x999-1" type="majority"> Beach, J.

The motion to set aside the verdict was properly denied. The witnesses, Taylor and Freedman, testified to a joint assault upon the plaintiff by both of the defendants, although they differed as to which began the assault. These were the only noncombatant eye-witnesses, and the jury may well have considered that their story was more likely to be accurate on this point than that of the participants in the fray.

The first verdict exonerating Mitchell Stock, and .-assessing the whole damages against Bane Stock, was plainly wrong in point of law. Up to the time when the plaintiff was hit on the head by a flatiron in the hands of Mitchell Stock, no serious damage had been done, and if the jury meant to accept Mitchell’s plea of justification on the ground that he acted solely in defense of his father, the latter could not be held responsible for the consequences of Mitchell’s act. On the other hand, if the jury meant to find that Mitchell was not justified in striking the plaintiff with a dangerous weapon, the verdict violated the rule as to the liability of joint tort-feasors. 'Under these circumstances, it *241 was the right and duty of the court to return the jury to a second consideration of their verdict.

The defendants’ brief argues the first and fifth assignments of error, relating to the refusal to accept the first verdict, as if the action of the court was equivalent to setting the verdict aside. That is not so. Until a verdict is accepted by the court, it is no verdict at all. Our statute (§ 756) authorizes the court, if it judges the jury have mistaken the evidence or the law, to return them to a second and to a third consideration, and no more. Within these'limits the action of the court in refusing to accept a verdict is necessarily a matter of judgment and discretion. If the jury persists in its verdict after a third consideration, the court must accept the verdict, and may then set it aside on motion in a proper case.

The defendants claim that the court ought to have accepted the verdict as to Mitchell Stock, and recommitted only the question of damages against Bane Stock. This claim assumes that the jury must have found that Mitchell’s share in the assault was justified as a reasonable defense of his father. But if this were so, it is difficult to account for the assessment of damages against Bane Stock, which evidently included damages due to the injury inflicted by Mitchell. It was at least possible that the jury had framed their verdict on the theory that since Bane Stock started the trouble he ought to be held respcrsible for all the consequences, whether Mitchell’s share in the assault was justified or not. We think the court was right in refusing to accept the verdict and in returning the jury to a second consideration under additional instructions.

The exceptions to these additional instructions are based on the claim, already rejected, that the first verdict necessarily involved a finding that Mitchell Stock acted in reasonable defense of his father, and that there *242 was no reasonable ground for believing that the jury-had mistaken the law except in regard to the amount of damages to be assessed against Bane Stock. Even if this were true, the court was entirely right in recommitting the whole case to the jury, and leaving it to them to recast their verdict in accordance with the law and the evidence.

It is also objected that the court usurped the function of the jury, and wronged Mitchell Stock, by telling the jury, in substance, that it was admitted that Mitchell had hit the plaintiff on the head with a flatiron or other instrument. But since Mitchell Stock himself had testified that he hit the plaintiff on the head with some object, afterward identified without controversy as a flatiron, the criticism seems overstrained.

The exceptions to the remarks of the court in returning the jury to a second consideration are overruled.

The assignments of error for refusing to accept the second verdict, and for alleged errors in the additional instructions to the jury, are based on the theory that the jury intended by its second verdict to find that two separate and distinct assaults had been committed, one by the father and the other by the son, each being assessed for his separate assault.

If this were so, the verdict was irresponsive to the issues, for the complaint alleges a joint assault, and on this ground alone the court would have been justified in refusing to accept it. It is, however, capable of a construction consistent with the complaint, namely, that the jury found that the defendants had joined in the assault, and yet attempted to apportion the damages between them according to the injury inflicted by each. In view of the form of the verdict and the scope of the issues, the court could not well have taken any other view of it, and was right in refusing to accept it, and in telling the jury that if they meant to find that *243 the defendants had jointly assaulted the plaintiff, their verdict should be against both defendants for a lump sum.

There is no error.

In this opinion the other judges concurred.

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