The opinion of the court was delivered by
Royce, J.The only question reserved for the considera*254tion of this court, arises upon the charge of the judge. He was requested, by the plaintiff, to instruct the jury, that if the assault and battery, alleged in the declaration, had been ’ proved, the plaintiff was entitle to a verdict. This necessarily implied that proof of the several matters, contained in the defendant’s notice, could only affect the amount of damages to be given.
As the statute, instead of leaving every matter of justification or excuse, to be pleaded specially, has expressly provided that a written notice of facts, relied upon in defence, may accompany the general issue, it follows that if the evidence given under such notice, establishes a legal defence, the issue must be found for the defendant, although, in the outset, the plaintiff may have fully made out his cause of action. We have, therefore, only to consider the sufficiency of the matters stated in the notice, which we are now to understand were fully proved at the trial. If they constituted an entire defence to the action, the plaintiff’s request was correctly overruled ; if not, that request should have been complied with.
The notice sets forth a chain of facts with needless particularity, besides including several which are wholly immaterial. 'But we think, nevertheless, that a valid defence, in the nature of son assault demesne, appears in the notice. If the plaintiff was lying in wait to execute his threats of personal violence to the defendant,-and actually inflicted upon him a severe blow, at the time, and in the manner stated, the defendant had a right to pursue and lay hold of him, as well to ascertain the assailant as to protect himself against further injury.
The notice contains no express offer to prove that the plaintiff committed the first assault, or that the defendant used no unnecessary force ; and if it was deemed defective, on either of these grounds, there was a proper time for raising the objection. At present, we have only to inquire whether these defects, (if. they are such) were supplied by the evidence on trial. As to the first, we consider that the circumstances, as stated, conclusively imply that the plaintiff commenced the assault; and, consequently, that proof of that fact must have appeared in the evidence given. In reference to the second, the jury were charged, that if the de-*255feudant had-proved the facts contained in his notice, and if they should find that he used no more force than was necessary to protect himself against the plaintiff, they ought to return a verdict in his favor. They must have understood, that, without proof of this last fact, they were to find for the plaintiff. The verdict for the defendant has, therefore, established every fact essential to a good defence, and upon testimony not objected to at the time it was given.
Judgment of county court affirmed.