| Vt. | Aug 15, 1875
The opinion of the court was delivered by
The defendant’s notice is incongruous upon its face. It is absurd to say that the trespasses sued for in this suit were the identical trespasses declared on in the case of McFarland v. Cade. We must determine the legal signification of the notice. If it has any meaning, it is evident that the pleader claims that the trespasses now declared on grew out of the same transaction. The same quarrel might give a cause of action to each combatant. If A makes a trivial assault on B, and B in turn gives A an aggravated and excessive beating, B may recover for A’s first assault, and A for the excessive beating. B’s excess of force could not be urged by A in answer to B’s suit, because it did not precede A’s act, and so is no justification. The recovery by McFarland established the fact that this plaintiff made the first assault, but it does not necessarily bar this plaintiff’s action.
Judgment reversed, and cause remanded.