majority"> MaoRae, J.:

There was no exception to the charge of his Honor upon the first issue. The testimony of all thé witnesses to the assault was that after the plaintiff was being carried off by the policeman, his arms held closely to his sides from behind so as to render him powerless even to defend himself, the defendant followed him some ten or, according to defendant’s own testimony, fifteen feet, and struck him in the face, inflicting very serious injury.

The contention was as to the damages upon the second issue. The first exception was to the charge that if the jury believed the defendant’s statement as to the facts in this case, the plaintiff was entitled to some damages.

There was no material conflict in the testimony; that of defendant himself put the matter in the most favorable *330 light for him. While it has been often held that, where there is conflicting testimony, it is improper for the Court to select one of the witnesses and instruct the jury that if they believe him they will find according to the direction of the Court, this is not at variance with the common practice in the trial of criminal actions for the -Judge to tell the jury that if they believed the defendant’s own statement they should find him guilty; or in civil actions, where there is no conflict in the evidence, to put the case to the jury upon the admissions of a defendant in his own testimony.

We take from defendant’s brief Anderson v. The S. B. Co., 64 N. C., 399, which holds that in case there are a number of witnesses who contradict each other, it would be improper generally for the Court to set up one of them and instruct the juiy that if they believe him they must find their verdict in a particular way; and in Brem v. Allison, 68 N. C., 412, where it is said that there may be cases where it would be proper, but generally it is safer to put the case to the jury upon all the evidence, with proper explanations. In this case his Honor said in eifect that if the jury believed the evidence in the most favorable light in which it could be considered for defendant, the plaintiff was entitled to some damages, and in this we concur without hesitation.

The defendant has no right to complain of the second prayer of plaintiff which was given by his Honor to the jury, that the plaintiff was entitled to recover even though the jury believed he entered into the fight willingly; this proposition was correct in the abstract, but there was no fight, there was nothing to indicate the willingness of plaintiff to fight, unless it be the testimony of defendant, “I called White a liar, he said I was another, and I struck him. He took out his knife and my son struck him; then the policeman took him and started across the street with him. When he had gotten some fifteen feet away some one called out *331 that White had his knife out, and I then got a stick and struck him with it.” According to all of the other witnesses testifying to the assault, the plaintiff never opened his knife.

It will be observed that the words used in the instruction that the plaintiff is entitled to recover were upon the second issue, upon which defendant contended that plaintiff was not entitled to recover damages. In the sense used they differ entirely from the same words as referred to in that line of cases where it is held that, upon issues submitted, it is not proper for the Judge to instruct the jury that the plaintiff is or is not entitled to recover, because that was not the question involved in the issue, but was for the Judge to determine upon their findings of fact in response to the issue.

The defendant’s counsel in their brief earnestly contend that if the plaintiff were a trespasser and had no right to remove the property, in no event can he recover more than actual damages; indeed, that the aggravation and provocation on the part of the plaintiff should reduce it to nominal damages. But it appears by all the testimony that there was a contention between plaintiff and defendant as to the true ownership of the property, and the plaintiff at the time of the assault upon him was in possession of it. If it had appeared that the plaintiff was a trespasser upon defendant’s property at the time of the first assault by defendant and his son, the second and subsequent violent and unprovoked blow in the face given by defendant with a stick, while plaintiff was held by the arms and unable even to defend himself, was, to say the least, “attended with circumstances of aggravation and oppression.”

There is no evidence that plaintiff fought willingly or made an attempt to strike defendant. We cannot, at this late day, open the question as to the right to recover exem *332 plary damages in North Carolina in proper cases; it has been too long settled for us now to be called upon to cite authorities or enter upon a discussion of the reason upon which the principle is based.

We are much inclined to doubt whether the juiy intended to give exemplary damages in the present case; their moderation would seem to have kept them within the strict bounds of compensation for the injuries inflicted.

We think his Honor fairly instructed the jury; it was not practicable for him to array the testimony and present it with the law bearing upon it in its different aspects, for it was all one way: it disclosed a violent assault without provocation. At this distance, and by the light of the testimony, it seems to us that the officer of the law arrested the wrong man, deprived him of his first right of self-defence, and permitted the defendant to strike “the old man” in the face with a stick while he was wrongfully held in custody.

What we have said disposes of all the exceptions.

No Error.

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