Collier v. Moulton , 7 Johns. 109 ( 1810 )

Thompson, J. delivered the opinion of the court.

The question arising out of the bill of exceptions in the court below, is, whether the testimony offered by the defendant, to show he had a right to enter and occupy the room in the house of the plaintiff below, where the assault and battery was committed, was improperly excluded ? The defendant below pleaded the general issue, and gave notice of son assault demesne. On the trial, the plaintiff proved, that he ordered the defendant out of his house, and on his refusing to go, gently laid his hands upon him to remove him. The defendant resisted, and struck the plaintiff. And to rebut this, the defendant offered the evidence which was rejected. This evidence ought to have been admitted. No possible objection could lie to its being received, in mitigation of damages; but it would have been proper to rebut the molliter manus, set up by the plaintiff. The case does not fall within the rule in actions of trespass, that a license to enter cannot be given in evidence under the general issue. Son assault is a plea of justification, charging the plaintiff with having committed the first assault; and proving that fact would exonerate the defendant, unless the resistance was carried farther than the necessity of the case required. If the defendant had pleaded son assault, instead of giving notice of it under the general issue, and the plaintiff intended to avail himself of the molliter manus, he must have replied specially; for he could not give it in evidence, under the general replication de injuria sua propria. (King V. Phippard, Comb. 288. 20 Virio 440. Esp. Dig. 317.) Son assault being set up by way of notice under the plea, the plaintiff had no opportunity of replying, and must, necessarily, under such pleadings, be allowed, on the trial, to give evidence of molliter manus. And if so, the defendant ought to be admitted to meet, and rebut this evidence, by showing that the plaintiff had no right to remove him from the house.

There was another error assigned, which, although not necessary for the decision of this case, it may not be amiss to notice. It is, that the declaration does not charge the assault and battery positively, but by way of recital, each count commencing with for that whereas. This might have been a good objection on special demurrer. And, indeed, in many of the old cases in the K. B. judgments have been arrested for that cause. In the C, B. a different rule prevailed. But in more modern cases, both in the K. B. and C. B. this defect has been held to be cured by the verdict. (2 Ld. Raym. 1413. 2 Wils. 303.) In the case of Douglas v. Hall, (1 Wils. 99.) Dennison, J. said, that the quod cum might be rejected, as surplusage, after verdict. And the same opinion was given, upon full consideration, by the supreme court of Massachusett, in the case of Coffin v. Coffin. (2 Tyng's Mass. Rep. 358.) There is no weight, therefore, in this objection; but upon the other ground, the judgment must be reversed.

Judgment reversed.