majority">Richardson, C. J.

The question submitted to our decision in ihis case is, whether the plaintiff ought to have been permitted, as the pleadings stand, to shew that the assault which the defendant made upon the plaintiff was outrageous and unnecessary to his defence against the attack of the plaintiff’?

Chitty says, “ it is said that if the defendant’s battery was “ outrageous, or more than was necessary for self defence, *540“ that matters should be so replied.”(l) He again says, “ if the answer to a plea of son assault demesne be that the “ defendant was guiltj of an immoderate battery, more than “ was nee'-s«ary in self-defence, it may be put upon the “ record.”(2)

(1) 1 Chitty's PI 563.(2) 1 Chitty’s PI. 605,(3) Willei 17, note.(4) 1 Chitt'ys Pl. 605.£ 8 D. & E.’6) t Chitt. 50% b.

It is said that to a plea of molliler maims impossuit,, or “ a “ plea of resistance, or an attempt to rescue, it is competent “ to the plaintiff to reply an unjustifiable or a subsequent “ battery, as suggested by Kingsmiil Justice in the case in “21 11.7. qnrpuis cel metier de ses mains le defendant batit Ic “ plaintiff."(a)

And Chilly says, that in cases of a plea of son assault demesne, if the defendant was guilty of an immoderate battery, “ it is not unusual to deny the subject matter of the justification and also to nmv assign, although this mode oí pleading may be objectionable for duplicity.”(4) And about the time when Chi tty wrote, it was decided to be double. 10 East. 81, note. In 9 Wentworth 98, there is the form of a declaration for breaking and entering the plaintiff’s house, and making a noise. &,o, and a plea that the plaintiff was indebted to the defendant, who peaceably entered to demand payment. And a new assignment that the defendant broke and entered and made a noise “ at other and different times, “in other occasions and in a greater degree than was neees- “ sary, and after notice to depart.” The case of Weaver vs. Bush,(5) was trespass for an assault and battery : the defendant pleaded that the plaintiff endeavored with force to enter the defendant’s close, whereupon the defendant resisted, and if any damage happened, it was in defence of the close. Lord Kenyon held the plea good, and said, “A party “ may resist and oppose force with force, in defence of his “ possession, if necessary ; if the resistance be excessive, “ the plaintiff may shew that in a new assignment.”

Chtlty makes a quaere, whether an immoderate battery should not be stated by replication, instead of a new assignment, because it shews the defendant a trespasser ab initio. (6) But it seems to be now the usual practice in England to new assign in such a case.

(1) 1 Chittv, 563, a.

Chi tty however makes n. quiere whether in a rase like íbe 01,!. now before us, a replication of de injuria might not, be -'>,!tTicient.(l) And it seems that the practice in England w-- formerly so to reply, Buller N. P. 18.—Salk. 642, Cockroft vs. Smith.—Siderfin 246, Dana and Ducy.—11 Mod. 43.—1 L. Raymond 177.

It is sai l now to be the practice in Massachusetts to reply de injuria to a plea of moderate oastigavit and shew in evidence that the beating was excessive. 15 Mass. R. 347, Hannm vs. Edits. And we have no doubt that the practice has been in this state, to shew that the assault upon the plaintiff was outrageous, upon pleadings similar to those in this case. And although we are of opinion that in a case like the present, a new assignment is a mere technical and proper answer to a plea of son assault demesne, than a replication of de injuria son propria, yet we think that the difference between them is not of sufficient importance to justify us in a sudden change of the practice to the prejudice of an individual. The real objection to shewing an excessive battery on a replication of de, injuria, is that, (hr pleadings do not give the defendant notice that the plaintiff intends to insist on such a battery, and that the defendant may be thus surprised : but a case will very rarely occur, in which a de-pendant can be actually so surprised. And we are on the whole of opinion that the evidence was properly admitted and that there must be

Judgment an the verdict.

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