We really cannot see the pertinency of the questions asked the witness Mary McConaghy, which were excluded by the court. She was standing a little east and back of the plaintiff’s house, some twenty-five or thirty rods from where the affray took place. She said that she started and ran through the house towards the other doorj and she was asked what caused her to go into the house, and if there was anything in the appearance or conduct of the defendant Duncan McMul-len which caused her to run into the house. We fully concur in the view expressed by the counsel for the respondents upon this point, that it was entirely irrelevant and immaterial to the issues in this case what motive operated upon the witness’s mind to cause her to go into the house. Suppose it was fear on her part, or a reluctance to witness the fight, ora desire to secure a better point of observation; what had this to do with the questions in the case ? Nothing whatever, so far as we can see.

We do not think there was any error committed by the court, either in the modifications which were made to the plaintiff’s instructions, or in giving those asked on the part of the defendants. Some of the modifications made to the plaintiff’s instructions were merely verbal alterations, not essentially changing the meaning. We do not deem it necessary to notice them in detail. The modification in the second instruction complained of, that it took from the jury all consideration of the question of exemplary damages, manifestly could not have prejudiced the plaintiff, inasmuch as the jury found that he was not entitled to recover any damages whatever.

The change in the sixth instruction is rather verbal *79than otherwise. The jury were charged that if the defendant Duncan was only defending himself from the assault of the plaintiff, but used more force than was requisite for that purpose, he was a trespasser from the beginning, and equally liable as if it was apure and wholly* unjustifiable trespass; for the law does not justify the use of extreme or inhuman measures in self-defense, unless such are necessary. The counsel for the defendants claims that this whole instruction is incorrect as a legal proposition, and that the court might well have refused it altogether. We are certainly satisfied that there is nothing in it, as given, of which the plaintiff can complain. The general statement by the authorities is, that if a person acting in self-defense to repel an assault and battery is guilty of an unreasonable and disproportionate degree of violence towards the person of the assailant, he is only liable for the damages caused by such excess. This in substance is the language of Bigelow, J., in Brown vs. Gordon, 1 Gray, 182-185. But no matter. The instruction as given was at least as favorable to the plaintiff as the law would warrant, if not more so.

Again, it said that the seventh instruction should have been given in the very words in which it was drawn. That instruction seems to be framed on the assumption that the answer only contained the defense of son assault demesne; hut this is a mistake. It likewise contains the general denial. The jury were directed in the instruction as modified, that under the pleadings the defendants, in order to justify the admitted act of the defendant Duncan, must prove that what was done was in the necessary defense of their persons — in other words, that it was necessary for self-defense for Duncan to bite off the plaintiff’s thumb and to commit the other injuries proven to have been done by him. And in the eighth instruction the jury were told, that the intentional depriving one of a thumb would amount to a felony in the law, *80and that such an injury, committed in the manner detailed in the evidence, was so unusual and barbarous as to require the clearest and most satisfactory proof of its necessity to justify it.

But not to dwell further upon the instructions, we must say that they seem to be substantially correct as given, or at all events are sufficiently favorable for the plaintiff. We do not think the second one given on the part of the defendants fairly open to the criticism of assuming as a fact that the club, which it appeared the plaintiff had in his hands when the affray commenced, was a “ dangerous weapon.” The jury had the advantage of seeing the club itself, as it was produced on the trial; and they doubtless considered it a “ dangerous weapon,” which justified the use of a considerable degree of force on the part of the defendant Duncan McMullen in repelling the assault made upon him with it. The jury must have found that an assault of a very aggravated character was first made by the plaintiff, and that all the violence used by the defendant was necessary to protect his own person. It is undeniable that the testimony in the case fully warrants such a conclusion.

We think the judgment of the circuit court must be affirmed.

By the Court. — Judgment affirmed.