Williamson County IL Archives Court.....Ayres, V Kelley 1849
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 22, 2008, 10:28 am

Source: Reports Of Cases Illinois
Written: 1849

Thomas P. Ayres v. Robert R. Kelley.

Appeal from Williamson.

1. Pleading — replication, de injuria. A plaintiff may, under the replication 
of de injuria, to the plea of son assault demesne, without a special 
replication or a new assignment, show that the defendant's battery was 
excessive.(l)

2. Same. The replication de injuria is a general traverse of the whole plea, 
and under it the plaintiff is at liberty to adduce any proof that tends to 
disprove any of the facts alleged in the plea.(2)

3. Practice—pleading new matter in trespass. It is only where the plaintiff 
seeks to introduce new matter, which shows that the facts stated in the plea, 
though true, do not justify the trespass, that he is required to reply 
specially, or new assign. (3)

4. Same—right to abandon claim. It is the right of either party to a suit to 
abandon any substantive part of his claim or defense.(4)

This was an action of trespass, for assault and battery, by Kelley against 
Ayres. Heard at the September term, 1849, before Denning, judge, and a jury. 
Verdict and judgment for plaintiff for $33 33. The defendant appealed. The 
defendant filed two pleas — 1st, not guilty; 2d, non assault demesne. Before 
the trial of the cause defendant moved the court for leave to withdraw his 
plea of not guilty, which was denied by the court. The denial of this motion 
is assigned for error.

J. Dougherty, for appellant, insisted: 1st. That the motion to withdraw a plea 
is a motion of course, and refers to Tidd's Practice, 674.

2d. If the defendant justifies in an action of trespass, and the plaintiff 
relies on any fact or circumstance which either deprives the defendant of the 
justification, etc., he must reply it specially, instead of replying de 
injuria sua, etc., because such fact or circumstance can not be given in 
evidence under the issue de injuria. Starkie's Evidence, page 1134, note a; 1 
Chitty on Pleading, 592, 593, and 414; Warrell v. Glare, 2 Campbell, 629; 15th 
Mass., 347.

E. P. Wingate, for appellee.

Treat, C. J. This was an action of trespass, for an assault and battery. The 
defendant pleaded not guilty, on which issue was taken, and son assault 
demesne, to which plaintiff replied de injuria. Previous to the trial the 
defendant asked leave to withdraw the plea of not guilty, which the court 
denied. On the trial, the court refused to instruct the jury, "that, if the 
complainant committed the first assault, the verdict should be not 
guilty; "but instructed them that if the defendant carried his resistance 
further than was necessary, in self defence, they should find for the 
plaintiff.

It is insisted that, under the issue formed in this case, the defence was 
complete on proof that the plaintiff committed the first assault, although the 
defendant may have used more force than was necessary to repel it. There are 
some authorities that favor this view of the case, but the better opinion 
seems to be, that the plaintiff may, under the replication of de injuria to 
the plea of son assault demesne, and without a special replication or a new 
assignment, show that the defendant's battery was excessive. It is so laid 
down in 2 Greenleaf's Ev., sec. 95; 1 Stephens' N. P., 216, and Chitty's Pl., 
626, 10th Am. Ed.; and expressly decided in the cases of Fisher v. Bridges, 4 
Blackford, 518, and Curtis v. Carson, 2 New Hampshire, 539. In Bennett v. 
Appleton, 25 Wendell, 371, it was held, in an action of assault and battery, 
where molliter manus imposuit was pleaded, that the plaintiff could, under the 
replication de injuria, recover damages for an excess of force on the part of 
the defendant. In Hannen v. Edes, 15 Mass., 347, where the defendant to an 
action for an assault and battery pleaded that as master of a vessel he 
moderately chastised the plaintiff, one of the crew of the ship, for a wilful 
disobedience of orders, to which the plaintiff replied de injuria, the court 
held that it was competent for the plaintiff to prove that the beating was 
excessive, and beyond all proportion to the offence committed. Those cases are 
not distinguishable in principle from the one before us. The replication de 
injuria is a general traverse of the whole plea, and under it the plaintiff is 
at liberty to adduce any proof that tends to disprove any of the facts alleged 
in the plea. It is only when the *plaintiff seeks to introduce new matter, 
which shows that the [*19] facts stated in the plea, though true do not 
justify the trespass, that he is required to reply specially or new assign. 2 
Greenleaf's Ev., § 633. The plea in this case, pursuing the form in 3d 
Chitty's Pl., 1068, alleges, that the defendant committed the act complained 
of in self defence, "necessarily and unavoidably," and did "no unnecessary 
damage to the plaintiff." A material averment of the plea is, that no more 
force was used than was necessary to repel the assault. If that degree of 
force was exceeded, the averment fails, and with it the defence. There was no 
error in the instructions of the court.

We think, however, that the court erred in not allowing the defendant withdraw 
his plea. The plaintiff has an unqualified right to dismiss his whole case, or 
any substantive cause of action stated in his declaration. The rights of the 
parties should be reciprocal. The defendant should be permitted to abandon his 
whole defence, or any distinct part of it. This is a matter of course. The 
court has no discretion over it. How the plaintiff can be injured by the 
unconditional withdrawal of a plea, we are at a loss to conceive. In this 
case, it removed the burden of proving his cause of action. It was insisted on 
the argument that the defendant was not prejudiced by the refusal of the 
court. It may be otherwise. His object in withdrawing the plea may have been 
to dispense with the further attendance of the witnesses relied on to prove 
the cause of action, and thereby diminish the amount of costs which he might 
be adjudged to pay.

The judgment of the circuit court is reversed, with costs, and the cause is 
remanded for further proceedings.

Judgment reversed.

Caton, justice, said, I am not prepared to concur in reversing this judgment.

-----------------
Followed—Ambrose v. Root, 11 Ill., 497; Cited — Dana v. Adams, 13 Ill., 691; 
Limited — Spencer v. M'Masters, 16 Ill., 405; Overruled—as to withdrawal of 
pleas, New Eng. Ins. Co. Wetmore, 32 Ill., 221; Gizler v. Witzel, 32 Ill., 322.

(1) If greater force was used than necessary, as in taking possession of 
premises under a contract of lease conditioned to enter and re-possess in the 
event of default of payment of the rent reserved, the party injured should 
reply the excess, or give evidence thereof, under general replication de 
injuria. Ambrose v. Root, post, p. 497.

(2) On issue taken upon a replication de injuria to plea of son assault 
demesne, the burden is on defendant to show the assault was made in necessary 
self defense, and, that, in making the assault, he used no more force than was 
necessary for self protection. Gizler v. Witzel, 82 Ill., 323.

(3) Where a defense sets up a matter of positive, or absolute, right, a 
special replication is required. Where the defense amounts to an excuse for 
the act complained of or the like, a general replication, as de injuria, is 
sufficient. Allen v. Scott, 13 Ill., 80; Lincoln v. M'Laughlin, 74 Ill., 11; 
as, in trespass against an officer who levies on the separate property of a 
married woman for the debt of her husband, and who pleads his writ, and that 
the property was in the husband, Lincoln v. M'Laughlin, 74 Ill. 11. See 
Collins v. Waggoner, Breese (ed. 1885), 26, note.

(4) This doctrine is not approved. It was sanctioned in Fitzgerald v. 
Furgeson, 25 Ill., 138, but a modification was, by implication, suggested in 
Dana v. Adams, 13 Ill., 691, in which case it was held defendant may, of 
right, withdraw a plea, but not his appearance, unless by leave of court, upon 
special application, see Brush Seguin, 24 Ill., 254. In New England Fire and 
Marine Ins. Co. v. Wetmore, 32 Ill., 221, the court declined to follow this 
case, and, in effect overruled it, holding it discretionary with the court to 
allow or refuse to defendant to withdraw his pleas; so, in Miles v. Danforth, 
37 Ill., 156, it was held discretionary to allow the withdrawal of a 
replication. And in Leigh v. Hodges, 3 Scam., 15, it is always discretionary 
with the trial court to allow the withdrawal of a plea.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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