
    Flagg vers. Hobart.
    ACTION for Words, and Special Damages alledged. Defendant justified speaking the first Words, and plead not guilty to the Rest.
    Where, in an Action for Words, Justification is pleaded to Part, and to the Residue, not guilty, the two issues will be tried separately; and, on the first, the Defendant is entitled to open.
    Damages will be assessed separately upon each issue.
    
      Dana, for the Plaintiff,
    
    going on to open the Caufe —
    
      Quincy, for the Defendant,
    
    moved that he (Quincy) might open it.
    
      Bewail, also for the Plaintiff,
    
    faid, if the Defendant infifts on trying the Ifliies feparately, they have a Right to open; but. if they will try them together, we muft open; for Part of our Declaration is denied; we ought, therefore, to proceed and prove what we have firft alledged. ()
    1772.
    
      Trowbridge, Justice,
    
    asked, if the Action had been Trespass, Assault and Battery, and Plea, as to the Force and Arms, not guilty; and Justification as to the Residue, who shall open there ? — the Law is, if the Justification be found, Nothing more is to be done, as to the Force and Arms.
    
      Sewall answered, he could not think that a parallel Case—he thought Clausum fregit, and Justification as to Part, and, as to the Residue, not guilty, rather in Point; there, he said, the Plaintiff might open.
    
      
      (1) Acc. Davis v. Mason, 4 Pick. 156 ; Ayer v. Austin, 6 Pick. 225. But by the present rules of practice in this Hate, the plaintiff has the right to open and close in all cases, even when the only issue is on the defendant’s declaration in set-off. 8 Cush. 603, note. 2 Gray, 260.
    
   But

the Court

directed the issues to be tried separately. ()

It became a Question, at the Trial, on the first issue, whether Damages should be affected separately on that issue, or whether they should be passed over till the other issue was also tried, and then affected in toto: And per Curiam — The Damages must be afleffed on each Iffue ; for, perhaps, the other issue will be found against the Plaintiff; then Damages over; or, perhaps, if Damages are assessed jointly, there may be a Motion in Arreft of Judgment, that the Words in the last issue are not Actionable, and then it may be said that Judgment must be stayed for the Whole; and other Reasons may be given also. () 
      
      (2) S. P. Morse v. Jevuett, Mass. S. J. C., June Term, 1781, where, in assault and battery, “ the defendants justified moderate correction,” “ there were several issues joined,” and “ as to the moderate correction, the defendant opened and closed.” 5 Dane Ab. 564.
     
      
      (3) This aftion was for words fpoken againft the plaintiff in his trade and bufinefs of a millwright, — accufing him of ruining defendant’s mills, and afferting that “ it would have been better to have given any “ Wages to a Workman than to have had my Mills fo Ipoiled by fuch a “ Blunderbufs.” Thefe words and others were juftified, as fpoken “with Defign only to prevent the faid Eleazer from hurting others by his bad Work.” The plea of not guilty as to the refidue, applied to the charge of calling the plaintiff “ a Logerhead,” “ a Deceiver,” and a “ fraftious Fellow,” and of afferting that “ there was fo much Liquor “ ftirring that Flagg hardly knew what he was about.” The plaintiff joined iffue on the fecond plea, and replied, de injuria, &¡c., to the firft ; on which replication, iffue was alfo joined. In the Inferiour Court, the jury found generally for the plaintiff, and affeffed damages at ¿£30. On the appeal, the verdift conformed to the iffues, viz.: “the Jury find “upon the firft Iffue that the Appellant fpoke the Words in his Plea of “ Juftification mentioned, of his own Wrong, without fuch Caufe as he “has pleaded, and affefs Damages for the Appellee Thirty Pounds; and “ upon the fecond Iffue they find the Appellant guilty, and affefs Dam“ages for the Appellee upon that Iffue, Five Pounds.”
     