delivered the opinion of this Court:

This was an action for an assault and battery brought by tbe appellee against tbe appellant. Among other defences, the appellant pleaded that the plaintiff, at the time when tbe assault was committed, had wrongfully entered *154upon the lands of the defendant, and was trespassing when the defendant warned him to leave, and he, plaintiff, refused; to which the plaintiff replied by way of new assignment, “ that over said premises, and along said road where the shooting occurred, he, the plaintiff, had a right of way;” on which replication, issue was joined.

The plaintiff, to maintain the issue joined, offered to prove that a road existed near where the alleged trespass was committed, more than twenty years ago; and further proved, that the title and possession of the real estate now held by the plaintiff and defendant, over which said road passes, was in the grandfather of the plaintiff and defendant up to the year 1844, under whom both the defendant and plaintiff claim, and within twenty years from the institution of this action. To the admissibility of which, for the purpose of showing the right of way over the defendant’s land, the defendant objected, upon the ground that the evidence of the witness proved there was a unity of possession, within twenty years, existing in the grandfather, and no adverse possession could commence while this unity of possession existed. Which objection was overruled, and the testimony permitted to go to the jury, to which the defendant excepted.

The objection rests upon the assumption, that the testimony excepted to was offered for the special purpose of establishing a right of way, by adverse possession, and a part of the evidence being inconsistent with that hypothesis, the whole should have been rejected. The record does not present this limited view of the object of offering the testimony. The offer was to maintain the issue generally, viz: “a right' of way over the ‘locus in quoat the time when the supposed trespass was committed. There is nothing circumscribing the object of the plaintiff’s offer, except the language of the defendant’s objection, which is not sufficient to countervail the statement of the bill of exception. If there was any supposable case in which such a right of way might exist, other than by adverse possession, the ruling of *155ilie Court below was right, for it* was not competent for the defendant to exclude evidence on one ground which might have been admissible on another.

The issue was a right of way vel non. The evidence offered, was that a road existed from the plaintiff’s land over the land of the defendant, near where the alleged trespass was committed, to the public road, more than twenty years ago. The fact that there was a unity of possession in the grandfather, of the lands owned by plaintiff and defendant, within twenty years, did not necessarily destroy the right of way which previously existed, or show it was lost by non-user or merger. The right of way might have been one of necessity. “ Upon the severance of a heritage, a grant will he implied, first, of all those continuous and apparent easements which have been used by the owner during the unity, though they have had no legal existence as easements; without which, enjoyment of the several portions could not he fully had.” Law of Easements, 71 to 85, cited in McTavish vs. Carroll, 7 Md. Repts., 360. There was nothing in the evidence to show there was any other way from the plaintiff’s farm to the public road, and it is not for this Court to infer such a state of facts.

This is not a question as to the sufficiency of evidence, but as to its admissibility. Where the evidence is offered, for a particular purpose, for which it is inadmissible, there it should he rejected, although it would he admissible generally; hut where it is offered generally, and i a per se admissible, its sufficiency to establish the Whole case, is a question to he determined by the jury, upon a prayer properly framed and presented after the evidence is closed. 6 G. & J., 488. Marshall vs. Haney, 4 Md. Rep., 498. Pegg vs. Warford, 7 Md. Rep., 582. The testimony being competent, and tending to establish the issue on the part of the plaintiff, was, we think, properly admitted.

Whether the locus in quo was a highway or road over which the plaintiff had a right of passage, was the fact to-be ascertained by the jury. The plaintiff’s right of action. *156(lid not depend upon his being at the time in the exact line of the road. He might, as was ingeniously argued, have been driven or diverted from the road by the act of the defendant. The testimony of the witness, that the road existed near where the alleged assault was committed, wa$ precise enough to go to the jury, as tending to establish the right of way, and it does not appear that it was objected to below on account of its indefiniteness.

Concurring with the Court below in its ruling, the judgment will be affirmed.

Judgment affirmed*