The general rule certainly is that, in an action of trespass for an assault upon the person, the plaintiff having established the allegations in his declaration as to the assault and beating, any excuse or justification therefor is to be shown by the defendants. The burden of proof upon this point would be upon the defendants, although the evidence to establish the jus tification may be found as well in the proof offered by the plaintiff as by that of the defendants. The court, on the trial of the present case, while they recognized the general principle to be as above stated, took a distinction as to this case, and held that under the plaintiff’s declaration this burden was not thrown upon the defendants. The theory of the court seems to have been that the plaintiff’s cause of action was a claim for damages for illegally interfering with his rights as a traveller, whom they were bound to carry over their road, and for depriving him of this right by putting him out of the cars. It is said that the language of the plaintiff’s declaration justifies such a view of the case. But, in the opinion of the court, the case set forth in the declaration is nothing more than an action for an assault and battery upon the person of the plaintiff while he was a passenger, or occupying a place in the cars. It does not present the question as it would have arisen, if the declaration had alleged that the plaintiff was a passenger in the cars having a legal right to be carried therein from Lynn to Boston, and the defendants, by force and by means of violence to his person, deprived him of the enjoyment of this legal right. In such case the burden might have been on the plaintiff to show as well his legal right to be carried in the cars to Boston as the violence to his person. The present case is of a different character, and the gravamen is an assault and beating the plaintiff while an actual passenger in the cars, and forcibly ejecting him therefrom; and, if this was proved, the burden of excusing or justifying such assault and battery would rest upon the defendants.
Exceptions sustained.
Bigelow, C. J., did not sit in this case.