Bell v. . Hansley
Supreme Court of North Carolina
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.
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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,…
1Opinion of the CourtNash, 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 tice 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…
Also in this document: Per curiam.
2Cited by10 opinions
- Lewis v. . FountainSupreme Court of North Carolina · 1915
- Allen v. . SalleySupreme Court of North Carolina · 1919
- Ange v. Woodmen of the WorldSupreme Court of North Carolina · 1917
- State v. AdamsSupreme Court of North Carolina · 1980
- Palmer v. Winston-Salem Railway & Electric Co.Supreme Court of North Carolina · 1902
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