
    Jacob Sampson versus Luther Henry et al.
    
    A general traverse ought to conclude to the country 5 and the circumstance that new matter is introduced by way of inducement to the traverse, makes no difference.
    In trespass for assault and battery committed upon the plaintiff in his dwelling house, the defendant cannot justify on the ground that he was the owner of the house and that the possession was unlawfully withheld from him, and that he used no more force than was necessary to enable him to enter and to overcome the plaintiff's resistance.
    In such action, the defendant pleads that the assault and battery were committed in defence of the possession of a dwellinghouse of which the defendant was seised and possessed, and the plaintiff replies de injuriá, &c. Held, that the replication was sufficient.
    In such action the defendant pleads that the first assault was committed by the plaintiff, and the plaintiff replies that the defendant broke open the dwellinghouse of the plaintiff and beat him, and that he in defending himself against the defendant, gently laid his hands on the defendant, which was the same assault in the plea mentioned, concluding with a verification. Held, that the replication was bad, inasmuch as it does not aver distinctly, whether the plaintiff or the defendant made the first assault; and if it means the former, it ought to have confessed and avoided in direct and unambiguous language; if the latter, it ought to have contained a general traverse, concluding to the country.
    In such action it appeared, that the plaintiff lived in the same house with his son and son’s wife, that the defendant broke open the house and beat the plaintiff and his son, that the son's wife was in travail, and that this fact was made known to the defendant before he entered the house. Held, that the situation of the son's wife was properly admitted in evidence, to show the malice of the defendant and the aggravated suffering of the plaintiff, although it was not set forth in the plain tiff's declaration.
    In such action the circumstance that the defendant entered the house for the purpose of making an attachment, is not admissible in evidence in mitigation of dam ages.
    Trespass for an assault and battery. The declaration alleges, that at Pelham, on April 3, 1829, Luther Henry and James Henry, the defendants, assaulted the plaintiff and with a deadly weapon struck him many heavy and dangerous blows, and terrified and affrighted him, by means of all which he has been put to great expense, has suffered great pain in body and mind, and his life been put in great hazard.
    Luther Henry pleads,
    1. The general issue which is joined,
    2. That Luther, at the time when, &c was lawfully seised m fee of a messuage and a dwellinghouse thereon, situate in Pelham, and then of right ought to have been in the quiet and peaceable possession thereof, and that the plaintiff was unlawfully in possession of the dwellinghouse and unlawfully withheld possession thereof from Luther, and though then and there requested by Luther to deliver him possession and permit him to enter, refused so to do, and forcibly detained the dwellinghouse from Luther, and with pitchforks and axes assaulted Luther and attempted to prevent him from entering into the dwelling-house ; whereupon Luther, in order to enter into the dwelling-house, did a little beat the plaintiff, exerting no more force than was necessary to enable Luther to enter into the dwelling-house, against the forcible and unlawful resistance of the plaintiff, as Luther lawfully might do for the cause aforesaid, which are the supposed trespasses, &c. without this, that Luther was guilty of the supposed trespasses or either of them, elsewhere than in the dwellinghouse, et hoc paratus, tyc.
    
    3. The third plea was like the second, except that it omitted the allegation of a request upon the plaintiff to deliver Luther possession of the dwellinghouse and permit him to enter.
    4. That the assault and battery were committed in defence of the possession of a dwellinghouse of which Luther was seised and possessed, and which the plaintiff attempted to enter with force and without right.
    5. Son assault demesne, in common form.
    To the second plea of Luther the plaintiff replies, that at the time when &c. and for the space of one year next previous thereto, he and his son Lyscom Sampson, and his son’s family, consisting of a wife and children, were and had been peaceably and quietly living in the dwellinghouse as his and their home, and that Luther, having a claim for money due from Lyscom, on the 2d of April 1829, sued out a writ of attachment thereon against Lyscom, and committed the same to a constable to be served, and came to the dwellinghouse with the constable for the purpose of arresting the body or attaching the property of Lyscom, and the body and property of Lyscom being both within the dwellinghouse and the dwellinghouse being barred against the constable, Luther, aided by James, with clubs and rails, and for the avowed purpose of letting the constable into the dwellinghouse to make service of the writ, against the consent of the plaintiff and Lyscom, broke open the dwellinghouse, and Luther and James, with the constable, were forcing their way into it, and did force their way into it and therein and thereupon Luther and James, with clubs assaulted, beat and pushed down Lyscom and terrified his wife, who was then in travail, and beat and ill-treated the plaintiff, and that in defence of the house, and of Lyscom and of himself, against the assaults and attacks so made by Luther and James for the purpose aforesaid, the plaintiff laid his hands upon Luther to prevent his entering the house with the constable and James, and to protect himself and son from the violence with which they were threatened and assaulted by Luther and James, as he lawfully might; which laying of the hands upon Luther in the manner, &c. was the same supposed assault in the plea mentioned to have been committed by the plaintiff; and thereupon Luther, aided and abetted' by James, of his own wrong committed the trespasses &c. and without any such cause as in the plea is alleged ; et hoc paraius Sfc.
    
    The like replication was made to the third plea.
    To the fourth, the general replication, de injuria, fyc., in common form.
    To the fifth plea the plaintiff replies, that at the time when &c. and for the space of one year next previous thereto, the plaintiff and his son Lyscom were and had been possessed of and living in a dwellinghouse in Pelham, as their home, and being so in possession of the dwellinghouse, and being therein securely living, Luther, with James, at the time when &c. with sticks and rails broke and entered the house, against the will of the plaintiff and Lyscom, and then and there beat Lyscom, and assaulted and beat the plaintiff, as he has in his declaration complained, and the plaintiff, in attempting to prevent Luther and James from breaking and entering the house and assaulting and beating his son, and in defending himself, gently laid his hands upon Luther, as he lawfully might, and which said laying of his hands upon Luther in manner aforesaid, and for the causes aforesaid, doing no unnecessary injury to Luther, was the same assault in the plea alleged to have been committed by the plaintiff upon Luther, and thereupon Luther, aided by James, committed the several trespasses in the introductory part of the plea mentioned, in manner and form as the plaintiff in his dec laration has complained against Luther, and this he is ready to verify ; and he is further ready to verify, that he did not assault Luther as in the plea alleged, elsewhere than in the dwellinghouse aforesaid.
    To these several replications the defendant Luther demurs, and assigns the following causes of demurrer : —
    To the replications to the second and third pleas,
    That they put in issue the seisin and right of possession alleged by Luther, in the pleas, by means of the general traverse contained in the replications ; —
    And that they offer to put in issue the intent and purpose for which Luther entered the dwellinghouse-
    To the replication to the fourth plea, that it offers to put in issue the seisin and possession of Luther alleged in the plea.
    To the replications to the second, third and fifth pleas, —
    That they introduce new matter to avoid the pleas, and do not confess but deny all matters alleged in the pleas ; —
    And that they conclude with a verification, when they ought to conclude to the country.
    To the replications to second, third, fourth and fifth pleas, that they are in other respects uncertain, informal and insufficient.
    The pleadings in relation to the other defendant depended upon the same principles as those in relation to Luther, and it is therefore unnecessary to set them forth.
    The cause was tried upon the general issue, before Putnam J.
    The plaintiff proved that Luther Henry and his son James, together with one Brown, committed the assault and battery under the following circumstances.
    Lyscom Sampson, the son of the plaintiff, held a house belonging to Luther, by a written lease for one year from April 1, 1828, for $40, and on April 1, 1829, he gave his note for that sum, which became due on April 4, 1829. Luther sued out a writ upon this note, and on April 3, 1829, employed Z. Cook, a constable, to serve it by attaching property in the house above mentioned. The plaintiff was more than ninety years old. He had been one of Lyscom’s family for ten years. Lyscom remained in possession of the house, and shut and fastened the door against Luther and the officer ; but there was a pane of glass wanting in the window, through which opening the officer put his hand and touched a wheel which was in the house, and Luther told him that that gave him a right to go in. Request was made of Lyscom to permit them to go in which was refused. Lyscom’s wife was then in travail, of which fact notice was given to Luther. Lyscom told Luther that he would defend by force against the entry of Luther and the officer, and he and the plaintiff showed that they were armed with a pitchfork and a flail-staff. Whereupon Luther, James and Brown armed themselves, one with the shaft of a wagon, the two others with hoop-poles, and having broken open the door with a rail, they all entered, with the officer Lyscom and the plaintiff resisted, and Lyscom was knocked down, and the plaintiff received two blows upon the head with one of those weapons, from one of the party ; and this was the assault and battery tried upon the general issue.
    The plaintiff called Lyscom as a witness ; who testified, that at the time of the assault, his wife was actually in travail and very ill ; and that he informed Luther of the situation and distress of his wife, before the door was broken in. To this evidence the defendants objected, but it was admitted.
    The counsel for the defendants moved the court to charge the jury, that Luther had a right, after request and refusal of admission, to break and enter the house by force and oust Lyscom, as the lease was at an end. And (for the purposes of the trial) the judge instructed the jury, that Luther had such right; and that if -he intended to enter for that cause, it should be taken into consideration in mitigation of damages. The counsel then further contended, that it ought to go in mitigation, although Luther did not intend to enter for-that cause, but to make the attachment on his writ. But the judge instructed the jury, that if he had no intent to enter and regain the possession of the house, but entered merely for the purpose of making the attachment, then the right to enter as landlord should not be considered in mitigation.
    The j ury found a verdict for the plaintiff.
    If the last instruction was wrong, or if the above testimony of Lyscom ought to have been rejected, a new trial was to be granted.
    
      
      Sept. 28th
    
      Billings, and J. W. Clark, for the defendants.
    The replication to the second plea introduces new matter which goes to avoid the allegations in the plea, and the general traverse puts in issue all the facts alleged in the plea ; but where new matter is introduced in the replication, the traverse should be special. 1 Chit. PI. 578 ; Oystead v. Shed, 13 Mass. R. 520 ; Bedell v. Lull, Yelv. (Metcalf’s edit.) 151 ; 1 Wms’s Saund. 209, note 8 ; 2 Wms’s Saund. 5, note 3. The plaintiff puts in issue the defendant’s title, which cannot properly be done by a replication of de injuria fyc. Jones v. Kitchin, 1 Bos. & Pul. 76 ; Crogate’s case, 8 Co. 67. So he improperly puts in issue the purpose of the defendant’s entry. Crowther v. Ramsbottom, 7 T. R. 654 ; Butler and Baker’s case, 3 Co. 26 ; Grenville v. College of Physicians, 12 Mod. 386; S. C. 1 Ld. Raym. 455 ; Lit. § 695. But if the whole of the new matter is irrelevant, as we suppose it to be, and may be rejected as surplusage, then nothing remains but the genera traverse, and it ought to have concluded to the country. 1 Chit. Pl. 585.
    As to the points reserved at the trial, they insisted that the intention with which the defendants entered was immaterial.
    If they had a right to enter, that was admissible in evidence to mitigate the damages. 3 Dane’s Abr. 351.
    The plaintiff’s son has already recovered aggravated damages in consequence of the situation of his wife, and the evidence of her situation is therefore inadmissible in this action ; and besides, the declaration does not set forth her Situation in aggravation of damages. 3 Stark. Ev. 1451, 1452, 1454.
    
      I. C. Bates, and Wells, for the plaintiff.
    The replication to the second plea contains an inducement which is in substance a sufficient answer to the allegations in the plea, but it does not confess and avoid, nor directly deny them, and it concludes as it ought to do, with a special traverse and verification, and not, as the defendants contend, with a general traverse. Stephen on Pl. 188 to 213, 192, note x ; Com. Dig Pleader G, 1 ; 1 Chit. Pl. 596 ; 1 Wms’s Saund. 21. In support of the conclusion with a verification, they cited Stephen, 204, 205 ; 1 Wms’s Saund. 103 a, 103 b.
    
    But whether this replication is sufficient or not, is immaterial, for the plea itself cannot be sustained. The owner of a dwellinghouse cannot justify an entry upon a tenant at will or by sufferance, and repossessing himself by a strong hand and without notice to quit. 3 Bl. Com. 4, 5, 174 , Co. Lit. 257; Hyatt v. Wood, 3 Johns. R. 239 ; Gregory v. Hill, 8 T. R. 299 ; Ellis v. Paige, 1 Pick. 43 ; St. 1825, c. 89.
    
      Sept. 30th.
    
    The fourth plea contains matter not of justification, but of excuse merely, and in such case the replication de injuria fyc. is proper. Crogate’s case, 8 Co. 67 ; Taylor v. Markham, Yelv. 157 ; S. C. Cro. Jac. 224 ; 2 Wms’s Saund. 295, note.
    In support of the replication to the fifth plea, they cited Gregory v. Hill, 8 T. R. 299.
    To show that the evidence relative to the situation of the plaintiff’s daughter-in-law was rightly admitted, they cited 3 Stark. Ev. 1450 ; Merest v. Harvey, 5 Taunt. 442 ; Sears v. Lyons, 2 Stark. Rep. 318 ; Woert v. Jenkins, 14 Johns. R. 352 ; Davenport v. Russell, 5 Day, 145 ; Reed v. Davis, 4 Pick. 216.
    
      Billings,- in reply, contended that the defendant Luther had a right at common law, to enter into his own house unlawfully withheld from him by the plaintiff, who was a trespasser or disseisor, and that he was justified in using the force necessary to accomplish the object; 4 Kent’s Com. 116 ; and he remarked that the St. 1825, c. 89, § 4, saves to landlords all previously existing rights and remedies.
   Wilde J.

delivered the opinion of the Court. Several questions arise on the pleadings, and the defendants except also to the decisions of the judge and to his directions to the jury, as they appear in the report of the trial.

The case is trespass, in which the plaintiff complains of an aggravated assault and battery committed on his person by the two defendants.

In addition to the general issue, the defendants pleaded severally divers matters in justification, to which the plaintiff replied ; and to the several replications the defendants demur.

In the first and second pleas in justification, of Luther Henry, he avers that he was, at the time mentioned in the plaintiff’s declaration, lawfully seised of a messuage and dwellinghouse situated in Pelharii, of which he ought then to have been in the quiet and peaceable possession, but which at the time when, &c. was unlawfully withheld from him by the plaintiff, he then being, and before having been, in the unlawful possession of the same; and that for the purpose of entering his said dwellinghouse, he,

Luther, did commit the assault and battery complained of, as lawfully he might, using no more force than was necessary to overcome the unlawful resistance of the plaintiff. '

The plaintiff replies, that he and his son and family had been, for the space of a year before the time when, &c. and at that time was, in the quiet possession of the dwellinghouse as his and their home, when Luther made a violent attack on the plaintiff, and beat and bruised him in manner set forth in the writ, and then and there forcibly broke open the dwelling-house, to the great terror of the family, and other wrongs then and there did.

The replication then concludes with a general traverse of the defendant’s plea, and with a verification.

This conclusion of the replication, with a verification, does not appear to be in conformity with the strict rules of pleading. The rule is, that where the whole substance of the last pleading is denied, the conclusion must be to the country ; otherwise the pleadings may be interminable, without coming to a formal issue. And it makes no difference that new matter is introduced by way of inducement to the general traverse, although if the traverse had been special it might be otherwise; for it is said, that where one of several facts alleged in a plea is selected and denied in the replication, the conclusion may be to the country, or with a verification. But this is by no means universally true. Sergeant Williams says, “ it may be laid down as a safe rule, that where a defendant cannot take any new or other issue in his rejoinder than the matter he had pleaded before without a departure from his plea; or where the issue in the rejoinder would be the same in substance as on the plea, the plaintiff ought to conclude to the country.” We think this rule of pleading is correct, and it is supported by the modern authorities. 1 Saund. 103, in notis; Robinson v. Bayley, 1 Burr. 319 ; Boyce v. Whitaker, 1 Doug. 94. Courts do not and ought not to encourage prolixity of pleading; and therefore when one or more facts, which are material and decisive of the merits of the case, are affirmed by one party and denied by the other, the conclusion should be to the country.

We do not, however, consider this objection and the other objections to the replications as material to the decision of the case, because we are of opinion that the pleas in bar are insufficient. These pleas attempt to justify the forcible entry into the plaintiff’s dwellinghouse, on the ground that the defendant was the owner of the property, and that the plaintiff unlawfully withheld the possession thereof from him. The pleas admit that the plaintiff was in possession, and do not deny that he entered peaceably; yet the defendant asserts the right, not only of breaking open the house and entering therein with force and violence, but also of committing an assault and battery on the tenant with a dangerous weapon, for' the purpose of accomplishing his object. The use of the dangerous weapon and the degree of violence charged in the writ, are not denied by the pleas ; it is only averred that no more force was used than was necessary to enable the defendant to enter, and to overcome the plaintiff’s resistance.

Such is the claim of right set up by these pleas ; a claim manifestly opposed to the fundamental principles of civil government. The law does not allow any one to break the peace and forcibly to redress his private wrongs. He may make use of force to defend his lawful possession, but being dispossessed, he has no right to recover possession by force, and by a breach of the peace. This is no defence in an action for the personal injury. This principle applies to the possession and dispossession of personal property, and ought especially to be rigidly observed in relation to a man’s dwellinghouse, in which he is peculiarly prot&cXyti by the law. 3 Bl. Com. 4, 5 ; Gregory v. Hill, 8 T. R. 299 ; Hyatt v. Wood, 3 Johns. R. 239.

In the third special plea of Luther Henry, he avers that the assault and battery were committed in defence of the possession of his dwellinghouse, and the plaintiff replies de injuria &c. in common form. We think no good exception can be taken to this replication. It is said that the general traverse puts in issue the defendant’s title, and his seisin of the dwel.inghouse, but we do not consider the title as material; the replication only denies the defendant’s possession, and that the assault and battery were committed in defence of his possession. The general traverse only-puts in issue the material facts alleged in the plea.

The replication, however, to Luther’s last plea cannot, we think, be sustained. It is bad, we think, for uncertainty, for it is hard to determine whether‘the replication was intended as a denial of the plea, or as a confession and avoidance of it.

The plea avers that the first assault was committed by the plaintiff, and the replication avers that the defendants broke open the dwellinghouse of the plaintiff, and beat, bruised and ill-treated him, and “that he in defending himself against them, gently laid his hands upon the said Luther, which was the same assault in said last plea mentioned,” &c. Now it is not distinctly averred in the replication, whether the plaintiff or the defendants made the first assault. The inference seems to be, that as the plaintiff avers that he acted in his own defence, the first assault was made by the defendants. If it was so intended, it should have concluded with the general traverse ; if oth erwise, the intention is not expressed with sufficient certainty.

If the plaintiff did not intend to deny that he made the first assault, he should have confessed and avoided in direct and unambiguous language ; and it is very clear that nothing contained in this replication amounts to any such confession.

It is not necessary to notice the pleadings as to the other defendant, as they depend on the same principles and rules of pleading as those we have already considered.

As to the exceptions to the proceedings at the trial, we think they cannot be sustained. Evidence showing the situation of the son’s wife and family at the time of the assault and battery, was properly admitted to show the malice of the defendants and the aggravated suffering of the plaintiff. Thus it may be proved that an assault was made at a public place and m presence of many witnesses, although it may not be so alleged to have been done in the declaration. This is considered as matter of aggravation, and not as ground for the recovery of special damages.

So the circumstance that the defendants entered for the purpose of making an attachment, ought not to go in mitigation damages. It rather ought to aggravate the damages, for the defendants had no legal right to break open a dwellinghouse for such a purpose, and it was an abuse of legal process.

On motion, leave to amend the replications to the defendant's last pleas.  