
    GENERAL COURT,
    MAY TERM, 1804.
    Gibson vs. Fleming.
    Where in an action of assault and battery, the defendant pleads san assault demesne, the plaintiff can give no evidence of an assault except on the day laid iu the declaration, and this, whether the defendant gives evidence in support of ius plea or not.
    Apfeai from the Frederick county court. It was an action of assault and battery, brought by the present appellant against the appellee. Son assault demesne was pleaded, to which the general issue, was replied. The bill of exceptions taken at the trial below states, that the defendant opened the case, but offered no testimony to support his plea. That the plaintiff proved'an assault within one year before the issuing of the writ, but did not proye an assault on the precise day laid in the declaration; and the plaintiff prayed the direction of the court to the jury, that as the defendant had not offered to prove any assault committed on him by the plaintiff, at any time before the action brought, that the plaintiff was not confined to give evidence of an assault on the day laid in the declaration. But that, if the jury believed from the evidence that an assault was committed on the plaintiff by the defendant, at any time within one year before the issuing of the writ, that they must find for the plaintiff. But the county court refused to give the direction; but were of opinion, and so directed the jury, that no evidence could be given by the plaintiff of any assault committed upon him by the defendant, upon any day except that mentioned in the declaration. The plaintiff excepted, and the verdict and judgment being against him, he appealed to this court.
    
      Shaaff, for the Appellee.
    The point in this case was decided in this court in the case of Miller vs. M‘ICee, 3 Harr. & M‘IIen. 5S3.
    
      JVelson, contra.
    In Miller vs. M‘T€ec, evidence was offered by the defendant to support his plea of son assault demesne, but in the present case no evidence whatever was offered of any assault, by the plaintiff on the defendant.
   The Gesteras Court affirmed the judgment of the County Court,  