took place, or that any one was disturbed thereby, except that the parties were fighting in presence of a crowd of from fifty to one hundred persons who had collected together. After the evidence was all in, the defendants asked the judge to instruct the jury as follows:

"If the jury are satisfied that whatever acts and things the defendants did to each other they did by mutual consent, and that the struggle between them was an amicable contest voluntarily continued on both sides without anger or malice, and simply for the purpose of testing their relative agility and strength, then there is no assault and battery, and the defendants must be acquitted."

The judge declined to give this instruction, but instructed the jury upon this branch of the case in substance as follows: "That if the defendants were simply engaged in a wrestling match, that being a lawful sport, they could not be convicted of an assault and battery; but if by mutual agreement between themselves, previously made, they went to a retired spot for the purpose of fighting with each other and for the purpose of doing each other physical injury by fighting, with a view to ascertain by a trial of their skill in fighting which was the best man, and there engaged in a fight, each endeavoring to do and actually doing all the physical injury in his power to the other, and if, in such contest, each did strike the other with his fist for the purpose of injuring him, each may properly be convicted of assault and battery upon the other, although the whole was done by mutual arrangement, agreement, and consent, and without anger on the part of either against the other."

To this instruction, and to the refusal of the judge to give the ipstruction prayed for, the defendants alleged exceptions.

G. S. Scammon, for the defendants.

W. C. Loring (C. R. Train, Attorney-General, with him), for the Commonwealth.

ENDICOTT, J. It appears by the bill of exceptions that the parties by mutual agreement went out to fight one another in a retired place, and did fight in the presence of from fifty to one hundred persons. Both were bruised in the encounter, and the fight continued until one said that he was satisfied. There was also evidence that the parties went out to engage in and did engage in a “run and catch" wrestling match. We are of opinion that the instructions given by the presiding judge contained a full and accurate statement of the law.

The common law recognizes as not necessarily unlawful certain manly sports calculated to give bodily strength, skill, and activity, and "to fit people for defence, public as well as personal, in time of need." Playing at cudgels or foils, or wrestling by consent, there being no motive to do bodily harm on either side, are said to be exercises of this description. Fost. C. L. 259, 260; Com. Dig. Plead. 3 m. 18. But prize-fighting, boxing-matches, and encounters of that kind serve no useful purpose, tend to breaches of the peace, and are unlawful even when entered into by agreement and without anger or mutual illwill.

Fost. C. L. 260; 2 Greenl. on Ev. § 85; 1 Stephens N. P. 211.

If one party license another to beat him, such license is void, because it is against the law. Matthew v. Ollerton, Comb. 218. In an action for assault the defendant attempted to put in evidence that the plaintiff and he had boxed by consent, but it was held no bar to the action, for boxing was unlawful, and the consent of the parties to fight could not excuse the injury. Boulter v. Clark, Bull. N. P. 16. The same rule was laid down in Stout v. Wren, 1 Hawks (N. C.), 420, and in Bell v. Hansley, 3 Jones (N. C.), 131. In Adams v. Waggoner, 33 Ind. 531, the authorities are reviewed, and it was held that it was no bar to an action for assault that the parties fought with each other by mutual consent, but that such consent may be shown in mitigation of damages. See Logan v. Austin, 1 Stew. (Ala.) 476. It was said by Coleridge, J., in Regina v. Lewis, 1 C. & K. 419, that "no one is justified in striking another except it be in self-defence, and it ought to be known that whenever two persons go out to strike each other, and do so, each is guilty of an assault; " and that it was immaterial who strikes the first blow. See Rex v. Perkins, 4 C. & P. 537.

Two cases only have been called to our attention where a different rule has been declared. In Champer v. State, 14 Ohio St. 437, it was held that an indictment against A. for an assault and battery on B. was not sustained by evidence that A. assaulted and beat B. in a fight at fisticuffs, by agreement between them. This is the substance of the report, and the facts are not disclosed. No reasons are given or cases cited in support of the proposition, and we cannot but regard it as opposed to the weight of authority. In State v. Beck, 1 Hill (S. C.), 363, the opinion contains statements of law in which we cannot concur. Exceptions overruled.

SECTION IV.

Fault of the Injured Party.

(d) CONTRIBUTORY CRIME.

REX v. STRATTON.

NISI PRIUS. 1809.

[Reported 1 Campbell, 549]

INDICTMENT for a conspiracy to deprive one Thompson of the office of secretary to the Philanthropic Annuity Society, and to prosecute

him, without any reasonable or probable cause, for obtaining money upon false pretences. It appeared that this society is an unincorporated company, with transferable shares; that there was a violent dispute among the subscribers as to the choice of secretary; that one party, headed by the defendants, cashiered the prosecutor; that he still went on collecting subscriptions, and that they indicted him for obtaining money upon false pretences, of which he was acquitted.

LORD ELLEnborough. This society was certainly illegal. Therefore, to deprive an individual of an office in it, cannot be treated as an injury. When the prosecutor was secretary to the society, instead of having an interest which the law would protect, he was guilty of a crime. In Dodd's case, all the judges of this court were agreed upon the illegality of these associations; and I understand there has since been a nonsuit in the Common Pleas upon the same ground. Nor can I say that the prosecutor was indicted without reasonable or probable cause. I thought he was not guilty of the offence imputed to him; because it did not appear that he acted with a fraudulent purpose. But he did obtain the money upon a false pretence. He pretended that there was then a real, legal society, to which he was secretary; whereas no such society existed. The defendants must all be acquitted.1

REGINA v.

CENTRAL CRIMINAL COURT. 1845.

[Reported 1 Cox C. C. 250.]

THE defendant was indicted for uttering counterfeit coin. Evidence was adduced to show that he had given a counterfeit sovereign to a girl with whom he had had intercourse.

Bodkin, in opening the case for the prosecution, referred to R. v. Page, 8 C. & P. 122, in which Lord Abinger ruled that the giving a piece of counterfeit money away in charity was not an uttering within the 2 Wm. IV. c. 34, § 7, although the person giving knew it to be counterfeit, as there must be some intention to defraud. The learned counsel contended that the present case was clearly distinguishable, even supposing that to be the law, and he apprehended that the question for the jury would be, whether the coin had been passed with a knowledge of its being counterfeit and with the intention of putting it into circulation.

LORD DENMAN, C. J. (in summing up). As to the law of this case, my learned brother (Coltman, J.) and myself are clearly of opinion that if the defendant gave the coin to the woman under the circumstances stated, knowing it to be counterfeit, he is guilty of the offence

1 See Rex v. Beacall, 1 C. & P. 454; Reg. v. Hunt, 8 C. & P. 642; Com. v. Smith, 129 Mass. 104. - ED.

charged. We do not consider the decision of Lord Abinger to be in point; that was a case of charity; at the same time we have great doubts as to the correctness of that ruling, and if a similar case were to arise we should reserve the point.1

CASE reserved for the opinion of this court, by J. B. Maule, Esq., barrister-at-law, sitting as Deputy for the Recorder of York.

At the Epiphany Sessions, 1860, held for the city of York, the prisoners were jointly indicted and tried before me upon an indictment, the two first counts of which charged them with an offence under the 8 & 9 Vict. c. 109.

Third count. The prisoners were charged with a conspiracy to cheat in the following form:

"That they unlawfully and fraudulently did combine, confederate, and conspire together with divers other persons to the jurors unknown, by divers unlawful and fraudulent devices and contrivances, and by divers false pretences, unlawfully to obtain from the said A. Rhodes the sum of £2 10s. of the money of the said A. Rhodes, and unlawfully to cheat and defraud the said A. Rhodes of the same, against the peace, etc."2

The evidence disclosed that the three prisoners were in a public house together with the prosecutor, Abraham Rhodes, and that in concert with the other two prisoners, the prisoner John Dewhirst placed a peucase on the table in the room where they were assembled and left the room to get writing-paper. Whilst he was absent the other two prisoners, Samuel Hudson and John Smith, were the only persons left drinking with the prosecutor; and Hudson then took up the pen-case and took out the pen from it, placing a pin in the place of it, and put the pen that he had taken out under the bottom of the prosecutor's drinking-glass; and Hudson then proposed to the prosecutor to bet the prisoner Dewhirst when he returned that there was no pen in the pencase. The prosecutor was induced by Hudson and Smith to stake 50s. in a bet with Dewhirst upon his returning into the room, that there was no pen in the pen-case; which money the prosecutor placed on the table, and Hudson snatched up to hold. The pen-case was then turned

1 Acc. Com. v. Woodbury, Thach. (Mass.) 47.
2 Contra, People v. Wilson, 6 Johns. 320. — ED.

up into the prosecutor's hand, and another pen with the pin fell into his hand, and then the prisoners took his money.

Upon this evidence it was objected, on behalf of the prisoners, that no offence within the meaning of the 8 & 9 Vict. c. 109, was proved by it, and that the facts proved in evidence did not amount to the offence charged in the third count.

I thought the objection well founded as to the offence under the 8 & 9 Vict. c. 109, but held that the facts in evidence amounted to the offence charged in the third count, and directed the jury to return a separate verdict on each count, a case having been asked for by the prisoners' counsel, for the consideration of the Court for Crown Cases Reserved.

The jury returned a verdict of guilty on each of the three counts. The prisoners were sentenced to eight months' imprisonment, and committed to prison for want of sufficient sureties.

If the court for the consideration of Crown Cases Reserved shall be of opinion that the above facts in evidence constituted in law any one of the offences charged in the indictment, and was evidence to go to the jury in support thereof, the verdict is to stand for such of the counts in which the offence is laid to which the evidence applies.

Price, for the prisoners. As to the third count, to sustain that the evidence should have shown such a false pretence as per se would constitute the ordinary misdemeanor of false pretences.

POLLOCK, C. B. Why so? This is a count for conspiracy to cheat. Price. Yes, by false pretences.

CHANNELL, B. If the count had said merely to conspire, and had omitted the words "by false pretences," it would have been good.

BLACKBURN, J. Here the prisoners cheated the prosecutor into the belief that he was going to cheat, when in fact he was to be cheated.

Price. This is a mere private deceit, not concerning the public, which the criminal law does not regard, but is a deceit against which common prudence might be guarded. There is no evidence of any indictable combination to cheat and defraud.

CHANNELL, B. If two persons conspire to puff up the qualities of a horse and thereby secure an exorbitant price for it, that is a criminal offence.

Price. That affects the public. At the trial the present case was likened to that of Rex v. Barnard, 7 C. & P. 784, where a person at Oxford, who was not a member of the university, went for the purpose of fraud, wearing a commoner's gown and cap, and obtained goods. This was held a sufficient false pretence. The present case, however, was nothing more than a bet on a question of fact, which the prosecutor might have satisfied himself of by looking at the pencil-case. It is more like an ordinary conjuring-trick. Besides, here the prosecutor himself intended to cheat one of the prisoners by the bet.

No counsel appeared for the prosecution.