Circuit Court of the United States. NEW JERSEY, APRIL TERM 1830. BEFORE HON. HENRY BALDWIN, Associate Justice of the Supreme Court. CUSHMAN V. Waddell. In an action of assault and battery to which the general issue is pleaded, the defendant may give in evidence his state of mind, caused by an excitement or provocation so recent or immediate, as not to allow the blood to cool. The legal effect of such evidence is not to excuse the defendant from paying compensatory damages, but will excuse him from paying such as are exemplary. If the alleged provocation is a previous assault and battery by the plaintiff of the son of the defendant, evidence of the transaction is not admissible; but the defendant may give in evidence the appearance of the son, and the account he gave to the defendant at the time he first saw him, so as to enable the jury to decide on the cause and extent of the provocation. THIS was an action of assault and battery, plea not guilty, issue, &c. The plaintiff was a schoolmaster in Trenton, under whose care the defendant had placed one of his sons, who had been severely punished by the plaintiff for some offences. He was seen by his father immediately afterwards, when the appearance of the boy indicated the infliction of serious injury. The father went to the boarding house of the plaintiff, attacked and beat him severely, accompanied with very intemperate and vindictive language, and other circumstances of aggravation. [Cushman v. Waddell.] The defendant offered, in mitigation of damages, to prove the correction of the son by the plaintiff to have been a cruel, wanton, and undeserved one, and to give all the circunstances attending it in evidence. Mr Southard and Mr Scott, for the plaintiff, objected to the admission of this evidence, on the ground that an action of assault and battery was now pending against the plaintiff for the same act, and that on the general issue, the defendant could give nothing in evidence except what occurred at the time of the assault and battery, or some immediate or recent provocation, before the blood had time to cool. Lee v. Woolsey, 19 Johns. Rep. 319; 1 Saund. Pl. and Ev. 106, 127 ; Bull. N. P. 17; Avery v. Ray, 1 Mass. Rep. 12, 14. The plaintiff will be taken by surprise by evidence of any thing not happening at the time, or so immediately preceding it as to make the provocation a part of the res gesta, and the court will not collaterally examine into the merits of the suit for the correction of the son. Mr Halsey and Mr Wood, for the defendant, contended, that: Inasmuch as the matter now offered in evidence was in mitigation of damages only, and could not be pleaded in justification to the action, it was admissible to show the state of mind of the defendant; 3 Starkie 1460; 2 Bos. and Pull. 2245, note; 12 Mod. 232; the absence of malice; 1 Penn. 169, S. P.; or a high degree of excitement on seeing the situation of his son, after he had been punished; as in 1 Hale's P. C. 453; 12 Co. Litt. 87; Rowley's Case, Cro. Jac. 296. The provocation is part of the res gesta; and on a mere question of damages, it is proper for the jury to know its nature and extent, so as to enable them to decide whether the assault and battery was the result of passion, and excited feelings, under recent provocation, or deliberate and maliciously intended injury. BY THE COURT.-We cannot go into evidence of the circumstances attending the correction of the defendant's son by the plaintiff, as it would be neither a justification, or mitigation of damages in this action, however aggravated the case may have been on the part of the plaintiff. We therefore reject the evidence offered, so far as it respects the nature of the infliction on the boy: but we think evidence admissible to show the situation of the transaction; the [Cushman v. Waddell.] account he gave of it on his father's first seeing him; and the conduct and declarations of the latter, from that time to the attack on the plaintiff; otherwise the jury cannot decide whether the defendant acted under the influence of the sudden excitement produced by the situation and story of his son, or a disposition to inflict a wanton injury or disgrace upon the plaintiff. The evidence was admitted. The only question for the jury was the amount of damages. THE COURT laid down the following as the rule of law by which they ought to be guided: That whether the defendant acted wantonly and maliciously, or under the excitement of the occasion, the plaintiff was entitled to such damages as would compensate him for any injury he may have sustained in his person, or his occupation, and all expenses incurred in consequence of the injury. That no provocation, however great or immediate, could excuse the defendant from making full compensation for all the plaintiff had suffered by the unlawful attack on his person; nor could any provocation, so remote in point of time from the infliction of the injury to his son as to allow the excitement to subside and leave the defendant to act coolly and deliberately, be any mitigation of damages. But if the jury were satisfied that he acted in the heat of passion caused by the appearance and account of his son, without any previous malice towards the plaintiff, or any deliberate design to injure him in person or the estimation of the public, it was a circumstance which ought to operate powerfully to reduce the damages to such as would be compensatory. If death had ensued from the blows inflicted by the defendant, his offence would have been murder or manslaughter, according to the degree of excitement or deliberation with which it was committed. The same rule is applicable to actions for personal injuries, whenever a plaintiff claims damages beyond those which afford him remuneration for all injuries he has sustained. The jury found a verdict for 1500 dollars. A motion was made for a new trial, on account of excessive damages, but before any decision of the court, the case was compromised. BENNETT V. Boggs. The compact between New Jersey and Pennsylvania recognises the right of fishery in riparian owners on the Delaware. The third section of the act of 1808, defining a fishing place, applies only to shore fisheries: a common right of fishery is necessarily indefinite. The penalties of the law of 1822 attach to any person who uses a gilling seine or The proprietors of New Jersey had no right in the Delaware beyond low water mark. The right to the bed of the river was in the crown, therefore the compact of 1676 did not give a common right of fishery therein. The rights of the crown devolved on the states by the revolution, and were confirmed by the treaty of peace to them in their sovereign capacity. The constitution of New Jersey confers general powers of legislation. The legislature has power to regulate fisheries on the Delaware, by prohibiting the exercise of a common law right. The only restraint upon them is, that they cannot, by any law, impair the obligation of a contract. If a right is not founded in a contract, or secured by the constitution, it may be taken away by a state law, however long it may have been exercised. This court can inquire only into the constitutional power of the legislature ; not on the policy, justice, or wisdom of their acts. Neither the state or federal constitution secures a common right of fishery in the Delaware to the people of New Jersey. THIS case came before the court on a case stated by counsel, as follows: "This action is brought for the recovery of eight penalties, under the seventh section of the supplement to an act of the legislature of New Jersey regulating fisheries in the river Delaware, passed November 28th, 1822, and assented to and adopted by the legislature of Pennsylvania January 29th, 1823, prohibiting the use of gilling seines in said river, except in certain cases, mentioned in a previous section of the act, under a penalty of 250 dollars for each and every such offence. "The plaintiff resides at, and rents, and fishes a shore fishery in the township of Waterford, in the county of Gloucester. His haul is from the upper line of the lands of Benjamin Cooper down to the mouth of Cooper's Creek. Petty's Island lies between this fishery [Bennett v. Boggs.] and the Pennsylvania shore. On part of this island, on the Jersey side, is another fishery; so that the two seines sweep partly over the same pool, when out, though hauled in on different sides of the river. These gilling seines are made of fine twine, so as to be imperceptible to the fish, whilst the water is turbid from the spring freshets, when they are most successfully used. They are usually about fifty or sixty fathoms in length; are extended across the channel, and drift with the tide. In passing up the river, all the fish which come in contact with them, and are too large to pass through the mesh of the net, are entangled by their gills, and, seldom able to extricate themselves, are thus taken, from whence these seines derive their name. The defendant's net was of the size authorized by the act to be used in certain cases. The defendant is a citizen of Pennsylvania, and resident in the county of Philadelphia. He owned a gilling seine, and was in the habit of drifting between the island and Jersey shore, both in and below the pools of the above named fisheries. On the 23d, 24th, 25th and 26th days of March last, the defendant and one William Eager were drifting in the channel of the river with their net, opposite to the fishery of the plaintiff, when their net and boat were seized on the last named day, at the instance of the plaintiff, and the summons in this cause served on the defendant. This seine, when taken, was not within the sweep of the plaintiff's net, nor so as to obstruct him in his haul. The boat and seine were adjudged to be forfeited by two justices, and ordered to be sold. The defendant appeared on the return day, and caused his appearance to be regularly entered. The defendant has given a bond to the prothonotary of the court of common pleas of Philadelphia county, accompanied by the following description, viz.: (Description) "From Samuel Bower's wharf and lands at Kensington to Fisher's Point, the size of the net is about fifty fathoms, and of a mesh of about six inches. Samuel Boggs." (Prout the bond and description.) It is admitted that there is a mistake or clerical error in this description, and that it should have been Fish's Point, instead of Fisher's, there being no such place as the latter. Bower's lands and wharf are in Kensington, in the city and county of Philadelphia, in the state of Pennsylvania; and Fish's Point is in the township of Waterford, aforesaid, in this state, about five miles above Kensington. On each side of the river there are numerous owners of the shore within the bounds of this description, from whom the defendant had no lease or permission to enter a fishery in front of their |