Bell v. . Hansley

48 N.C. 131

• Court: Supreme Court of North Carolina
• Decided: December 5, 1855
• Status: Published

Opinion

Nash, 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 fighting being unlawful, the consent of the plaintiff to fight would be no bar to his action, and that he was entitled to a verdict.” Mr. Stephens in his Nisi Prius, 211, lays down the same doctrine—“ If two men engage in a boxing-match, an action can be sustained by ¡either of them against the other, if an assault be made; because the act of boxing is unlawful, and the consent of the parties to fight cannot excuse the injury.”

Per Curiam.

Judgment affirmed.