
    Stout v. Wren.
    From Randolph.
    A man shall not recover a recompense for an injury received by liis own consent, provided the act from which the injury is received be lawful: but where two fight by consent, and one is beaten, he may recover damages for the injury, because fighting is an unlawful act.
    The Plaintiff and Defendant had a quarrel and agreed to fight. After retiring for that purpose, Defendant asked Plaintiff “ if he would clear him of the law.” Plaintiff answered, “ yesand Defendant beat him. Plaintiff made no resistance during the beating, and according to the testimony of some, was too much intoxicated to know what he was doing: other witnesses thought otherwise.
    The Court instructed the Jury, that if the Plaintiff Was so much intoxicated as not to know what he was doing, they ought to give him a verdict; but if he was not ignorant of what he was about, he was not entitled to recover, having assented to the fight.
    The Jury found for the Defendant. A new trial having been refused, and judgment rendered, Plaintiff appealed.
   Taxxor, Chief-Justice.

It is equally reasonable and correct, that a man shall not recover a recompense for an injury received by liis own consent •, but the rule must necessarily be received with this qualification, that the act from whence the injury proceeded be lawful. Hence, in those manly sports and exercises which are thought to qualify' men for the use of arms, and to give tliemv strength and activity, if two played by consent at cudgels, and one hurt the other, no action would lie. But where in an action for assault and battery, the Defendant offered to give in evidence that the Plaintiff and he boxed by consent, from whence the inquiry-proceeded, it was held to be no bar to the action : for as the act of boxing is unlawful, the consent of the parties to fight could not excuse the injury—Boulter v. Clark, (Buller, N. P. 16.) The consequence of this distinction is apparent also in the law of homicide ; for if death ensue from innocent and allowable recreations, the case will fall within the rule of excusable homicide ; but if the sport be unlawful, and endanger the peace, and death ensue, the party killing is guilty of manslaughter—(Fost. 259.) It is laid down in Mather v. Ollerton, (Comberb. 218,) that if one license another to beat him, such license is void, because it is against the peace ; and the Plaintiff recovered a verdict and judgment.

The case .was very fairly put to the Jury, as to the evidence of the Plaintiff’s intoxication •, but I think the law was misconceived in stating to them, that if the Plaintiff was sober, and assented, he was not entitled to recover. There must be a new trial.

H itt,, Judge.

Upon principle unconnected with municipal law, or policy, I doubt how far a person is entitled to recover damages, after having agreed to take his chance in a combat, and after the event had proved the miscalculation he made upon his own strength: considering it merely as a violation of a private right, I should say, volenti non fit injuria.

Where the State is a party by way of indictment, the consent of the party does not stand in the way of a conviction, because the fine goes to the State for the injury done her, by a breach of the peace. However, the authority in Buller’s N. P. 16, is the other way, and .1 am inclined to believe has policy for its support: for these reasons> I acquiesce and agree that the rule for a new shall be made absolute,

Henderson, Judge, concurred.  