the first assault, but can justify it, as if he did it in defence of his master, his wife, or his possession, he must reply specially; for he cannot give such matter of justification in evidence under the general traverse de injuriáa. In an action for an assault, the declaration stated that the defendant beat, bruised, and wounded the plaintiff'; to a plea of son assault demesne, the plaintiff replied de injuria, and at the trial it appeared that the plaintiff got off his horse, and held up his stick at the defendant, who thereupon struck him; the court held, that the plaintiff ought to have replied specially; and it having been left to the jury, whether the plaintiff was so far the aggressor as to justify the assault, and they having found in the affirmative, the court refused to disturb the verdict ". e excuse. In an action for an assault, if the defendant plead son assault Matter of demesne, or that he arrested the plaintiff upon hue and cry levied, de injuriá, is a good replication, for it consists only of matter of excuse. So if the defence be a moderate correction of a servant for his neglect of service, de injuria, &c., is a good replication, if the plea be untrued. But such replication does not put in issue "the moderateness of the chastisement;" to raise that question the plaintiff must reply "excess." So, if to a declaration for an assault and battery, the defendant pleads that he was seised in fee of a close, and had cut his corn, and the plaintiff came to take away his corn, and the defendant in defence thereof, &c., de injuriá or de son tort, is a good replication; for title is alleged only as a matter of inducement, and the defendant, in his action, claims nothing in the soil or corn, but only damages for the battery, which is merely collateral to the title 1. So in trespass to personal property, if the defendant merely When a replication de injuria is improper. What de injuriâ puts in issue. justify the chasing cattle, or removing goods from land of which he was possessed, the replication de injuria, will be sufficient, Where to a plea in trespass de bonis asportatis, justifying the removal of chattels, because they incumbered a close of which the defendant was possessed, &c.; the plaintiff replied as to part of the goods, de injuria, &c., and as to the other part, extra force and violence; it was held good on special demurrer, for such a replication may afford several answers to different portions of the chattels; for some of the goods on which the defendant trespassed, might not have been on the close at all; and such as were, might have been treated with unnecessary violence in the removal of them. The plaintiff, therefore, ought to be permitted to present these facts in answer to the plea. Though the mode of pleading was uncommon, still there was no objection to it in law b. De injuria sua propria is improper whenever the defendant by his plea claims any interest in the land, or the subject matter in respect of which the plaintiff declares, as a right to distrain for rent in arrear, or a right of common, a right of way, or the like; in all such cases the plaintiff should reply specially according to the facts. So where the defence rests upon an authority of law, as a process warrant, &c., or as the servant of another, or by his command, or upon an authority or power derived from the plaintiff; or if the plea contain matter of record not stated merely as an inducement; in all such cases, the plaintiff must either deny the title, authority, &c., according to the facts of each particular case, or protesting, (which in effect admits these matters,) he must reply de injuriá absque residuo causæ d Where matter of record is denied, the replication should be nul tiel record. By the replication de injuria sua propria, the whole matter of the plea is put in issue, and must be substantially proved as far as it is material to constitute a justification; for the cause alleged is the matter of excuse alleged, and all the material allegations form but one cause or excuse *. Where the plaintiff declared for breaking and entering his house, imprisoning him; and for an assault and battery; and the defendant justified entering the house and arresting the plaintiff under a writ of attachment and a sheriff's warrant upon it, and alleged, that because the plaintiff, after he had been so arrested, behaved and conducted himself in a violent and outrageous manner, and could not otherwise be kept in safe custody by the defendant, the defendant was obliged to push and pull about the plaintiff'; replication de injuria, &c. Upon the trial, the arrest under the process was proved, and the plaintiff also proved the battery after the arrest; but the defendant gave no evidence of the outrageous conduct of the plaintiff while in custody; held, that the justification was not proved, and that the plaintiff was entitled to a verdict. But it is sufficient to prove so much of the facts alleged, as will, in point of law, amount to a justification. And if the plea consists of two facts, each of which would, when pleaded alone, amount to a good defence, it will be sufficient for the defendant, if one of those facts be found by the jury c. And it is sufficient to prove a justification which covers the trespass, although it does not cover the matter of aggravation. As, where to an action for an assault and false imprisonment, the defendant pleaded that he was possessed of a shop, and that the plaintiff had been making great noise there, and disturbed the defendant in the peaceable possession of his shop, in breach of the king's peace, and that he caused a great concourse of persons to assemble and disturb the defendant, and thereby caused a riot and disturbance, whereupon the defendant, in order to preserve the peace, gave the plaintiff in charge to policemen, who took him to a station house, and thence before a magistrate, who discharged him; held, that even without the allegation of riot, the plea disclosed a sufficient justification; and that the facts stated, amounted to a breach of the peace, and justified the defendant in directing the imprisonment 2. So, where in trespass for breaking and entering the plaintiff's house, and expelling him therefrom, the defendant only justified the breaking and entering; it was held sufficient, for the breaking and entering were the gist of the action, and the expulsion was only matter of aggravation. If the plaintiff had wished to take advantage of it, he should have shewn it in a new assignment; for where any thing is inserted in the declaration, as matter of aggravation, the plea need not answer or justify that, for the answering of that which is the gist of the action, will cover the whole of the declaration c. SECTION VII. NEW ASSIGNMENT. A NEW assignment is in the nature of a new declaration, or rather it is a repetition of the declaration, differing only in this, that it distinguishes the true ground of complaint as being dif ferent from that which is covered by the plea, and it is consequently to be formed with as much certainty or specification of circumstances as the declaration itself. Where the defendant has committed several trespasses either upon the person, personal or real property of another, some of which were justifiable and others not, and the action is brought for those trespasses which were not justifiable, but the defendant by his plea answers only those which were so, the plaintiff should new assign. Thus, in an action of trespass for an assault, if there have been two assaults, one justifiable on the ground of a Cohen t. Huskisson, 2 Mees. & Wels. 477. See Timothy v. Simpson, 1 C. M. & R. 757. Taylor v. Cole, 3 T. R. 292. 1 H. Bl. 555. Monprivatt 1 Saund. 28. a. Smith, 2 Camp. 175. Lambert r. Hodgson, 1 Bing. 317. d1 Saund. 299. c. 1 Ch. PL 624. Steph. Pl. 245. its having been committed in self defence, and the other not; and the declaration contains only one count for an assault, and the defendant pleads son assault demesne; the plaintiff should new assign the illegal assault, viz. by stating that he brought this action not for the assault alluded to and answered in the plea, but for another and a different assault committed on a different occasion; otherwise, if the defendant proves the justification he will be entitled to a verdict, for the plaintiff will not be allowed to give evidence of an assault committed on a different occasion. For when the trespass in the plea is alleged to be the same trespass which is in the declaration, if the plaintiff traverses the cause of justification he thereby admits it to be the same trespass, and he cannot afterwards give evidence at the trial that the trespass in the plea is a different one from that intended in the declaration; hence the foundation of a new assignment b. If the plaintiff were arrested on a warrant granted previously to the issuing or delivery of the writ, and in an action for an assault and false imprisonment the defendant justify under the writ upon which the plaintiff was arrested, the plaintiff should new assign c. So, where the plaintiff was properly arrested at first, but is detained after he has been duly discharged by the person at whose suit he was in custody, and in an action for false imprisonment the defendant justify under the writ upon which the plaintiff was arrested, the plaintiff should new assign the subsequent detention d. It has been said that in an action for an assault and battery the plaintiff may give evidence of excess, i. e. that the battery was more than was necessary for self defence, under de injuria, without a special replication or new assignment ®. But according to all the authorities, matters of aggravation or 1 Saund. 299. a. 1 Ch. Pl. 626. b2 Saund. 5. e. с 1 Saund. 299. a. d Id. See also Lambert v. Hodgson, 8 Moore, 326. 1 Bing. 317. 1 Ch. Pl. 627, on the authority of a dictum of Littledale, J., in Reece v. Taylor, 1 H. & W. 16, in these Matter of aggrava tion must be newly assigned. |