Counsel for Plaintiff in Error. testimony tending to show that the plaintiff approached the conductor with an open knife in his hand, and in a threatening manner, and that the conductor, fearing danger, shot and wounded the plaintiff in order to protect himself. The bill of exceptions recited that in its general charge "the court instructed the jury that if the evidence showed that the plaintiff was a passenger on the train, and that he was shot and wounded by the conductor whilst he was such passenger and whilst prosecuting his journey, and such shooting was not a necessary self-defence, the plaintiff was entitled to recover compensatory damages; but if the jury believe the plaintiff, when shot, was advancing on the conductor or making hostile demonstrations towards him with a knife in such a manner as to put the conductor in imminent danger of his life or of great bodily harm, and that the conductor shot plaintiff to protect himself, the plaintiff was not entitled to recover; but if it appeared that the conductor shot the plaintiff, whilst such passenger and prosecuting his journey, wantonly and without any provocation at the time, then the jury might award exemplary damages." And further, that, "responding to the request of defendant that the court should instruct the jury that if they believed from the evidence that when Carlin shot the plaintiff, he, Carlin, had reasonable cause to believe, from Jopes's manner and attitude, that he, Jopes, was about to assault Carlin with the knife, and that it was necessary to shoot him to prevent great bodily harm from Jopes, then that the jury should find for defendant, whether Jopes was intending to do Carlin great bodily harm or not, the court declined to instruct, but instructed that, in that state of the case, if Carlin shot under the mistaken belief, from Jopes's actions, that he was in danger of great bodily harm then about to be done him by Jopes, when in fact Jopes was not designing or intentionally acting so as to indicate such design, the plaintiff should be entitled to compensatory damages and not punitive damages." To this last instruction an exception was taken, and this presented the substantial question for consideration. Mr. Edward Colston (with whom was Mr. John W. Fewell on the brief) for plaintiff in error. Argument for Defendant in Error. Mr. Calderon Carlisle for defendant in error. (Mr. Marcellus Green and Mr. S. S. Calhoon filed a brief for same.) It is nowhere shown that the exceptions, or any of them, were taken at the trial, which is a fatal defect. Walton v. United States, 9 Wheat. 651; French v. Edwards, 13 Wall. 506; Brown v. Clarke, 4 How. 4; Sheppard v. Wilson, 6 How. 260; Phelps v. Mayer, 15 How. 160. Nor is it anywhere shown that any exception was taken while the jury were at the bar.. United States v. Breitling, 20 How. 252; Barton v. Forsyth, 20 How. 532; Phelps v. Mayer, 15 How. 160. The grounds of the objection are not given in any instance. Coddington v. Richardson, 10 Wall. 516. If the exception to the instructions of the court be regarded as taken to all the propositions set forth in the instructions, the exception must be overruled if any one of the propositions be sound. Johnston v. Jones, 1 Black, 209; Rogers v. The Marshal, 1 Wall. 644; Harvey v. Tyler, 2 Wall. 328. The verdict was clearly right on the evidence, and there is no probability of any difference in another trial with this evidence in; and it is highly improbable that it had the effect to produce or modify the verdict. Its effect in producing the verdict, or making it larger, is imaginary. McLanahan v. Universal Ins. Co., 1 Pet. 170. It was competent in any point of view, as a legal proposition, both as part of the res gesta of the shooting, and because it was the verbal act of the agent of the company, as its conductor, made to a passenger, and while the contract of transportation still existed between the passenger and the railroad company, and while the railroad conductor was still in the discharge of his functions, as such conductor, and agent of the company, towards that passenger. New Jersey Steamboat Co. v. Brockett, 121 U. S. 637. But the principles applicable to the trial of Carlin upon indictment for the assault and those governing the case at bar differ widely. The cause of action was breach of the contract to carry safely. The defence sought excuse for the non-performance, in that plaintiff had abandoned the contract and made an Opinion of the Court. assault upon the servant of defendant to whose care he was committed, and that, therefore, defendant could not perform by reason of plaintiff's own act. Under this the facts must exist to excuse the breach. Not that the servant had reasonable cause to believe they existed, but that they existed in fact. Under the criminal law if there is a reasonable doubt it suffices to excuse, but the non-performance of contracts cannot be excused upon beliefs. The reasonable ground for belief has no existence, even in estoppel in pais. The doctrine contended for that the court will institute a comparative blame inquiry, and, if the corporation or master was less to blame than the passenger, though the servant may be more to blame than the passenger, the master will be excused, is as surprising as it is untenable. Under it a corporation, being incorporeal, could never be liable, for it can only work through servants. Qui facit per alium facit per se would exist no longer in jurisprudence if this was the law. The conductor was the company, Chicago, Milwaukee &c. Railway v. Ross, 112 U. S. 377, 390, and during the journey for which Jopes had taken passage he was charged with the duty of carrying him safely and protecting him. Any declarations made by the conductor during the journey were competent, just as those of any personal master would have been. If the rights are to be measured by the criminal law applicable, the declarations of Carlin were competent. Kendrick v. The State, 55 Mississippi, 436. MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court. A preliminary question is raised by counsel for the defendant in error. It is insisted that the bill of exceptions does not show that this exception was taken at the trial, and while the jury was at the bar, and therefore not in time. In support of this contention several authorities are cited. While it is doubtless true that if the exception was not taken until after the trial it would be too late, and to that effect are the authorities, yet we do not think the record shows that such was the Opinion of the Court. fact in this case. The trial commenced on the 14th, and was concluded on the 15th, and the bill of exceptions was sealed and signed on the 16th of May. The motion for a new trial was not overruled until the 26th. The bill of exceptions recites in the ordinary form the coming on of the case to trial, the empanelling of a jury, the testimony offered and the instructions given and refused. In respect to one matter of testimony, the bill of exceptions recites: "Whereupon the court refused to allow the testimony, to which ruling the defendant excepted." So, following the recital in respect to the last matter of instructions, is the statement "to which defendant excepted." It is true the words used are not "then and there excepted," neither is it said that the court "then and there instructed;" but as the bill purports to be a recital of what took place on the trial, it is to be assumed that the instructions were given, and the exceptions taken, during and as a part of the trial. The statement as to the exception follows that as to the instructions, and the only fair and reasonable intendment from the language is that as the one was given, so the other was taken, at the trial. The same form of recital was pursued in the case of United States v. Breitling, 20 How. 252, and held sufficient. In the case of Barton v. Forsyth, 20 How. 532, it appeared that after the verdict and judgment the defendant filed a motion, supported by affidavit, which was overruled. Following the recital of this fact, the record added, "to all which decisions, rulings and instructions defendant then and there excepted;" and it was held that such recital showed that the exceptions were taken at the time of the overruling of the motion. In the case of Phelps v. Mayer, 15 How. 160, the verdict was rendered on the 13th of December, and the next day the plaintiff came into court and filed his exceptions, and there was nothing to show that any exception was reserved pending the trial. In Brown v. Clarke, 4 How. 4, it was a matter of doubt whether the exceptions were taken to the instructions or to the refusal to grant a new trial. Of course, in the latter case they would not have been available. In the case of Walton v. United States, 9 Wheat. 651, it appeared that the exception was not taken until after the judgment. Opinion of the Court. The reasoning of all these cases makes in favor of the sufficiency of this bill of exceptions, and it may be laid down as a general proposition, that where a bill of exceptions is signed during the term, purporting to contain a recital of what transpired during the trial, it will be assumed that all things therein stated took place at the trial, unless from its language the contrary is disclosed. We hold, therefore, that the record shows that the exception to this instruction was duly taken, and pass to a consideration of the principal question, and that is, whether such instruction contains a correct statement of the law applicable. Its import is, that if the conductor shot when there was in fact no actual danger, although, from the manner, attitude and conduct of the plaintiff, the former had reasonable cause to believe, and did believe, that an assault upon him with a deadly weapon was intended, and only fired to protect himself from such apprehended assault, the company was liable for compensatory damages. In this view of the law we think the learned court erred. It will be scarcely doubted that if the conductor was prosecuted criminally, it would be a sufficient defence that he honestly believed he was in imminent danger, and had reasonable ground for such belief. In other words, the law of self-defence justifies an act done in honest and reasonable belief of immediate danger. The familiar illustration is, that if one approaches another, pointing a pistol and indicating an intention to shoot, the latter is justified by the rule of self-defence in shooting, even to death; and that such justification is not avoided by proof that the party killed was only intending a joke, and that the pistol in his hand was unloaded. Such a defence does not rest on the actual, but on the apparent facts and the honesty of belief in danger. By the Revised Code of Mississippi (1880) section 2878, (and this section is common to the homicide statutes of several States,) homicide is justifiable when committed in the lawful defence of the person when there shall be reasonable ground to apprehend a design to do some great personal injury, and imminent danger of such design being accomplished. In 1 Wharton's Criminal Law, 9th ed. section 488, the author says: "It is conceded on |