Townsend

After a consideration of this case upon a hearing in Bank, we are satisfied that the judgment and order ■denying defendant’s motion for a new trial should be reversed.

This action is to recover damages for personal injuries caused .'by an alleged wrongful and malicious assault made by defendant upon the person of plaintiff. The jury rendered a verdict for plaintiff in the sum of nine thousand dollars, upon which judgment was entered, from which and from an order denying his motion for a new trial defendant appeals. The main question in the case was whether the appellant used unnecessary force in expelling the respondent from a building in the possession of appellant; and we think that certain instructions of the court to the jury were misleading, and prejudicial to appellant.

The undisputed facts are these: Appellant and his partner Leach were in the rightful and peaceable possession of a small workshop, in which they were engaged in making and experimenting with certain machines for pitting fruits. Respondent entered the shop at a time when appellant was in an adjoining rear room, and after speaking to a young man in the shop, immediately commenced in a rude and wrongful manner…