Brown v. Bennett

5 Cow. 181 | N.Y. Sup. Ct. | 1825

Curia, per Sutherland, J.

The evidence was properly rejected. The general replication, de injuria, &c. denies that the plaintiff made the first assault, &c. as alleged in the plea of son assault. Where the plea, therefore, is true in fact, and the plaintiff relies upon special circumstances or facts to justify the assault, which he admits he first made, he must set them out specially in his replication, and not reply generally de injuria. (Chit. Plead. 563,4.) When, in fact, therefore, the plaintiff made the first assault, or whenever, in answer to the defendant’s plea of son assault, he relies upon new matter, he should not reply generally de injuria, but shoidd state such new matte.- specially. (Sayre v. Earl of Rochford, 2 W. Bl. 1165. Garth. 280. 2 Chit. Pl. 643, note,(t) (u). 5 Com. Dig. Pleader, (F. 18.) He cannot give it in evidence under the general replication of de injuria. In Collier v. Moulton, (7 John. 111,) Ch. J. Thompson says, if the defendant had pleaded son assault, instead of giving notice of it under the general issue, and the plaintiff intended to avail himself of the moliter manus, Sec. he must have replied specially; for he could not give it in evidence under the general replication, de injuria sua propria. 20 Vin. 440. King et ux. v. Peppard, Comb. 227.

The evidence being properly rejected under the general replication, and the defendant having given no evidence under his third plea, to which the special matter offered in evidence was replied specially, it could not be admitted under that replication. The nonsuit, therefore, was properly ordered; and the motion to set it aside, and for a now trial, must be denied.

Motion denied.