OPINION of Ae Court, by

This Was an action of trespass assault and battery, brought by Hardin against Harrison, in the Washington circuit court. The declaration contained two counts. Plea son assault demesne, On the trial the defendant introduced evidence to prove but one assault. On motion the court instructed the jury, if they believed the evi-Asnee* they must find for the' defendant. The plea go» *78íng to the whole declaration, was an admission of twa several batteries, which could only be justified by proving two several assaults. As he failed to do this, .the plaintiff was entitled to a verdict — Bul. N. P. 17- If, in fact, there had been but one battery, and the counts were intended, to charge them in different wat s, the defendant ought to have plead they were one and the same, and justified as to but one, or pleaded not guilty as to one, and justified as to the other. His failing to do this, they must be considered as separate causes of action ; and agreeable to the rule before stated the instruction of the court was erroneous.

Judgment reversed, and cause renaanded for ties®. «¡rial.