#### Frank A. Henning v. Jacob Probst.

1. Excessive Damages—Remittitur.—Where the damages allowed by a jury are excessive, a remittitur is proper as to the excess.

Trespass Yi et Arrnis.—Appeal from the Circuit Court of Kendall County; the Hon. Clark W. Upton, Judge, presiding. Heard in this court at the May term, 1896.

Affirmed.

Opinion filed July 30, 1896.

Hall & Haight, attorneys for appellant.

Benj. F. Herrington, attorney for appellee.

Opinion per Curiam.

This is an appeal from a judgment in favor of appellee for $863.75, recovered against appellant in an action of trespass vi et a/rmis.

There was a conflict in the testimony as to the manner in which the assault was made, as to the provocation and as to the extent of violence used; but there is no question as to the defendant making the assault, and that such assault was without sufficient provocation.

There is some question as to the accuracy of the plaintiff’s third instruction, but we do not regard it as material. Nor for the giving of that would we feel justified in reversing the judgment. There was no error committed in refusing instructions.

We think the damages allowed by the jury excessive, but as appellee has entered a remittitur for $400 we affirm the judgment for $463.73, and direct the clerk' to tax against appellee the costs of this court.