An action of trespass for an assault and battery, is a transitory action, and if the rule of the English courts of 1654, in its terms, extends to this description of action, it has never been so received and practiced upon in New Jersey. Besides, if it be a local action, the defendant will have every benefit of the exception on the trial by a motion for a non-suit.

Further, the general rule undoubtedly is, to bring forward a motion of this kind before the plea,* if it is grounded upon the common affidavit. When a special ground is laid, *393and circumstances are brought before the court, by which it is shewn, that the defendant may be exposed to unnecessary difficulty, or that the fair exercise of justice will be interrupted, it may be done even after plea filed.*

The defendant took nothing by his motion.