
    George H. Muller vs. Orrin J. Powers.
    Worcester.
    October 20, 1899.
    November 29, 1899.
    Present: Holmes, C. J., Knowlton, Lathrop, Barker, & Loeing-, JJ.
    
      Instructions — Saving of Exception.
    
    One issue in an action at law for an assault and battery was whether the defendant had used more than reasonable force in endeavoring to expel the plaintiff from the defendant’s 'premises, the judge having instructed the jury that the defendant had the right to use reasonable force. As bearing upon the question the judge gave an instruction to which the defendant’s counsel at the close of the charge excepted. He then further instructed the jury upon this point, and the defendant’s counsel said nothing further. The defendant, after verdict for the plaintiff, excepted; and the exceptions were allowed if the defendant was entitled to an exception to the part of the charge first mentioned. Held, that no exception was saved.
    Tort, for an assault and battery. At the trial in the Superior Court, before G-askill, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.
    
      F. P. Goulding & F. W. Blackmer, (E. H. Vaughan with them,) for the defendant.
    
      W. S. B. Hopkins & F. B. Smith, ( W. S. B. Hopkins, Jr. with them,) for the plaintiff.
   Lathrop, J.

One issue in this case was whether the defendant had used more than reasonable force in endeavoring to expel the plaintiff from the defendant’s premises. The judge had instructed the jury that the defendant had the right to use reasonable force. As bearing upon the question of reasonable force the judge gave an instruction to which the defendant’s counsel at the close of the charge excepted. The court then further instructed the jury upon this point; and the defendant’s counsel said nothing further. The defendant, after verdict for the plaintiff, excepted; and the exceptions were allowed if the defendant was entitled to an exception to the part of the charge first mentioned.

It seems to us clear that no exception was saved. The judge by the additional instructions cured what he supposed was the ■difficulty in the mind of the defendant’s counsel. In the language of Mr. Justice Knowlton in McCart v. Squire, 150 Mass. 484, “If the defendants’ counsel still . . . intended to save an exception, it was his duty, in fairness to the plaintiff, as well as to the judge, to make known his dissent from the views last expressed by the presiding justice, and his wish to save an exception.' The plaintiff’s counsel, to avoid an exception, might then have suggested some qualification of the charge, or the judge might of his own motion have given further instructions which would’ have prevented the possibility of misunderstanding.”

The other exception was waived,

Exceptions overruled.  