill. 467.

It is urged on behalf of plaintiffs in. error that the court erred in giving, refusing and modifying certain instructions, but an examination of the same (discloses *164no error in that regard. For the error in excluding competent evidence the judgment is reversed and the cause remanded.

■Reversed and remanded.