
    *Heshbon Parish v. Loamma Rigdon.
    Under the general replication, de injuria, etc, in an action of trespass, where the defendant justifies under any authority from the plaintiff, or arising from the law, the plaintiff can not give in evidence any excess of authority.
    If he would rely upon such excess, he must reply it specially.
    This is a Writ of Error to the Supreme Court of Guernsey county.
    An action of trespass for assault and battery was brought by Rig--don against Parish, who plead the general issue, and also a special plea in bar, “ that he, the said defendant, at the time when, etc., was a schoolmaster, teaching a school at the county of Guernsey, and the said plaintiff was then and there a scholar in, and attending, said .school, and then and there behaved and conducted in an improper and •disorderly manner, and refused to obey the rules prescribed for the government of the school; whereupon, he, the said defendant, then and there, moderately corrected him the said plaintiff, for his said misbehavior, which,” etc.
    To this special plea the general replication, de injuria, was replied. The general issue was afterwards withdrawn; and, upon the trial, a bill of exceptions was taken, from which it appears—
    “ That, after the defendant had introduced proof, tending to sustain fully his justification, the plaintiff offered testimony to prove an excessive beating. To this testimony the defendant’s counsel objected, claiming that the testimony is inadmissible under the state of pleadings in this ease ; that if the plaintiff relied upon an excessive beating, he was bound to reply it specially, and can not prove such excess under the general replication, de injuria. The court being equally ■divided, the objection was overruled and the testimony went to the jury.”
    The admission of this evidence is assigned for error.
    
      *Isaac Parish, for plaintiff in error.
    In an action of trespass, when a justification sets up either matters of right or interest, or authority from the plaintiff, or by law, the plaintiff must reply specially, and can not, under the general replication, de injuria, give evidence of a new trespass, or excess. Opinion of Savage, Justice, in Griswold v. Sedgwick, 1 Wend. 130 ; 4 Wend. 577 ; Colburn v. Hopkins, 4 Johns. 157 ; 5 Johns. 114 ; 12 Johns. 491 ; 1 Chitty Pl. 581, 582, 584; 2 Chitty Pl. 642, note t, a ; Gale v. Dalrymple, Ryan and Moody, 118, in 21 Eng. Com. Law, 394 ; 3 Harrison’s Index, 2082, referring to 1 C. and P. 381, in 11 Eng. Com. Law.
    He also cited the following authorities . 4 Johns. 111 ; 5 Cowen, 181 ; 11 Eng. Com. Law, 433 ; 7 Eng. Com. Law, 74 ; 30 Eng. Com. Law, 388.
    The reporter was furnished with no argument for defendant in error.
   Wood, Judge.

The question raised on this record, is, whether, in this action of trespass, under the replication, de injuria sua propria absque tali causa, the plaintiff might rely upon, and give in evidence, an excessive beating.

It is said that the defendant, taking the affirmative, was bound to prove the truth of his plea, by showing that the correction was moderate, and that, to rebut this proof, evidence might be introduced to show that the beating was excessive. It appears to us of no very great importance which way the rule is established; but it should be settled and made known.

In Massachusetts it is held that such general replication is sufficient to let in proof of excess, and that it puts in issue every material allegation' of the plea, requiring the defendant to sustain, by proof, that he was a schoolmaster — that the plaintiff was his scholar — that he misbehaved, and that the correction was moderate. Bat the English and New York authorities are the other way. They show that when-the justification *sets up either matter of right, interest, or [193 authority from the plaintiff, or by law, the plaintiff must reply specially. He can not, under the general traverse, de injuria, give evidence of a new trespass, or excess of authority.

We feel disposed to go with this current of decisions. By thus settling the law the defendant will be apprised of the precise ground .on which the plaintiff relies ; and a single fací only will be submitted -to the jury. The plaintiff, by replying specially, may select the fact-■upon which he will take issue ; but he can present only one matter in his replication, and thus narrow down the ground of inquiry.

The evidence excepted to in this case was, therefore, improperly admitted.

Judgment reversed, and cause remanded.  