¶1Several exceptions were taken at the trial which were not insisted on at the argument. They must be regarded as waived.
¶2The assault and battery alleged took place in the defendant’s shop, where the plaintiff seems to have gone to adjust a money account with the defendant. When the plaintiff entered the shop, the defendant was making some offensive remarks, which the jury might find applicable to the plaintiff, and soon after-wards made the assault. It was proper to prove the remarks as part of the res gestee; also the amount of the bill which was part of the account; and the amount of money afterwards paid on the account by the defendant. These facts were pertinent, though not very material.
¶3As the defendant testified in the case, it was proper to prove any insulting remarks made, or questions put, by him to the plaintiff at a subsequent time, in regard to the injury inflicted by the defendant; for they tended to show his state of mind towards the plaintiff. Day v. Stickney, 14 Allen, 255.
¶4The plaintiff’s testimony as to what he said to Benjamin Smith in November 1867, several months after the assault and battery, was competent, because it tended to explain an apparent contradiction. The plaintiff had testified on cross-examinatian, that he never, before the assault and battery, received an injury similar to that which he received then. He was inquired of as to what he said to Smith on the subject, in 1864, when he Went to get a colt shod, and denied having made certain remarks *210at that time. Smith and O’Connell had been called to contradict him ; and had testified to certain conversations, stating the times when they took place. The plaintiff’s testimony in reply tended to show that they were mistaken as to the time, and had no bearing on the case in any other respect. For this purpose it was admissible.
¶5But the exception principally relied upon relates to the burden of proof. The court ruled, in substance, that the burden was or. the plaintiff to prove the assault and battery, but was on the defendant to prove any facts relied on by him in justification. The defendant’s position is, substantially, that the plaintiff must prove that the act was unjustifiable. We understand the rule to have been established the other way from the earliest times. In the pleadings the plaintiff alleged the violent acts, and upon proof of them was entitled to maintain his action ; and the defendant in his plea must allege such facts as he relied upon in justification, and in order to defeat the action he must prove the truth of his allegations. The rule is not changed by our present system of pleadings. Exceptions overruled.