19 N.H. 562 | Superior Court of New Hampshire | 1849
The effect of the charge to the jury was that if the defendant did commit an assault and battery upon the person of the plaintiff, he might, nevertheless, prove, in his defence under the general issue, that the plaintiff did in fact make the first assault, and was endeavoring to wrest from him the axe; and that the assault and beating complained of in the writ were no greater or other than were necessary on the part of the defendant to resist and to defeat the unlawful attempts of the plaintiff.
But the doctrine of the books is that the general issue simply denies the fact of the trespass alleged, and that any justification must be set up by way of a special plea. 1 Saund. Pl. & Ev. 95; 1 Selwyn N. P. 25.
The defence was therefore inappropriate under the plea. The instructions to the jury were erroneous, and the verdict must be set aside, and a
New trial granted.