
    COURT OF APPEALS, JUNE TERM, 1822,
    Barnes vs. Gray.
    
    
      ¡m luÉm^t ims su“ pMteT'im íhr7hé tiTjnry^'on tire
    it on a joint asthepiniinffsoTOrs, bisections, ail the ihcts occutijnfr at the time ol the assauit ami battery 0115• '
    Appeal from Pitarles county court. The appellee, (the plaintiff’in the court below,) brought an action of assault. r;nd battery against the appellant. The defendant pleaded :-ot guilty, and soji assaiilt demesne. To which pleas issues were joined, on the general replication to the last plea. At the trial the plaintiff examined a witness, who gave ill evidence, that the plaintiff vvas intoxicated when the as- , . ’ sault occurred, and that he came into the. house, where the ^ defendant was, and made his way through the crowd of that were there, parting them, as he went along, until he came to the defendant, whom he took hold; of by the collar, or breast. That the defendant twice observed to the plaintiff, that he was an old man, and unable, to fight, and requested him to let him go,, the plaintiff'stilt held him, without speaking, when the defendant’s son, Thomas Barnes, seizing the plaintiff’s arm, and the plaintiff turning his head, and asking who had hold of him, the. defendant struck him, and knocked him down, and struck him two or three times after. That Jarp.es Barnes, another of the defendant’s sons, then stamped the plaintiff" several times with his feet. It also appeared to the court in evidence, that there was a separate action of assault and battery, next following the present, on the docket, against, the said James Barnes, and Thomas Barnes. The defendant then objected to any evidence being given in this action relative to the acts of Thomas Barnes and James Barnes, there being separate actions brought against them by the plaintiff. This objection was overruled by the court, \_Key and Plater, A. J.j and the evidence went to the jury.
    The defendant excepted; and the verdict and judgment being against him, lie appealed to this court.
    
      Stonestreet, for the appellant,
    relied on the following grounds for a reversal of the judgment—1. Because the. plea of son assault a.emesne, was supported by the evidence of the plaintiff’s witness. 2. Because the plaintiff-having declared against Godshall Barnes alone, could not give testimony of the acts of third persons to aggravate the damages. If he wished to avail himself of such testimony, he might have entitled himself to it by declaring th$t be wps assaulted and beaten by Qodskdl Barnes, cum aliis,, to wit, Thomas and James Barnes; but having elected to sever the'actions, he must sever the proof. The aliegata and probata must correspond. That there was no proof of any previous concert or combination between tbe JBa.rnes',s. '
    
    Braumer, for the appellee, contended,
    1. Whether or not the pica of son assault demesne was supported, was a matter of fact for the consideration of the jury upon the whole oí the evidence. He cited 1 Bac. Ab. tit. Assault and Battery, 246, 247; and Esp. Big. 315,
    2. Where there has been a joint assault and battery, and the plaintiff severs his actions, all the facts occurring at tlie time may go, to the jury at the trial of either action, Esp. Dig. 317, 319, 321. .
   JUDGMENT AEEIHMEp.  