Majority
p. 322SUPREME COURT. Francis Hagins agt. William De Hart. Tompkins Circuit, Feb. 6, 1856.
Headnote
In an action for an assault and battery, where the1 allegation in the complaint was, that the defendant, at a time and place specified, “ assaulted and beat the plaintiff,” to his damage, &c., held, the plaintiff might amend his complaint, on the trial, and without terms, by inserting a charge therein, that the defendant, at the same time and place, and in the same transaction, “ wounded the plaintiff and bit off both of his ears.”On the trial of this action before Mr. Justice Balcom, at the Tompkins circuit, the plaintiff proved by a witness that the defendant, in July, 1854, at the town of Lansing, in said county, assaulted the plaintiff, and threw him down, and jumped upon him. The plaintiff’s counsel then offered to prove that, at the same time and place, and in the same scuffle, the defendant, before he got off of the plaintiff, “ wounded him, and bit off both of his ears.” To this evidence the defendant’s counsel objected, on the ground that the complaint simply charged the defendant with “ assaulting and beating the plaintiff.”
Bruin & Williams, for plaintiff.
Dana, Beers & Howard, for defendant.
overruled the objection, and gave the plain- • tiff leave to amend his complaint by inserting therein a charge that the defendant, at the time and place mentioned in the complaint, and in the same scuffle, “ wounded the plaintiff, and bit off both his ears.”
The defendant’s counsel claimed, that the defendant was not then prepared to defend the charge for wounding the plaintiff, and biting off his ears; but the justice said he was not satisfied such claim was well founded, and remarked that he thought if the defendant was then prepared to defend the charge of<f as
p. 323
saulting and beating the plaintiff,” he must be prepared to defend his entire conduct during the transaction or scuffle between the parties, including that of “ wounding the plaintiff, and biting off his ears ”—if he had any defence to such charge; and he refused to impose any terms for allowing the plaintiff thus to amend his complaint.
The proof was given, which showed the defendant did the ■acts complained of under great provocation from the plaintiff, and the plaintiff had a verdict for only $51.