
    Frank S. Silva vs. Sarah S. Silva.
    APRIL 16, 1906.
    Present: Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.
    
      Trespass. Pleading. Evidence.
    
    Where in an action of trespass for an assault, to which the general issue had been pleaded, evidence was introduced without objection which established a justification, while such evidence was inadmissible without a special plea, it is too late to urge such objection on petition for new trial.
    Trespass. Heard on petition of plaintiff for new trial, and denied.
   Per Curiam.

This is an action of trespass for an assault, in which the defendant pleaded the general issue only. At the trial evidence was introduced, without objection, which established a justification. After verdict for the defendant the plaintiff asks for a new trial on the ground, in effect, that this evidence was inadmissible without a special plea. The principle urged by the plaintiff is undoubtedly well established, but no exception was taken to the admission of the evidence or to the charge of the court in regard to the effect of it, and it is too late to urge such objection for the first timein an appellate court.

Page and Page and Cushing, for plaintiff.

John C. Quinn, for defendant.

We think that upon the whole evidence the verdict of the jury does substantial justice between the parties, and the petition for a new trial is denied and the case is remitted to the Superior Court for judgment.  