The opinion
Bigelow, J. *
The instructions to the jury in the present case seem to us to be defective and insufficient, because they do not contain the proper limitation and qualification of the right to use force to repel an assault. It is not enough for a defendant, in justification of an assault and battery, to prove that he acted in self-defence; but it must be made to appear, that no more force was used by him than the exigency reasonably demanded. If he was guilty of an unreasonable and disproportionate degree of violence towards the person of another, he is liable for such excess, although he was acting in. self-defence. In such cases the question is not merely whether the defendant was the assaulted party, and so had a right to repel force by force; but also as to the degree of the beating, and its proportion to the assault of the plaintiff. The instructions in this case required the jury merely to find the fact, that the assault set out in the plaintiff’s declaration was “ defensive only ”; whereas they should also have been directed to consider and determine, whether it was disproportionate to the assault relied on in justification; and if they so found it, to return a verdict for the plaintiff, giving damages for the excess. 2 Greenl. Ev. § 95.
The exception to the admission of certain testimony appears to us to be also well taken. Upon the question of license, it was undoubtedly competent to prove that certain persons, among whom was the plaintiff, had beén in the habit of frequenting the dwelling-house at the end of the passage way, and that the owner of the house had fastened it up for the purpose of excluding these persons from the premises. But the evidence as to the character of these persons, and that some of them had been in the state prison, was irrelevant and immaterial to the issue ; and *186 as its introduction manifestly had a tendency deeply to prejudice the plaintiff in the minds of the jury, we are of opinion that on this ground also, the verdict should be set aside. See Andrews v. Bartholomew, 2 Met. 509 ; Hall v. Power, 12 Met. 487 . New trial in the cowrt of common pleas.
Before the case came on for trial, judgment was entered by consent for the defendant, without costs.
Metcalf, J. did not sit in this case.