Barholt v. Wright. action for assault and battery, although he agreed to fight with his adversary; for such agreement to break the peace being void, the maxim volenti non fit injuria does not apply." The following cases are to the same effect: Stout v. Wren, 1 Hawks, 420; Adams v. Waggoner, 33 Ind. 531; Shay v. Thompson, 59 Wis. 540; Logan v. Austin, 1 Stewart, 476. And so it was held in Commonwealth v. Collberg, 119 Mass. 350, that where two persons go out to fight with their fists, by consent, and do fight with each other, each is guilty of an assault, although there is no anger or mutual ill-will. Champer v. State, 14 Ohio St. 437, is not in conflict with this, as will be explained hereafter. No case has been cited that can be said to be to the contrary. What is said by Peck, J., in Smith v. State, 12 Ohio St. 466, that "an assault upon a consenting party would seem to be a legal absurdity," must be applied to the facts of that case. The judge was discussing the sufficiency of a count in an indictment for an assault with intent to commit a rape, without an averment that it was made forcibly and against the will of the female. The absence of consent is essential to the crime of rape, or of an assault with intent to commit a rape, where the female has arrived at the age at which consent may be given. Intercourse, because illicit, does not amount to an assault where the female consents, however wrong it may be in morals. This is all that was meant by the learned judge in using the language quoted from his opinion, In all such cases the consent of the female would, without doubt, be a bar to any right she would otherwise have to maintain an action for an assault and battery. It is said by Judge Cooley in his work on Torts, p. 163, that, "consent is generally a full and perfect shield when that is complained of as a civil injury which was consented to. * * * A man may not even complain of the adultery of his wife, which he connived at or assented to. If he concurs in the dishonor of his bed, the law will not give him redress, because he is not wronged. These cases are plain enough, because they are cases in which the questions arise between the parties alone." "But,” he adds, "in case of a breach of the peace it is different. The Barholt v. Wright. state is wronged by this and forbids it on public grounds. * * *The rule of law is therefore clear and unquestionable, that consent to an assault is no justification. The exception to this general rule embraces only those cases in which that to which assent is given is matter of indifference to public order." See also, to like effect, Pollock on Torts, 139. Neither is the case of Champer v. State, 14 Ohio St. 437, at variance with the principle upon which the plaintiff below seeks a recovery. The case seems to have been somewhat misapprehended by the courts of some of the states, as well as by some text-writers. By the statutes of this state a distinct offense is made of an affray or agreement to fight; and the effect of the holding is that where such an offense is committed, the indictment must be for an affray, and not for an assault and battery. The civil right of either party to recover of the other for injuries received in an affray, is not affected by the statute nor by the decision just referred to. Such seems to have been the view taken by Boynton, J., in the subsequent case of Darling v. Williams, 35 Ohio St. 63. The case of Fitzgerald v. Cavin, 110 Mass. 153, is to the effect that consent is no bar to that which occasions bodily harm if the act was intentionally done. It is upon the same principle of public policy that one, who is the first assailant in a fight, may recover of his antagonist for injuries inflicted by the latter, where he oversteps what is reasonably necessary to his defense, and unnecessarily injures the plaintiff; or that, with apparent want of consistency, permits each to bring an action in such case, the assaulted party for the assault first committed upon him, and the assailant, for the excess of force used beyond what was necessary for self-defense. Dole v. Erskine, 35 N. H. 503, criticising Elliott v. Brown, 2 Wend. 499; Cooley on Torts, 165; Darling v. Williams, 35 Ohio St. 63; Gizler v. Witzel, 82 Ill. 322. And see also Commonwealth v. Collberg, supra. It would seem that under the code the right of each combatant to damages might be determined and measured in the same action. Swan's Plead. Prec. 259, n. a. Barholt v. Wright. And upon like principle it has been ruled that the doctrine of contributory negligence has no application to an action to recover damages for an assault and battery. Ruter v. Foy, 46 Iowa, 132; Steinmetz v. Kelly, 72 Ind. 442; Whitehead v. Mathaway, 85 Ind. 85. Negligence of the plaintiff contributing to the injury of which he complains, is taken into consideration only in those cases, where the liability of the defendant arises from want of care on his part, occasioning injury to the plaintiff; it does not apply to the commission of an intentional wrong. A question was made as to the admissibility of the evidence of an agreement to fight, under the issue made by the pleadings-the answer being a general denial. If the evidence had been competent for any purpose, other than in mitigation of damages, it would have been under the issue as made. It was insisted on in denial of the right of action, and not as an avoidance of it; so that it was not necessary to be pleaded as new matter. If it had been so pleaded it would have been subject to a demurrer. We think the court erred in its charge to the jury. The injury inflicted, the loss of a finger, was a severe one; it amonnted in fact to a mayhem. "Where the injury" (a mayhem), says the author of a recent and quite valuable work on criminal procedure, "takes place during a conflict, it is not necessary to a conviction that the accused should have formed the intent before engaging in the conflict. It is sufficient if he does the act voluntarily, unlawfully, and on purpose." Maxwell's Crim. Proc. 260. It was permissible to the defendant to show the agreement to fight in mitigation of damages, but not as a bar to the action. Judgment affirmed. Ohio College of Dental Surgery v. Rosenthal. OHIO COLLEGE OF DENTAL SURGERY v. ROSENTHAL. Corporations Shares of stock-Interest. The plaintiff in error is a corporation organized under a special act passed in 1845. It was not organized for profit and has made none. Its object was the maintenance of a college for instruction in dental surgery. Its capital consists of $12,000 in real estate, derived from the proceeds of one hundred and twenty certificates of shares which certify that the holder of each share" is entitled to one share of the real estate property of the college, drawing an interest of 6 per cent." On the margin of each certificate, and a part of it, is: "Shares, $100 each." At this sum each certificate was valued and sold. All the shareholders are dentists and members of the corporation. Its capital-the real estate above mentioned has always constituted its entire property. During its existence (a period of about forty years) no interest has been collected or paid on any share. It is still a going corporation, and its capital-the real estate is indispensable to its existence. The plaintiff below, a shareholder, brought his action, in 1882, to recover a money judgment for interest on his share. Held: The action is not maintainable. (Decided May 10, 1887.) ERROR to the Superior Court of Cincinnati. Plaintiff in error was incorporated under a special charter set forth in the Local Laws of Ohio, vol. 43, p. 32. Its charter constitutes nine persons named, and their successors, a board of trustees, with power to establish a college of dental surgery; makes the trustees a body corporate; gives it power to acquire, hold, and convey property for the endowment of the college; to contract and be contracted with; and provides that the revenues from the property it may hold shall not exceed $5,000 per annum. That the officers, a president, vice president, registrar, and treasurer, shall be elected by the board. That the board shall appoint the professors, and may dismiss them at any time; and may make by-laws for the government and well being of the college; and shall, by election, fill vacancies occurring in the board. The plaintiff below, C. H. Rosenthal, brought his action in the superior court of Cincinnati, July 18, 1882, upon a certificate of the following tenor, with its assignment: Ohio College of Dental Surgery v. Rosenthal. "(Shares, $100 each.) OHIO COLLEGE OF DENTAL SURGERY.' No. 30 This is to certify that J. B. Smith, M. D., is entitled to one share of the real estate property of the college, drawing an interest of 6 per cent., and transferable only in accordance with the constitution of the college association. CINCINNATI, Feb'y. 16th, 1858. CHAS. BONSELL, JAMES TAYLOR, JOHN ALLEN, THOS. WOOD, H. E. PEEBLES, By his attorney, JAS. TAYLOR. Trustees. I do transfer within share of stock to C. H. Rosenthal, with all my rights and interests. MARY E. SMITH, Administratrix.” The object of the action was to recover interest claimed to be due the plaintiff, and the prayer of the petition was for a judgment against the corporation for $146, and for all other relief to which he was entitled. The case was reserved to the general term, where it was heard npon the following agreed statement of facts: "It is agreed, that the paper writing, a copy of which is incorporated into and made part of the petition in this cause, a copy of which is hereto attached, marked Exhibit "A," and made part hereof, was executed by the trustees of defendant corporation, having authority so to do, and delivered to J. B. Smith, M. D., at the time at which the instrument bears date, and that at that time J. B. Smith, M. D., paid to defendant corporation the sum of one hundred dollars therefor. It is further agreed that J. B. Smith having deceased, Mary E. Smith was duly appointed administratrix of his estate, and being duly authorized, did, prior to the bringing of this action, for value, endorse said instrument to plaintiff in the following words: I do transfer within share of stock to C. H. Rosenthal with all my rights and interests, Mary E. Smith, administratrix;' and deliver the same to him. It is further agreed |