#### Gertrude Crossman, plaintiff and respondent, *vs.*David Harrison, defendant and appellant.

In an action for an assault and battery alleged to have been committed by the defendant upon the plaintiff, in the course of his assisting the infirm mother of the latter to remove from her (the plaintiff’s) house, which assistance was justified upon the ground of a request by such mother therefor, comments by the judge at the trial on the supposed contents of a will executed by such mother shortly after such removal, but not admitted in evidence, as being favorable to the defendant and evidence of improper motives on his part, in aiding such removal, accompanied by a direction to the jury to see whether the defendant from such motives designed, when the removal was effected,, to have that will executed, were *held*to be erroneous, as tending improperly to enhance the damages by the consideration of matters not in evidence; for which a judgment for the plaintiff should be reversed.

(Before Mokeli., Gabvin and Jokes, JJ.)

Heard February 8,1866;

decided March 12, 1866.

*39Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial, in an action for an assault and battery. The jury rendered a verdict in favor of the plaintiff, for $1500.

This was an action for an- assault and battery. The defense consisted of a general denial; The evidence, on the trial, was conflicting, both as to the character and extent of the assault. The defendant’s counsel claimed for him, that at the request of the plaintiff’s mother he went to the house occupied by the plaintiff, her husband and her mother, for the purpose of removing the plaintiff’s mother, who was infirm, therefrom, at her request, and that the plaintiff resisting such removal, he used no more force than was sufficient to effect such removal. The plaintiff’s evidence shows two assaults, one down stairs and another up stairs, but both at the time of and connected with the removal of the mother. The evidence was conflicting also as to whether the amount of force used was more than sufficient to effect the removal or not. The plaintiff’s counsel claimed further, that her mother was imbecile, and incapable of any intelligent operation of mind, and, therefore, incapable of making any request, or giving any direction, that would justify the defendant in removing her from the care and custody of the plaintiff, without her assent, as she was the natural guardian of her mother. There was evidence to that effect. There was also evidence to the effect, that the plaintiff’s mother, *at the time of the*removal, showed no indications of imbecility; that the defendant undertook her removal at her request, believing her to be fully capable of making such request, and of forming a sound judgment as to its necessity; and that in undertaking her removal he acted from motives of humanity, and for the good and welfare of the plaintiff’s mother. The removal was effected. Shortly after the removal, the plaintiff’s mother executed to the defendant a deed of certain property, and also made a will. The contents of neither of which appeared in evidence, they not having been admitted on the trial. The will- was excluded by the presiding judge, and the deed was not offered. The consideration of such deed, *40however, appeared in an inquisition finding the plaintiff’s mother'to be of unsound mind, a part of which consideration' was, “ a decent support and maintenance during natural life."

The presiding judge, after charging the jury substantially that if they found that the plaintiff’s mother was, at the time of the removal, of unsound mind so as to be incapable of taking care of herself and incapable of forming and expressing a wish, the defendant had shown no justification. But if they found that she was of sound mind, capable of forming and expressing a wish, and capable of taking care of herself, the defendant had a right, in a quiet, proper way, to assist her in removing, and in so doing to use such force as might be necessary to prevent any person who should seek to impede such removal from •effecting his or her object; but if he used more force than was necessary to overcome any obstacle to such removal, that would be an assault, for which he would be liable. He further charged that if the jury, under such instructions, should find a technical assault, they should, in estimating the damages, consider the hnimus, or motive, of the defendant. On the subject of such animus, he charged as follows: “If the defendant believed honestly that the old lady was treated badly; that she was starved and uncomfortable ; and that she desired to remove, that should go in mitigation of damages ; that is to say, if he acted honestly and properly, although from a mistaken motive, he ought not to be punished as he would be if he had willfully perpetrated the injury from wrong motives.’’ That the jury were to “ consider, also, whether he *designed to remove her for improper motives.** * A short time after the removal he procured a deed to be executed to him by her, conveying to him certain property, and a short time thereafter a will, which * conveyed to him her property absolutely, without any trust, so that he might dispose of it as he saw fit, after deducting the payment of her funeral expenses and debts ; the balance she” gave '“to him absolutely,” ‘feeling,’ as she says, ‘ that he would’ make good and honorable use of the same for the benefit of ‘ her and her heirs after her frail body was *‘*mouldering in the earth.’ That is not a trust—it *41is simply an expression of confidence in him. That the jury were to see whether, when the removal was effected, he designed to have these papers executed, and from improper *motives;*whether his motives were good and charitable, would be for them to consider.”

To as much of the charge as related to the will, the defendant excepted.

The jury rendered a verdict of $1500 against the defendant, when judgment was entered, from which judgment the defendant appealed.

*Cyrus Lawton,*for the defendant, appellant.

*SicJcles & Gushing,*for the plaintiff, respondent.

By the Court,

Jones, J.

As the will was not in evidence, the learned judge committed an error in adverting to, and giving a construction of it.

This error could not fail to be prejudicial to the defendant. The judge, in effect, told the jury that the animus of the defendant should have a great effect on the damages; that if he acted honestly, solely, with a view to the welfare of the plaintiffs’ mother, the damages should be less than if he acted from wrong motives. He then charged the jury that in this question of animus there was evidence that the defendant shortly after the removal, procured from the plaintiff’s mother a will giving him all the property absolutely, unconnected with any trust; and the judge left it to a jury to say whether the removal was made with a design to have the will executed, and from improper motives, or whether his motives were good and charitable.

The effect of this charge as to the will was necessarily to influence the jury to find, upon a matter not in evidence, that the removal was from improper motives ; and upon such a finding, to lead the jury to enhance the damáges under the charge that the damages should be greater if the animus was improper than if it were good and charitable.

*42It may be urged that the judge spoke of the deed made by the plaintiff’s mother to the defendant, in the same connection with the will, and that the damages would have been the same if he had said nothing about the will. That, however, we cannot determine. It is impossible to say what importance the jury attached to the deed, or what they attached to a will of the character which the judge told them the defendant had procured to be executed ; and it is equally impossible to say to what extent the jury, in finding the damages relied on the charged fact that a will of this character had been procured by the defendant.

But, again ; the judge did not assume to give a construction to the deed. It was before the jury that a part of the consideration of the deed was the support and maintenance of the plaintiff’s mother during her life. If the deed stood alone, the jury might have come to the conclusion that it was but a fair and proper provision for the charges and expenses the defendant might be put to in supporting the plaintiff’s mother during her life.

Again ; it may be urged that the judge’s remarks as to the will were confined to the assault up stairs, and that the damages were given solely for the assault down stairs. There is, however, nothing to enable us to say that the jury made any such discrimination. For aught that appears, they may have given their verdict solely for the assault up stairs, or for both assaults,

, There must be a new trial, with costs of the appellant, to abide the event.

Judgment reversed, and a new trial granted, costs to abide the event.