#### Daniel Hannen *versus*Robert Edes.

trespass for an assault and battery: the defendant justifies that, as master of a ship, he moderately chastised tire plaintiff, who was a mariner on board the same ship, for disobedience of orders, and avers it to be the same beating, &e. The plaintiff replies *de injuria sua proprio,*&c., on which issue is joined. It was liolden that it was competent for the plaintiff under this issue, to prove that the beating was excessive, and out of all proportion to the oflence coinmitteu and that it was not necessary to reply such matter specially.

This was an action of trespass for an assault and battery. _ The defendant pleads, in bar, that at the time when, &c., he was master

*314of the ship *Cicero,*then in a distant port; that the plaintiff was a seaman, or mariner, on board the same ship; that he, the defendant, issued a reasonable and proper order to the plaintiff, relative to his duty on board the vessel, which the plaintiff wilfully disobeyed; and that he, the defendant, moderately chastised him for such disobedience ; — which is averred to be the same beating complained of in the declaration. The plaintiff replies *de injuria su., proprio absque tali causa,*&c., on which issue was joined. The general issue was also pleaded and joined, but was stricken out, on the defendant’s motion, at the trial.

* On the trial of the other issue, before the *Chief Justice,*the defendant having proved his justification, so far as respected his authority, the duty of the plaintiff, and his disobedience of a reasonable and proper command, the plaintiff was permitted to show, in evidence, (the defendant objecting,) and to insist to the jury, that the beating complained of was excessive, and out" of all proportion to the offence committed ; and having proved this, a verdict was returned in his favor. The defendant moved for a new trial, on the ground that the said evidence was improperly admitted ; contending that, if the plaintiff relied upon any excess or unreasonableness in the beating, he ought to have set it forth specially in his replication, in the nature of a new assignment.

In support of the objection, the following argument was submitted m writing by

*Stearns,*for the defendant.

The evidence objected to was not i el-want to the issue. The replication puts in issue these facts and w other, *viz.:*1st. That the defendant was master; 2d. That toe plaintiff was a mariner *on*board the *Cicero;*3d. That the de tenuant issued an order; 4th. That the plaintiff refused obedience; and, 5th, That the defendant, to enforce obedience, inflicted the chastisement complained of. Nothing, therefore, could properly be given in evidence which would not tend to disprove one of those fact-s. If the plaintiff would avail himself of any circumstance of excess or aggravation, he should reply such matter specially.

The rule seems to be *general,*that in *all*actions of trespass, if the defendant justifies, and the plaintiff relies on any fact or circumstance which either deprives the defendant of the justification, or shews that he is a trespasser *ab initia,*he must reply it specially, instead of replying *de injuria sua,*&c.; because such factor circumstance cannot be given in evidence under the issue *de injuria.*

1 *Esp. Dig.*335.

* The case of *Sayer*vs. *The Earl of Rochford,*2 *W. Black.*1165, is precisely in point. There, the defendant justified under a warrant issued against the plaintiff for treasonable *315practices. The plaintiff replied *de injuria,*&c., and attempted, under this issue, to give in evidence a tender and refusal of bail. The evidence was rejected, because, if the plaintiff relied on that point, he should have replied it specially.

So, in *Montprivatt*vs. *Smith,*2 *Campb.*175, which was trespass for breaking and entering the plaintiff’s house, staying therein six weeks, seizing goods, &c. Justification under a *fieri facias,*for entering, &c., and tarrying twenty-four hours. Replication (admitting the writ) *de injuria,*&c., *absque residua causa.*The plaintiff relied upon the defendant’s having continued in the house beyond the twenty-four hours. But Lord *Ellenborough*held that the replication did not put the length of time in issue, and nonsuited the plaintiff.

In *Warral*vs. *Clare,*2 *Campb.*629, the same doctrine was held by Sir *James Mansfield,*who nonsuited the plaintiff, because he had not replied specially the matter which he attempted to give in evidence under the issue of *de injuria,*&c., *absque residua causa.*

The other cases upon this subject are *Taylor*vs. *Cole,*3 *D. & E.*296. - -1 *H. Black.*555, S. C. — *Gundy*vs. *Feltham,*1 *D. & E.*338, per *Buller, J.—Dye*vs. *Leatherdale & Al.*3 *Wils.*20. — *Scott*vs. *Dixon & Al.*2 *Wils. 3.*— See, also, 2 *Chitty’s Pleadings,*642, note (t).

This subject was considered in *Oystead*vs. *Shed & Al.*12 *Mass. R.*506, and the doctrine contended for seems to be fully admitted by the Court. In that case, the plaintiff had alleged, in his declaration, that the defendants- broke the locks, &c., and with great violence forced open the outer door of his house. The defendants justified their entry under process; to which the plaintiff (admitting the process) replied *de injuria,*&c., *absque residua causa*• and he contended that this traverse denied that the outer door was open, as suggested in the plea. But the Court held, that this * suggestion could not be considered as an averment of a material fact by the defendants, and said, “If the plaintiff could prove that the defendants broke open the outer door, and relied upon that as rendering the whole proceeding tortious, he should have averred the fact distinctly in his replication.”

So, in the case at bar, the allegation in the declaration that the defendant beat the plaintiff with great severity and cruelty is an immaterial averment; like the averment in 1 *Vent.*217, that the escape was voluntary; and in 3 *Wils.*20, that the defendant, after taking, converted the plaintiff’s goods to his own use ; —which were considered proper to come in by way of replication, but in the declaration they were improper and premature. So, in the present case, the justification, without averring that the chastisement was moderate and reasonable, would have been *prima facie*good. That *316averment, therefore, although unnecessarily inserted, could not have been traversed by a direct “ *absque*hoc, that the beating was moderate and reasonable.” *A fortiori,*it cannot be traversed by the *absoue tali causa,*which is only a traverse of the cause, and not of the manner or degree of the chastisement. And no evidence should have peen admitted which did not tend *directly*to disprove the cause thus put in issue by the general traverse. The observation of the court, in the case of *Sayer*vs. *The Earl of Rochford,*before cited, is perfectly applicable to this case. *“*The plaintiff declares on a fact which, at first view, is a trespass. The defendant, in his plea, acknowledges that fact, but states such new circumstances as, if true, amount to a justification. If, then, the plaintiff can suggest additional new matter, which shows that the defendant’s assertions, although true, will not justify the trespass committed, he ought to reply the new matter in special replication, that the defendant may demur, or take issue upon it.” “ The traverse is contained in the words *absque tali causa,*without the cause alleged by the defendant. Whatever, therefore, goes to *disprove that * cause,*is admissible evidence, but nothing else.” The defendant cannot be expected to come to trial prepared to prove what is not clearly put in issue. And it is convenient for the Court, as well as for the jury, that the point in issue should be single, and distinctly stated.

It is therefore submitted that the verdict in this case ought to be set aside, and either a verdict entered for the defendant, or a non-suit, or at least a new trial granted.

*Moore*for the plaintiff.

Parker, C. J.,

delivered the opinion of the Court. The argu ment of Mr. *Stearns,*and the authorities cited by him in support of his position, were sufficiently in point to excite doubts in our minds, whether the' replication is sufficient to let in the proof by which the defence in the plea was avoided — notwithstanding the uniform practice has been to plead in this way on such occasions.

On consulting the precedents and entries, we do not find a single instance of a special replication, or new assignment, to a plea of *moderate castigavit;*and we all recognize the practice of avoiding the effect of such plea by evidence of cruelty or vindictiveness in the beating, on the issue of *de injuria suá,*&c. Upon examining the authorities, and attending to the reason of them, we are now satisfied that the practice has been right, and is not opposed to the principles contained in the authorities which have been cited.

The general doctrine upon which the whole matter rests is hat, whenever the defendant’s plea, in an action of trespass, confesses and avoids, by justifying the whole trespass set forth m *317the declaration, and the plaintiff would set up some new matter as the foundation of his action, he shall show that new matter specially, as in the case of *Scott*vs. *Dixon Sf AL,*cited in the argument. Where, in trespass, the defendant justifies under a license, for putting his cattle into the plaintiff’s close, the plaintiff may reply that he put them in at another time without leave, and he shall not show this in evidence under the general *traverse;*for, not having specified the time in his declaration, and * there being but one trespass complained of, the justification shall be held to apply to that, unless the plaintiff shows another and distinct trespass, in such manner as to give the defendant an opportunity to deny or justify it.

So, in the case of *Dye*vs. *Leatherdale & Al.,*also referred to in the argument for the defendant, which was trespass for taking and carrying away a hog, and converting him, &c., the justification was, that the hog was taken damage feasant; to which the plaintiff replied specially, acknowledging the justification, and averring that the defendant *afterwards converted*the hog to his own use. This was held to be good pleading; because it alleged a new fact, different from that which was justified in the bar.

And in the case of *Oystead*vs. *Shed & Al.,*the doctrine relied upon by the counsel for the defendant rests upon the same principle, *viz.,*that the breaking of the outer door was a new fact, not relied upon in the declaration, except by way of aggravation; and therefore, as the trespass, as alleged in the declaration, was justified, the plaintiff, in order to take advantage of this, ought to have replied it specially. And to this effect are all the other authorities cited for the defendant.

Now, if the case before us cannot be distinguished from those which have been cited, the pleading in this case was wrong for the plaintiff’s purpose, and the whole practice of the state has been wrong. But we think it is clearly distinguishable. In the plea of *moderate castigavit,*the defendant must not only make out his authority, and the cause of the beating, but must also show that the beating was, in fact, moderate ; so that if, by his own evidence, it should appear that he had abused his authority, and inflicted blows unnecessary for the purpose, or cruel in the degree, the issue would fail him entirely ; and it would be of his own wrong, and without the cause set forth in his plea; and this not upon the ground of his being a trespasser *ab initia,*so much as because he shows no right at all to inflict any beating, in the manner and to the degree which the * evidence would prove; and he therefore falsifies his own plea.

If the plaintiff intended to rely upon another beating, different *318in p >int of time from that which was justified in the plea, he should hay-j replied specially, and set forth such different beating; but if there were but one, as in the present case, and the answer to the justification was intended to be, that that very beating was immoderate, and therefore not justified, the general traverse is right. And so are the authorities, as will be found in *Franks*vs. *Morris,*10 *East,*81, note (a), and more at large in 1 *Sound.*299, note (6), by Sergeant *Williams,*which were referred to in the argument of the counsel for the plaintiff.

The truth is, the plaintiff had no new cause to assign. The beating which he complained of was the same with that attempted to be justified ; and by his replication *de injuria suá, &c.,*he denies the justification. He does not show that afterwards, *viz.,*after the moderate chastisement averred in the plea, there was a further excessive beating; but that the beating itself, alleged to be moderate, was excessive, and so defeated the justification ; and thus, we think, the uninterrupted practice is reconcilable with the authorities.

There is an old case, reported in *Siderfin,*246, and *Keble,*884, which was an action for an assault and battery ; and wounding and mayhem, by breaking the arm, were alleged. Upon a plea of *son assault demesne*the plaintiff demurred, stating, as the ground of his demurrer, that as a heinous battery and a mayhem were alleged, the plea ought to have shown an assault sufficient to justify such a battery. But it was bolden that the plea was good; because the degree and proportion of the beating to the assault was matter of evidence. If it was not proportionable, the issue would be for the plaintiff, notwithstanding he made the first assault; otherwise, for the defendant. The same principle is applicable to the case before us. The degree and proportion between the offence and the punishment was matter of * evidence ; and being found disproportioned, the issue was rightly found for the plaintiff, notwithstanding the matter set forth in the plea, (a)

*Judgment on the verdict.*

(a)

**Mr. *Phillips,*in his excellent Treatise on the Law of Evidence, says, " It seems to be the better opinion that, when the trespass is alleged in the declaration in general terms, and it is justified in the like terms, if the defendant has inflicted a greater injury on the plaintiff than he ought to have done, the excess is properly the subject of a special replication.” — *2 Phill.*204, 7th *Lond.*ed. — *Dale vs Wood,*7 *Moore,*33.— *Bowen*vs Parry, 1 *Car. &*Payne, 394. — *Franks*vs. *Morris,*10 *Fast,*79, n *—Skin*rner, 387.--See *Phillips*vs. *Howgate,*5 *B. & A*220 *—Cockroft*vs. *Smith, 2 Salk*642 — *Bull.*N. P. 15. — 1 *Chitty, Pl.*625. — 3 *Chitty,*1201, 5th *Lond.*ed.