Argument for Plaintiff in Error. Brooks, 6 Carr & P. 684: "If a person comes up to attack me, and I put myself in a fighting attitude to defend myself, this is not an assault on my part." Nor in this connection is it a matter of moment that the person who discharged the gun might have been personally a trespasser. McEvoy v. Drogheda, 16 Weekly Reporter, 34; Adams v. Waggoner, 33 Ind. 531; Bell v. Hansley, 3 Jones, 131, and other similar cases do not conclude the question which arises on the case, as made by the plaintiff and not by way of evidence for the defence, nor affirmatively settle the law that the given case is not concluded by the application thereto of well settled precepts and maxims of the civil and common law. Among these precepts and maxims are the following: Consentio et agento pari pana plectentur, 5 Rep. 80; and In pari delicto potior est conditio defendentis, which is a maxim of public policy equally respected in courts of law and equity. Taylor v. Chester, L. R. 4 Q. B. 309; see Story Eq. Jur. § 298; Broom's Leg. Max. 728; Colburn v. Patmore, 1 Cr. M. & R. 73, 83, where it is said: "I know of no case in which a person, who has committed an act declared by law to be criminal, has been permitted to recover compensation against a person who acted jointly with him in the commission of the crime. It is not necessary to give any opinion upon this point, but I may say that I entertain little doubt that a person who is declared by law to be guilty of a crime cannot be allowed to recover damages against another who has participated in its commission." Ex turpi causa non oritur actio. Volenti non fit injuria. Consent is a perfect shield in civil injury. Thus in Fivaz v. Nicholls, 2 C. B. 501 et seq., which was an action brought for an alleged conspiracy between the defendant and one C. to obtain payment of a bill of exchange, accepted by the plaintiff in consideration that B. would cease. from prosecuting C. for a crime, it was held that the action would not lie, inasmuch as it sprang out of an illegal transaction in which both the plaintiff and defendant had been engaged, and of which proof was essential to establish the plaintiff's claim. Argument for Plaintiff in Error. In Holman v. Johnson, Cowp. 341, 343, it was said: "The principle of public policy is this, ex dolo, &c. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act," and what is illegality was stated in Degroot v. Van Duzer, 20 Wend. 390, to be, "the intention to aid in a violation of the law." So also it was said in Lowell v. Boston & Lowell Railroad, 23 Pick. 24, 32 [S. C. 34 Am. Dec. 33], that the general rule of law is that where two parties participate in the commission of a criminal act, and one party suffers damages thereby, he is not entitled to indemnity or contribution from the other party. So also is the rule of the civil law, "nemo ex delicto consequi potest actionem." Here the plaintiff and the man who shot him were, upon the plaintiff's evidence, jointly engaged in an attempt to commit the murder of whomsoever they might shoot, and the crime was none the less joint because each proposed to shoot the members of the opposing party, and not their friends. Again. He who voluntarily fires upon an opposing party consents that such fire with all its consequences may be returned. Like a man who goes unnecessarily where he is advised that there are spring guns, he does so at his own peril. See also Holt v. Wilkes, 3 B. & Ald. 304; Stout v. Wren, 1 Hawks, 420; Galbraith v. Fleming, 27 N. W. Rep. N. S. 581; Queen v. Guthrie, L. R., 8 Q. B. D. 553; Champer v. State, 14 Ohio St. 437; Duncan v. Commonwealth, 6 Dana, 295; Smith v. State, 12 Ohio St. 466, 470 [S. C. 80 Am. Dec. 355]. The ingenious device of defeating the effect of the assent by asserting that it is invalid, because the law does not permit an assent to be given to that which is criminal, was summarily and properly disposed of in State v. Cooper, 2 Zabr. (22 N. J. Law) 52, 53, in these words: "It was insisted upon the argument that the assent of the mother was null [to an attempt to procure abortion before she was quick with child]; that the offence was of so high a nature that no assent of hers could purge the criminality. But this, it is obvious, is begging the question. The charge of assault against the person of the mother is clearly purged of criminality by her assent. The indictment is valid, but if, upon the trial, it appears that the Argument for Plaintiff in Error. means used to procure the abortion were used with the consent of the mother, the defendant must be acquitted." 9966 In Under such circumstances, the maxims "Ex turpi," pari delicto," and "Consent is a perfect shield," apply, and are decisive of the case, Taylor v. Chester, L. R., 4 Q. B. 314. If they are so decisive, then a charge which asserted an absolute right to recover and a ruling which refused to arrest the judgment because there was no evidence to support the declaration, were alike erroneous, and require a reversal of the judgment, as such charge and ruling were duly excepted to at the time. Upon the exceptions to the admission of evidence as to facts and declarations both prior and subsequent to the injury, the case of Vicksburg v. O'Brien, 119 U. S. 99, is relevant upon the question of what evidence is so connected with the res gesta as to be admissible; and the case of Moore v. Arlam, 2 Chitty, 198, is relevant as to the evidence of the special damage, in which Bayley, J., stated the rule as follows: "The rule as to special damage is that you may give in evidence any special damage which is the clear and immediate result of the act complained of, but you cannot give in evidence as special damage any remote consequences." A supposed inability hereafter to procreate would seem to be rather a remote consequence from a gunshot wound in the hip, especially as the attempt does not appear to have been made, and before evidence thereof was admissible that result should have been pleaded as the clear and immediate result of the wound. It is not believed that the literature of the medical profession would afford any easily accessible precedent establishing that the "swelling" and "wasting away" described on p. 13 of the record, and so strongly submitted in the charge were the "clear and immediate result" of a ball passing through the hip. But if it would, the defendant was entitled to notice in the declaration that that result would be proved as “a clear and immediate" one, so as to enable it to be prepared to meet the evidence adduced. Mr. John M. Waldron and Mr. Edward O. Wolcott also filed a brief for plaintiff in error. Opinion of the Court. Mr. John H. Knaebel for defendant in error. MR. JUSTICE HARLAN, after stating the case as above reported, delivered the opinion of the court. One of the propositions advanced by counsel for the company is this: That it appears from the plaintiff's case, and by his evidence, that he voluntarily armed himself, and taking the law into his own hands, joined an illegal assembly for the purpose, if necessary, of committing murder; that, in the course of the riot and rout, he received a wound at the hands of those whom he had sought by violence to destroy; that, under such circumstances, the law will not permit him to recover for an alleged assault, but conclusively presumes his assent thereto; nor will the law permit him to recover through the medium and by the aid of an illegal transaction, to which he was a party, and which constitutes the foundation of his case. The same proposition was stated in another form in argument: That the plaintiff engaged voluntarily, and not for his necessary self-defence, in a physical combat with others, and cannot, upon principle, maintain a civil action to recover damages for injuries received in such combat at the hands of his adversary, unless the latter beat him excessively or unreasonably; this, upon the ground that, "where two parties participate in the commission of a criminal act, and one party suffers damages thereby, he is not entitled to indemnity or contribution from the other party." These propositions have no application in the present case. The evidence, taken together, furnishes no basis for the suggestion that the plaintiff voluntarily joined an illegal assembly for the purpose, if necessary, of committing murder, or any other criminal offence. Nor does it justify the assertion that he voluntarily engaged in a physical combat with others. All that he did on the occasion of his being injured was by way of preparation to protect himself, and the property of which he and his co-employes were in peaceable possession, against organized violence. It appears in proof, Opinion of the Court. as stated by the court below, that the Atchison, Topeka and Santa Fé Railroad Company was in the actual, peaceable possession of the road when the other company, by an armed body of men, organized and under the command of its chief officers, proceeded, in a violent manner, to drive the agents and servants of the former company from the posts to which they had been respectively assigned. It was a demonstration. of force and violence, that disturbed the peace of the entire country along the line of the railway, and involved the safety and lives of many human beings. It is a plain case, on the proof, of a corporation taking the law into its own hands, and by force, and the commission, of a breach of the peace determining the question of the right to the possession of a public highway established primarily for the convenience of the people. The courts of the territory were open for the redress of any wrongs that had been, or were being, committed against the defendant by the other company. If an appeal to the law, for the determination of the dispute as to right of possession, would have involved some delay, that was no reason for the employment of force-least of all, for the use of violent means under circumstances imperilling the peace of the community and the lives of citizens. To such delays all—whether individuals or corporations- must submit, whatever may be the temporary inconvenience resulting therefrom. We need scarcely suggest that this duty, in a peculiar sense, rests upon corporations, which keep in their employment large bodies of men, whose support depends upon their ready obedience of the orders of their superior officers, and who, being organized for the accomplishment of illegal purposes, may endanger the public peace, as well as the personal safety and the property of others besides those immediately concerned in their movements. These principles, under somewhat different circumstances, were recognized and enforced by this court at the present term. One Johnson was in the actual, peaceable possession of eighteen miles of a railroad built by him for a railroad company, and was running his own locomotives over it. He claimed the right to hold possession until he was paid for his |