#### Bennett *vs.*Appleton.

To a plea of *molliter mams imposuit*in an action of *assault and battery,*the plaintiff may under a general replication of *de injuria,*recover damages for an *excess of force*used by the defendant; it is not necessary that such excess should be specially pleaded.

Error from the Oswego O. P. Appleton sued Bennett, in an action of assault and battery. The defendant, besides putting in the general issue. *283pleaded that the plaintiff, at the time when, &c. was on a platform or steps leading to the door of the house, occnpied by the defendant, using offensive language, that he ordered the plaintiff to depart, and on his refusing to do so *molliter manus*imposuit, &c. To the second plea the plaintiff replied *de injuria,*&c. On the trial of the cause, the plaintiff adduced testimony tending to show that the *platform*was part of a public highway: which evidence was objected to by the defendant on the ground, that a right of way had not been pleaded by the plaintiff, and that therefore, the evidence was not admissible under the pleadings. The objection was over-ruled, and the defendant excepted. The court charged the jury, if they should find that the platform formed no part of the *public*highway, but was appurtenant to the house of the defendant, then the defendant might lawfully remove the plaintiff; but if in so doing, he used more force than was necessary to accomplish the purpose, the plaintiff would still be entitled to recover. The defendant excepted to the charge. The jury found a verdict for the plaintiff, upon which judgment was entered. The defendant on a bill of exceptions sued out a writ of error.

**J. Crombie,*for plaintiff in error,

insisted : 1. That the evi- [ *372 ] dence in regard to the platform forming part of the highway was inadmissible, inasmuch as the effect of it was to show a *right of way*on the part of the plaintiff, which under the pleadings in the cause he had no right to do; and 2. That the court erred in their charge to the jury, in regard to the *excess of force ;*of this also he insisted, under the pleadings as they existed, the plaintiff could not avail himself. The replication of *de injuria*merely denied the excuse set up by the defendant; and if the plaintiff intended to rely upon the *excess of force*used in removing him from the platform, he should have specially set up the fact in the replication. In support of this latter position he cited, 1 *Chitty’s Pl.*563, 2, *Id.*643, *Skin.*387; *Willes,*17 ; 1 *Selw. N. P.*29, *n.*9 ; 5 *Cowen,*181; 21 *Wendell,*149.

*R. H. Tyler,*contra.

*By the Court,*

Nelson, C. J.

The counsel for the defendant below is mistaken in supposing that the plaintiff undertook to set up under the replication of *de injuria*a right of way, as an excuse for refusing to leave the premises of the defendant. If he had, the objection to the evidence would have been well taken, as the matter should have been specially replied. The ground relied upon by the plaintiff was, that he stood'upon the common highway, and not within the plaintiff’s dwelling or curtilage. This met the issue directly; and if maintained, disproved the plea. It was upon this view that the proof was received. I think the court were right also in putting the question of excess of force by the defendant to the jury. There are some cases in England, which indicate that this should be replied spe*284cially, and cannot be raised under the general replication, 1 *Bing.*217 : 1 *Carr. & P.*394. Mr. Chitty obviously countenances the view taken by the court below, and which I am satisfied accords with the prevailing practice at the circuits in this state, 1 *Chitty Pl.*563, & *n. a ;*see also, 1 *Saund. Pl. and Ev.*97, where a like opinion is expressed and supported [ *373 ] by the *authorities. See also, 15 *Mass. R.*347 ; *and*5 *Barn. & Ald.*220.

It appears to me, that the matter should be regarded within the issue upon general principles. The replication *de injuria,*in effect, traverses every material allegation in the plea, and for this reason is said to be proper when it is untrue. *Molliter manus imposuit*is an essential averment, 1 *Chitty's Pl.*524, importing that no more than reasonable force was used, and which among other matters is denied by this form of pleading. The defendant must nob only show an excuse for the assault; but also, that it was in some reasonable proportion to the circumstances under which it became necessary. If more was used, this allegation fails, and with it the plea.

I admit a new assault distinct from the one set up in the declaration and met by the plea, cannot be resorted to unless the plaintiff new assigns: but to require this in respect to the excess of resistance in the one already on the record, would be an unnecessary and useless refinement, and tend to prolixity in the pleadings.

Judgment affirmed.