¶1delivered the opinion of this court.
¶2This action was brought by the appellant in Carroll county court. It is certainly an action of tresspass vi et armis and brought to recover damages done to the person of the plaintiff. It is to be regarded as an action of assault and battery, or perhaps rather of false imprisonment.
¶3The second plea is a” plea of justification, and tells us that the defendant was at the time the sheriff of the county, and had in his hands process which required him to arrest the plaintiff. The replication certainly is faulty: it finds the plaintiff’s cause of action in a refusal by the defendant to take a bail piece when the plaintiff offered one to him.
¶4The replication, it i§ not attempted to sustain, but the defendant having demurred to it, this demurrer we are told, has *313the effect of opening to the court, not only the pleading demurred to, but the entire record, and judgment will be given against the party who commits th« first fault. It, would seem however, that there is an exception thereto to wit: when the replication to an insufficient plea is not only defective in matter, but also show's that the plaintiff has no cause of action. Gould on Pleading, ch. 9, sec. 39.
¶5There are no doubt, many objections to this plea, if they had been made in the form of a special demurrer. But the plaintiff has put in a general demurrer, which prevents him from taking advantage of defects which have been noticed in the argument.
¶6In an action of assault and battery, or false imprisonment, there will be usually found in the declaration many matters of aggravation, which it cannot be necessary to notice in a plea of justification. To a declaration for an assault and battery, if the defendant pleads son assault demesne he need not traverse such matters alleged, as that £{of his life it was greatly despaired,” so if he justify the arrest or imprisonment of the plaintiff, alleging himself to have been sheriff at the time, he need not answer such matters set forth in the declaration, as would have given the plaintiff a good cause of action, if the acts complained of, had been the acts of a private individual.
¶7An absque hoc, or a protestando, in the proper places, certainly would improve this plea, but then the objections to be taken must be such as the party taking them, may avail himself of upon a general demurrer.
¶8The most important omission perhaps in this plea, is the want of an averment, (hat the trespass justified, is the same trespass that is complained of by the plaintiff, yet it is not thought that of this omission advantage can be taken upon this general demurrer.
¶9The authorities tell us that unless there be an estoppel the matter of the plea must be either a denial of the cause of action, or a confession and avoidance of it. See Archbold’s Civil Pleadings, 200.
¶10After giving us cases in illustration of this, he adds, p. 202. *314“If the pleas do not confess the cause of action, the plaintiff may demur specially for that cause.”
¶11As to other objections which might be made, it may be answered, that although many things alleged ought to be traversed, yet the fact traversed should be so material and essential a part of the cause of action or defence, that denying it with success will have the effect of destroying the cause of action, or the defence altogether. Archbold, 187.
¶12Matters of aggravation need not be answered. In a case like this, the plaintiff must rely upon them in his replication or there must be a new assignment.
¶13JUDGMENT AFFIRMED WITH COSTS.