#### Judge Trogden v. Jacob Henn.

Assault and battery—self-defense. A person is liable in an action of trespass for an assault and battery, although the plaintiff makes the first assault, if he uses more force than is necessary for the defense of his person.

Appeal from the Circuit Court of Edgar county; the Hon. Oliver L. Davis, Judge, presiding.

Messrs. Trogden & Capps, for the appellant.

Messrs. Sellors & Dole, for the appellee.

Per Curiam:

This was an action of trespass, brought by

Jacob Henn against Judge Trogden and Paul Burkey, to recover damages for an assault and battery committed upon his person by the defendants. A trial of the cause before a jury resulted in a verdict and judgment in favor of the plaintiff, against the defendant Trogden, for the sum of $300, to reverse which he appealed.

The evidence shows, the parties had a quarrel on a public highway, resulting in a fight, in which the defendant struck the plaintiff several heavy blows; his head was severely bruised and his nose broken. From the injuries, the plaintiff was confined to his house some two or three weeks, and paid out, for medical attendance, $85. Whether the first assault was made by the plaintiff or defendant, the evidence is conflicting. That fact, however, is not important, as it is apparent that the defendant used more force than was required in the necessary defense of his person, and must be held liable for the damage inflicted. The evidence is ample to sustain the verdict of the jury.

We perceive no error in the ruling of the court on instructions. The first and second, given for the plaintiff, to which objection has been made, could not prejudice the rights of the defendant, or mislead the jury. The court refused instruc*238tions 1, 2, 3, 4, 5 and 6, asked by defendant, but this was not error, as, under the evidence, all the law involved in the case, on behalf of defendants, was contained in one instruction given in their behalf, by the court, on its own motion, which was as follows:

Cl The court instructs the jury, for the defendants, that if they believe, from the evidence, that the defendants, or either of them, were assaulted by the plaintiff, and that the one or ones assaulted resisted such assault, and, in doing so, used no more force than was necessary to successfully resist such assault, they will find the defendants not guilty.”

We are of opinion the law was fairly given to the jury, and the evidence sustains the verdict. The judgment will, therefore, be affirmed.

Judgment affirmed.