On another day judgment was given for the plaintiff. Antea, p. 20, 128, postea, p. 273.
Hale v. Gerrard, 1 N.C. 221, 1 Mart. 221 (1793)
1793
·
United States Circuit Court for the District of North Carolina
1 N.C. 221, 1 Mart. 221
*Hale vs. Gerrard, et alios.
Mich. 3 Car.
ACTION of battery, for assaulting, beating and wounding the plaintiff in London. They the defendants, shew that they were possessed of a house in Surry, for a term of years, to come, that the plaintiff entered and put them out of possession; that they moliter put their hands on him to make him depart; that he would not, but assaulted them, and that they, in defence of their persons and possessions, assaulted, heated and wounded him, which is the same trespass; absque hoc, that they are guilty in London. The plaintiff replied de injuria sua propria, absque tali causa. Whereupon the defendants demurred.
1. He ought to join issue with the defendants or maintain his writ, and the place is not material. 21 E. 4. 15. 9 H. 6. 62, 63. 10 H. 7. 27. If the local justification he in the same county, the plaintiff is not put to maintain his writ; for one cannot take a traverse upon a traverse; but he ought to join issue or maintain his writ.
2. The defendants justify by reason of the possession of a a house, which they have for a term of years unexpired: and the plaintiff ought not to reply generally de fon tort demesne, except where the justification is personal and not real. In as much as it is only upon a lease for years that they justify, this makes a difference. 16 E. 4. 46. Trespass for entering the plaintiff’s land, the defendant justified by reason of a lease for years, the plaintiff shall not say de fon tort demesne. But it may be objected that the justification goes to the possession and not to the person. Answer. When the justification is in two parts, the cause and the personal tort; the justification may go to the whole; and therefore the plaintiff shall not say generally de fon tort demesne. 16 H. 7. 32. 3 Rep. 66. Crogate’s case.
Noy, for the plaintiff.
There is no cause of demurrer here. But where an estate for years comes in question, or a record, in such a case they ought to avoid the estate for years, and the record, by matter of as high a nature. In battery, the defendant justifies by a writ of the King, and warrant of the sheriff, there injuria sua, &c. is no plea, for there are two things, the record and the warrant, which is a matter of fact; the record cannot be tried by the jury. In trespass if the defendant justifies and draws a *222freehold in question, it is no replication; for he shall not put the freehold which is real with the rest that is personal. But when one alledges a freehold in excuse for a tort de injuria, &c. is a good plea. Here the defendant justifies by reason of a term, which does not go to the wounding, for he cannot *juftify the wounding a man, without an assault, ergo, the justification is by reason of a prior assault. If he deduces the plaintiff's lease, de injuria sua is no plea, but he ought to answer to the lease. But this is in trespass and not in battery. Yet it is aided by the statute of 27 El. 5. p. 332. on a general demurrer. For the reason that the plea in 19 H. 6. was bad, was the double matters in issue.