Peyton v. Rogers

• Decision Date: 31 May 1836
• Citation: 4 Mo. 254
• Parties: PEYTON v. ROGERS.
• Court: Missouri Supreme Court

4 Mo. 254

PEYTON

v.ROGERS.

Supreme Court of Missouri.

May Term, 1836.

ERROR TO THE CIRCUIT COURT OF MONROE COUNTY.

Peyton sued Rogers in an action of trespass of assault and battery. There was but one count in the declaration, and the defendant pleaded son assault deniesne. At the trial of the cause the defendant proved an assault and battery committed on him by the plaintiff. The plaintiff was then permitted by the court to give evidence of an assault and battery committed on him at another time by the defendant. The defendant by his counsel excepted to the opinion of the court, and this act of the court is assigned for error.

TOMPKINS, J.

If there be only one count in the declaration and the defendant has pleaded son assault, and there have been two distinct assaults, one excusable and the other not, the plaintiff should not reply, but should now assign another assault. But had there been in this declaration several counts, equal to the number of assaults, a new assignment would have been unnecessary. See 1 Chitty 625. There being but one count in this declaration, and the defendant having pleaded son assault demesne, and given evidence to support the issue made up, the Circuit Court committed error in allowing the plaintiff to give evidence of another assault. Its judgment is therefore reversed.