BROO:KS 11. CARTEB.
The motion should be granted i and if, under the federal practice, a judgment cannot now be directed for the defendant on the point reserved, a new trial will be ordered.
CARTER et aZ.
(Oircuit Oourt, 8. D. Georgia. March 21,1888.)
AssAULT AND BATTERY-CIVIL ACTION-PLEA
m MITIGATION OB' DAMAGE8. In an action of assault and battery defendl\nt pleaded in mitigation of damages that plaintiff had promulgated a slander upon defendant's sister, and that after getting plaintiff in his power, and giving him ample opportunity to clear himself by naming the originator of the slander. which plaintiff failed to do, defendant thereupon horsewhipped him. Hetd. that such a plea is not good upon demurrer. the facts alleged not amounting to a justification.
At Law. Damages for assault and battery. Demurrer to plea. S. A. Ried, Casey J. Thornton, and Hardeman &: Davis, for plaintiff. Dupont. Guerry, for defendants. SPEER, J. This action was brought against the aetendants for assault and battery. The allegations of the plaintiff were that the defendant Barnum induced the plaintiff to call with him on one Searles. Complainant consented to go,and, when the carriage-shop of Searles was reached, the plaintiff was surrounded by the four defendants, three of whom threatened him with weapons, Barnum compelled him to pUll off his coat, and cruelly whipped him with a buggy whip. The plea of Barnum averred that on the day of the assault he, Barnum, came to town, and received a notefroIl1 one Everett stating that the plaintiff had ,?romulgated a slander upon his (Barnum's) sister. Barnum went immediately to see the plaintiff, and requested him to go with him to .searles' shop, whereupon the plaintiff went. When Searles and the plaintiff were confronted at the shop, the plaintiff charged that Searles had made the defamatory remarks. Searles denied it, and asserted that the plaintiff had made them. The plea states that the plaintiff thereupon admitted that he had in fact made the statement. The defendant then demanded of the plaintiff his "author," and plaintiff failed to give any author. By this the pleader meant, the author or originator of the slander. Defendant then told plaintiff that he would give him five minutes in which to give the author, but in fact he gave him .a quarter of an hour, and then told him he would give him five minutes more, if he desired it, and plaintiff replied, "it was not any use, if he was going to whip him, to whip,"-upon which the punishment was then inflicted. The defendant also states that he offered to go with plaintiff anywhere he desired to go, and to allow him to bring any friends he desired, when plaintiff declined both offers. By this it is presumed that the pleader meant that the· defendant offered to go out
FEDERAL REPORTER. ,,_. ,..'"
and fight a.pitched, bqttlewith the plaintiff' or with facts were set, up in mitigation of damages. Theylea was de.murred to. It is difficult to perceive any principle of those laws whI6h are made for the preservation of social order upon which this plea can be sustained, and the court cannot sanction a plea of this character, however much it may sympathize with the alleged indignation of the defendant. The facts would not amount to complete justification, and where facts offered to be used for mitigation of damages as establishing a less aggravated case against the defendant do not.amount to a justification, and merely tend to palliate the character of the offense, and mitigate the wrong, they are admissible in evidence in reduction of damages undel' the general V. Ray, 1;Mas8. 12; 2 Add. Torts, 1392. It is true,however, that the defendant' cannot give in evidence in reductiOt:t .of cl¥tages the acts and declatationsof plaintiff at a different time, or ariy antecedent facts. which are hot fairly to be considered as part of one and the same transaction with the assault though they may have been eyer so irritating orprovoking. Sedg. Dam. 555. The provocait to be given in evidence;in mitigation of damages must be so recent and immediate as to induce . a presumption done was ,committed under the immediate influence of the feelings and passiQD9: excited by it.. ,1d. ;..Mitchell v· State, 41 Ga. 527. Here the defendaJ:).t sought the plaintiff, and. demanded an explanation. Time. was taken for deliberation and for consultation. Searles was interviewed,' and then the defendant gave the 25 or 30 minutes in which t() makea:declaratiQn by whic11 he could avoid the cowhiding with which the defenda.nt threatened him. The plaintiff finally stated that it was no USI' to. wait lUly . longer, ll:nd the defendant proceeded. to lay on the cowhide.. No.courtwhich respects order can permit a deliberate avowal Qf .this character by a .defendant to be regarded as a plea. He assumed.tQ jp,dgethe wrong, he imagined had been done a member of his family. This was not his province, but the province of the courts of the country.' He became the executioner of his own sentence. He did it with the utmost deliberation. It is this disposition to ignore the law that proCluC6s so many cases of mob violencej so many of flagrant and dangerous social disorder.. If courts give even a partial sanction to this rude and method of redressing real or imaginary wrongs,. it would be to license crime,and uproot the settled principles of public justice. MitcheU V. State, 41 Ga. 536.. It 'is competent for the defend., ant to have the benefit of any mitigating circumstance which is a Pllrt of the transaction complained of, and which would tend to excuse or justify the, aotj·.but if the facts recited here could be held to mitigate so cruel and deliberate an assault, it would be difficult to con.ceive of a case where a party could be punished for usurping the prerogatives of the courts and tI;l.king the law i.nto,his own hand. The plea nowhere ass4;lrts that the plaintiff originated the slander; Qut if he did, the defendant had no authority to deliberately try him, and then deliberately beat him. The demurrer is sustained.
BUSTER 11. lIUMPHREYS.
N. H.& H. R.
(Circuit Oourt, 8. D. Net/} York.' March 27,1888.)
JUDGMlIlNT--RENlHTION AND ENTIty-POWER Oll' CLERK.
The clerk of a United States circuit court has no authority to enter ment for any other sum than the verdict and statute call for.
At Law. On motion to set aside judgment. The action was for damages for personal injuries causing death of intestate. The state statute provides that in entering judgment upon verdict in such caUses the clerk shall add to the amount of the verdict interest, from the date of the death. Plaintiff having filed a wah-er with the clerk, that officer entered judgment for the amount of verdict without interest. . Ohaa. H. Noxoo, for complainant. Wm. E. Barnett, for defendant.
LACOMBE, J. The clerk should not have entered judgment for any !:lum o.ther than what the verdict and !Stll-tute called for, and his action in that respectniust be setaside. The court undoubtedly possesses the power to regulate the amount of its own judgments, even though by so doing the recovery is reduced below the amount to which appellate jurisdiction attaches, (Bank v. Redick, 110 U. S. 224,3 Sup. Ct. Rep. 640, and cases cited;) but that function is to be exercised by the court, not by the clerk. The judgment entered upon the verdict is set aside, with leave to plaintiff to move before the judge who tried the case tor permission to enter judgment without interest or costs.
BUSTER 11. HUMPHREYS d
w: D. Missouri, w: D.
RAILROAD COMPANIES-ACCIDENTS AT CROSSINGS-UNAVOIDABLE ACCIDENT.
Where a freight train breaks in two, and the engineer's signal of "down breaks" frightens plaintiff's team, which runs between the two sections, and is killed. but there is no evidence that the train broke by fault of defendant. or that the.re was negligence in discovering the break.· or stopping the rear section, there is negligence on neither side, and no recovery can be had.
At Law. Action by plaintiff, C. W. Buster, against defendants, Solon Humphreys and Thomas E. Tutt, receivers of the Wabash, St. Leuis & Pacific Railroad, to recover damages for stock killed. C.' W. Fteeman, for complainant. GetYrge S. Grover and John W. Henry, for defendants.