
    Jacaway vs. Dula.
    In an action for an assault and battery, the defendant oflhred to prove in mitigation of damages, that the day before the assault and battery was committed, the plaintiff said that the defendant had stolen his money: It did not appear that the defe~ndant had come to the hn~wledge of what the plaintiff had said immediately before the battery. Held, that the evidence was inadmis~ible.
    This was an action for an assault and battery, committed by the defendant below, upon the plaintiff. On the trial it appeared from the evidence that Jacaway immedi-arely before he committed the assault and battery, asked Dula if he was the man who said that he, the defendant, bad stolen his money; to which Dula made no reply. The defendant then offered to prove in mitigation of damages, that the day before the assault and battery was committed, the plaintiff had said that the defendant had• stolen his money. This evidence being objected to, was rejected by the court, because it did not appear that the defendant had come to the knowledge of what the plaintiff had said, on the day upon which the assault and battery was committed.
    .IVI. Tat~l, for the plaintiff in error,
    contended that the judgment ought to be affirmed because a provocation, not offered at the time a personal injury was inflicted, is no justification or excuse, and that it ought not to mitigate the offence. I-Ic cited 3 Starkie's Ev~ 1461: Avery vs. Ray, 1 Mass. Rep. 12.
    H. L. Turney, contra,
    insisted that the provocation, though not given at the instant of the assault, yet if it were so recent as to excite or arouse the passions, although it is not a justification, ought to he received in mitigation of damages. Suppose a man's wife or daughter, whilst he was from home, had been assaulted, or an injury of a more serious ebaracter attempted to be inflicted on them in bis absence, which, upon his return he was informed of, and he was unable to seethe perpetrator for a day or two; but when he did see him, he chas-tisedhim as he deserved; is it possible, orean it seriously be contended, that the provocation which led to the act should not be heard by the jury in order to estimate the damage. If a man in cold blood, without any provocation, were to severely beat another, he ought to suffer to the utmost extent of the law; but if the battery was superinduced by the act of the other party, who had violently assaulted or beaten or abused his wife or child, surely the same measure of punishment ought not to be inflicted upon him. The judgment should be reversed.
   G-REEN, J.

delivered the opinion of the court.

We think the court did right in the rejection of the evidence offered. Provocations are admissible in evidence to mitigate damages in an action of assault and battery, but they must be given immediately previous to the assault. If the blood has time to cool after the provocation and before the battery is committed, evidence of the provocation is inadmissible for any purpose. 3 Starkie, 1461: 1 Mass. Rep. 12. The circuit court, therefore, went far enough when it only restricted the defendant to proof that the provoking fact had come to his knowledge on the day he committed the battery. This is extending the rule farther than the authorities warrant. It would, as the court say in the above case of Avery vs. Ray, (1 Mass. 12,) be emphatically going too far, and contrary to all rule, to permit the evidence which was offered in this case. The court would be in favor of admitting evidence of a provocation which might come to the knowledge of a party immediately before the battery, although the facts thus provoking him may have previously existed. This would be within the' reason of the rule. The blood would be as much heated by the communication to a parly of. the fact that an injury had been previously inflicted on his character, or his property, as though he had witnessed the injurious conduct. The law would, therefore, equally regard the frailty of his nature, and extenuate the violence of his conduct in the one case as in the other. But if it were admitted that former provocations should be given in evidence to mitigate damages, where would the court stop. If after the blood has had time to cool, and the passions have so subsided as that deliberation is restored, a party may offer such provocation in mitigation of a battery, he may, upon the same principle, go back to any distance of time for a provocation to extenuate the injury he inflicts. Such a rule would be of the most dangerous tendency in society. Men naturally love to take vengeance into their own hands, and all the restraints of the law are insufficient effectually to suppress the outbreakings of their passions. But establish the rule which is contended for by the plaintiff in error, and the laws wdl never be resorted to for the redress of injuries by the strong; but they will take upon themselves to chastise those who offend them at pleasure, and rely upon proof of the provocation to mitigate the damages. It would also hold out temptations to a party to procure, by false testimony, proof of a former provocation,

Judgment affirmed,  