#### GEORGE W. BELL vs. WILLIAM M. HANSLEY.

One may recover in an action for assault and battery, although ho agreed to fight with his adversary; for such agreement to break the peace being void, the maxim volenti non fit injuria does not apply.

Tins 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 assaiilt and battery; and there was evidence tending to show a mutual affray and fighting by consent.

The defendant called upon his Honor to instruct the jury, ^ that if the parties mutually assented to, and participated in, a | breach of the peace, the plaintiff could not recover.

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 a defense, was proper to be considered by the jury in mitigation of damages. The defendant excepted to these instructions.

Yerdict for the plaintiff. Judgment and appeal.

Heicl,.foT plaintiff.

W. A. Wright, for the defendant.

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. Jus*132tice Puller in liis 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 wyjtvria, 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.