
    Frederick v. Gilbert.
    Under the replication da injuria to a plea of son assault demesne, the defendant cannot give evidence in mitigation of damages, nor contradict the averments of aggravated injuries laid in the narr: he is confined to proving an excuse for the battery.
    Where additional counts have been filed, the plaintiff cannot be put to his election as to which he will proceed on.
    In error from the Common Pleas of Dauphin county.
    The plaintiff declared for an assault and battery, averring that defendant had knocked out two of plaintiff’s fore-teeth; and that by reason of the injuries inflicted he was confined to his bed for thirty days, and disfigured for life.
    
      Subsequently, be filed two additional counts, tbe first of wbicb was tbe same in substance as tbe original narr., and tbe second was for an assault and battery generally. Tbe defendant pleaded son assault demesne, and tbe plaintiff replied de injurié.
    
    On tbe trial, and before tbe plaintiff bad opened bis evidence, defendant required tbe court to compel tbe plaintiff to elect on wbicb count be would proceed; wbicb tbe court refused to do. Tbe defendant then offered to prove in mitigation of damages that be bad been prosecuted, convicted, and fined for tbe assault and battery; wbicb tbe court rejected. He also offered other evidence in mitigation, and also to show that tbe injuries allegéd in tbe narr. bad not been sustained; which tbe court rejected.
    Tbe court (Hepburn, P. J.) instructed tbe jury that tbe plea admitted tbe cause of action as set out in tbe narr.; and that if tbe justification failed, they bad nothing to do but assess tbe damages.
    In answer to defendant’s points be further said, that tbe matters of aggravation and tbe consequential damages and injuries averred, were admitted by tbe pleadings.
    
      Fisher, 'for plaintiff in error.
    
      JFunkle and McAllister, contó.
    
      July 3.
   Burnside, J.

This action was trespass vi et armis, for assulting and beating tbe defendant in error. There were two counts in the plaintiff’s declaration: first, for an assault, beating and wounding tbe said George in a most violent manner in bis face, and on bis head and breast, striking tbe said George in tbe mouth and knocking out two of bis fore teeth; second, for seizing and laying bold of the plaintiff, and with great force and violence, pulled, shook, and dragged about tbe plaintiff, and then and there struck tbe plaintiff many violent blows, throwing tbe plaintiff with violence on tbe ground, by means of wbicb be was greatly hurt and bruised, and following it up with tbe aggravation of great suffering, confinement, &c.

To this, Frederick, tbe defendant, pleaded at length and in form son assault demesne, and tbe plaintiff replied at length in form de injurié sua propria absque tali causa; and on this issue alone tbe jury were sworn.

Tbe first error assigned is, that tbe court refused to compel tbe plaintiff to say on which count in tbe narr. be proceeded to trial, and in default of bis doing so, refusing to continue tbe cause. There is nothing in this assignment of error. The court were not hound to direct the plaintiff’s counsel as required. The counts were substantially the same ; the enormity of defendant’s conduct was declared in both, and they were not inconsistent with each other. The court refusing to continue the cause was a matter of discretion, and so purely so, that it is not the subject of error.

The plaintiff then read his declaration and rested; and the defendant proceeded to call his witnesses to prove his plea of son assault demesne, The defendant, at the conclusion of his evidence, offered the indictment at November sessions, with his conviction, fine, and costs, amounting to $146.75, in mitigation of damages. If the defendant had pleaded not guilty, I think this evidence would have been admissible for the purpose for which it was offered. But under this plea of son assault demesne in excuse, with the general replication de injurid, &c., the burden of proof is on the defendant, who will be bound to show that the plaintiff actually committed the first assault, and also that which was therefore done on his own part, was in the necessary defence of his person. 2 Grreenl. Ev. sec. 95, and cases there cited.

In regard to the replication de injurid, &c., the general rule is, that as it puts in issue only the matter alleged in the plea,, nothing can be in evidence under it, which is beyond and out of the plea: 2 Grreenl. Ev. sec. 96.

All the other grounds of complaint are to the charge of the court, in instructing the jury that, under the pleadings, the cause of action, as set out in the plaintiff’s declaration, is confessed by the defendant, and the defence taken under the plea of justification. This was certainly correct, as all the authorities show that the burden of proof, under the plea of son assault demesne, lay on the defendant; and the jury were further correctly instructed, that if the defendant failed under the evidence in the case, then nothing was left but to assess the damages, having regard to the circumstances of the case, as given in evidence. Nor is there error in affirming plaintiff’s points: 1 Selw. N. P. 35, n. A. We think the points were all correctly answered.

It is true that violence may be justified, where the safety of the person is actually endangered: 2 Salk. 642; Buller N. P. 18. If the battery was excessive, beyond what is necessary for self-defence, all the American authorities agree that this excess may be given in evidence, under the replication de injurid; and to this we subscribe. And this without either a special replication or a new assignment: 2 Greenl. Ev. sec. 95, n. 5, where the authorities are collected.

With us, the only question is as to the degree and proportion of the beating, to the assault. We think the cause was properly presented to the jury, under the issue raised by the defendant.

Judgment affirmed.  