¶1—The judge charged the jury: “A man who goes where others are quarreling or fighting and says, in substance, to either, that, if he wants to fight, to fight him, or words to that effect, and is struck with the fist by the one thus addressed, he cannot be said to fight in necessary self-defense.”
¶2The testimony in the district court was to the effect that the plaintiff had been choking an old man of seventy years of age, and was endeavoring to renew his attacks on the old man, but was restrained by the bystanders, when the defendant addressed the plaintiff in words as stated in the charge. Under such circumstances we believe the charge was erroneous. The defendant had a right to make use of such language as was well calculated to cause the plaintiff to reflect upon the impropriety of an assault upon an old man, and at the same time assure the plaintiff that he would defend himself if wantonly attacked. "We do not deem it necessary to extend our remarks, since the plaintiff has departed this life, and upon a reversal of the judgment the suit will abate in the district court. Agreeably to the uniform practice of this court, which is a quasi law, we could not have jurisdiction, in consequence of the death of the party defendant. And as by the common law actions of a purely personal nature die with the person, and a legal representative cannot appear and defend, the suit necessarily abates.
¶3Ordered accordingly.