
    Isaac S. Loring vs. Joseph W. Aborn.
    If the defendant, in an action of trespass for an assault and battery, pending in the court of common pleas, having obtained the right to open and close, by filing an admission under the forty-first rule "f that court, justify the trespass, on the ground of lawful authority, the burden of proof will be on him to show that he did not use more force than was necessary.
    This was an action of trespass for an assault and battery, tried before Mellen, J., in the court of common pleas. The alleged assault was committed in putting the plaintiff out of a railroad car, of which the defendant had charge as a conductor, on the Boston and Maine Railroad, from Lawrence to North Andover. The defendant justified, on the ground, that the plaintiff refused to give up his ticket, as required by the regulations of the railroad; and he also filed an admission, . under the forty-first rule of the court of common pleas, to entitle himself to the opening and close of the case. The presiding judge ruled, that the defendant’s admission was sufficient for this purpose, and the trial proceeded accordingly; but he instructed the jury, among other things, that the burden of proof was on the plaintiff to prove that the defendant used more force than was necessary to expel the plaintiff from the cars. The defendant having obtained a verdict, the plaintiff excepted.
    
      N. W Harmon,, for the plaintiff,
    cited Imason v. Cope, 5 C. & P. 193; Simpson v. Morris, 4 Taunt. 821.
    
      G. Minot, for the defendant,
    cited Oakes v. Wood, 2 M. & W. 791, 797; Penn v. Ward, 2 C. M. & R. 338.
   Fletcher, J.

The verdict in this case must be set aside, tor the reason that the instruction of the court below, that the burden of proof, as to the excess of force used on the plaintiff, was erroneous. The defendant having obtained the opening and close, took upon himself the burden of proof, to justify all he did, to make out a good justification throughout. Such was the decision in the case of Hannen v. Edes, 15 Mass. 347, under the old system of pleading, and on technical grounds. But here the case is much stronger, because the defendant voluntarily assumes the general burden of making out a full justification of all he did, and for that purpose obtained the right to open and close.  