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fendantd; the wanton manners of the wife, or first advances made by her to the defendante; a prior elopement of the wife and adulterous intercourse with another person, or having had a bastard before marriagef; because by bringing the action the husband puts the general behaviour of the wife in issue. So letters written by the wife to the defendant before his connection with her, soliciting a criminal intercourses, &c. may be given in evidence. But the defendant will not be permitted to prove acts of misconduct of the wife subsequent to the commission of the act complained of in the action b.

Although the damages recovered are under forty shillings, yet the plaintiff shall be entitled to full costsi; this action not being within the statute 22 and 23 Car. 2. c. 9. (11).

It has been supposed, that in this action a new trial cannot be granted for excessive damagesk; but if it appear to the Court, from the amount of the damages given, as compared with the facts of the case laid before the jury, that the jury must have acted under the influence, either of undue motives, or some gross error or misconception on the subject, the court will think it their duty to submit the question to the consideration of a second jurym.

d Per Bull. J. in Duberley v. Gunning, 8 Per Lord Kenyon, C. J. Elsam v. 4 T. R. 657.

Fawcett, 2 Esp. N. P. C. 562. e Per Lord Ellenborough, C. J. in h Per Lord Kenyon, C. J. S. C.

Gardiner v. Jadis, March 2, 1805, i Batchelor v. Bigg, 3 Wils. 319. 2 London Sittings.

BI. R. 364. S. C. f Roberts v. Malston, Hereford, 1745, k See Wilford v. Berkeley, 1 Burr.

per Willes, C. J. Gilb. Evid. 113. 609. Duberley v. Gunning, 4 T. R. Ed. 1761. Bull. N. P. 296. S. C.

m Chambers v. Caulfield, 6 East, 256.

651.

(11) See this statute, in the following chapter.

CHAP. III.

OF ASSAULT AND BATTERY.

I. Of the Nature of an Assault and Battery, and in what

Cases an Action for Assault and Battery may be main

tained. II. Declaration.

III. Pleadings. IV. Verdict and Judgment. V. Costs.

1. Of the Nature of an Assault and Battery, and in what

Cases an Action for an Assault and Battery may be maintained.

An assault is an attempt, with force or violence, to do a corporal injury to another, as by holding up a fist in a menacing mannera; striking at another with a cane or stick, though the party striking misses his aim; drawing a sword or bayonet; throwing a bottle or glass with intent to wound or strike; presenting a gun at a person who is within the distance to which the gun will carry; pointing a pitchfork at a person who is within reach; or by any other similar act, accompanied with such circumstances as denote at the time an intention (1), (coupled with a present ability) of using

a Pinch's Law, B. 3. c. 9. 1 Hawk. P. b Genner v. Sparks, 6 Mod. 173, 4. C. c. 62. s. 1.

and Salk. 79.

(1) Whether the act shall amount to an assault, must in every case be collected from the intention. Trespass for assault: Plea, son as, sault demesne. Replication, de injurid sud proprid. The defendant and another person were fighting, and the plaintiff came and took hold of the defendant by the collar, in order to separate the combatants, whereupon the defendant beat the plaintiff. The plaintiff's counsel offering to enter into this evidence, it was objected on the other actual violence, against the person of another. For an assault, which is considered as an inchoate violence, the law has provided a remedy by an action of trespass vi et armis, at the suit of the injured party, for the recovery of damages, commensurate to the injury sustained (2).

A battery, which always includes an assault, is an injury inflicted on a person by beating, either with the hand or an instrument. The form of action prescribed by law, in the case of battery, is the same as that in assault, viz. an action of trespass vi et armis. In order to maintain this action, it is immaterial whether the act of the defendant be wilful or not (3). Hence this action lies against a soldier who hurts his comrade while they are exercising, unless the defendant can shew such circumstances as will make it appear to the court that the injury done to the plaintiff was inevitabled, and that the defendant was not chargeable with any negligence: the merely pleading that the defendant committed the injury casualiter et per infortunium et contra voluntatem suam is not sufficient, for no man shall be excused of a trespass, unless it may be judged utterly without his fault. The defendant was uncocking a gune, and the plaintiff standing to see c Termes de la ley, Battery, Com. Dig. d Weaver v. Ward, Hob. 134. Battery.

e Underwood v. Hewson, Str. 596.

side, that the plaintiff ought to have replied this matter specially; but Legge, Baron, over-ruled the objection, observing that the evidence was not offered by way of justification, but for the purpose of shewing that there was not any assault, for it was the quo animo which constituted an assault, which was matter to be left to a jury. Griffin v. Parsons, Gloucester, Lent Assizes, 1754. MSS. “No words can amount to an assault, though, perhaps, they may in some cases serve to explain a doubtful action; as if a man were to lay his hand upon his sword, and

say, If it were not assize time, he would not take such language:" These words would prevent the action from being construed an assault, because they shew he had no intent to do him any corporal hurt at that time.” Bull. N. P. 15.

(2) For the law relating to indictments for assault and battery, see 1st Hawk. P. C. ch. 62. s. 1, 2. 1st East's P. C. ch. 8. s. 1. The party injured may proceed by action and indictment for the same assault, and the court, in which the action is brought, will not compel the plaintiff to make his election, to pursue either one or the other; for the fine to the king, upon the criminal prosecution, and the damages to the party, in the civil action, are perfectly distinct in their natures.-Jones v. Clay, 1 Bos. and Pul. 191.

(3) Neither does the degree of violence with which the act is done make any difference. Per le Blanc, J. 3 East, 602.

it, it went off, and wounded him: it was holden, that the plain-1 tiff might maintain trespass.

This action lies not only against him who commits the injury, but against him also at whose command it is donef: hence if A. command B. to beat another person, and B. does it accordingly, A. is guilty of the trespass as well as B. Although the plaintiff declares for an assault and battery, yet he may recover for the assault only. Although a plaintiff has been indicted for a felonious assault, by stabbing, and acquitted, the party injured may, notwithstanding, sue him for damages in a civil action, if there has not been any collusion in procuring the acquittalb; and the same rule holds after indictment and convictioni.

II. Declaration.

This is a transitory actionk, and consequently the venue may be laid in any county', except where it is otherwise directed by statute; as, where the action is brought against justices of the peace, mayors, or bailiffs of cities, or townscorporate, head-boroughs, port-reeves, constables, tithingmen, churchwardens, overseers of the

poor,

&c. or other persons acting in their aid and assistance, or by their command, for any thing done in their official capacity; in these cases, the venue, by stat. 21 J. 1. c. 12. s. 5. must be laid in the county where the facts were committed; otherwise the jury, who try the cause, shall find the defendant not guilty, without any regard to any evidence given by the plaintiff touching the trespass, battery, &c.

The provisions of the preceding statute having been found to be salutary, they have by stat. 42 G. 3. c. 85. s. 6. been extended to all persons holding a public employment, or any office, station, or capacity, civil or military, either in or out of the kingdom, and who, by virtue of such employment, have power to commit persons to safe custody; provided that, where any action shall be brought against such persons in this kingdom for any thing d'une out of this kingdom, the plaintiff may lay the act to have been done in Westminster or in any county where the defendant shall reside. Actions

f 1 Rol. Abrid. 555. (V.) pl. 2. i Adm. per Cur. S. C.
g Lib. Ass. Anno. 22. fol. 99. pl. 60. k Litt. sect. 485.
Bro. Trespass, pl. 40.

1 Corbett v. Barnes, Cro. Car. 444. h Crosby v. Leng, 12 East. 409.

brought against any persons for any thing done by any officer of the customsm or excise“, or others acting under the direction of commissioners of customs, in execution, or by reason of their office, must be laid and tried in the county where the facts were committed. The day is not materialo, neither is the plaintiff obliged to prove that the fact was committed on the day laid in the declaration. Proof of the trespass at any time before the commencement of the action is sufficient. An assault, being one entire individual act, cannot be committed at different times, and consequently ought not to be stated in the declaration to have been so committed. In trespass and assault, it was alleged in the declaration, that the defendant on such a day, and on divers other days and times between that day and the day of exhibiting the bill, made an assault on the plaintiff; the declaration was holden bad on special demurrer. But where the declaration stated that the defendant assaulted the plaintiff on divers days and times 4, it was adjudged good on special demurrer (4). The declaration ought to allege the fact to have been committed vi et armis and contra pacem. Doubts seem to have been entertained, whether thə omission of these words was matter of form or substance at the common law. But now, by stat. 16 and 17 Car. 2. c. 8. s. 1. the omission is aided after verdict; and by stat. 4. Ann c. 16. s. 1. it is enacted, that no exception shall be taken in any court of record of the omission of vi et armis and contra pacem, except the same shall be especially shewn for cause of demurrer. The declaration ought to allege the commission of the fact positively, and not by way of recital, e. g. for that on such a day the defendant made an assault upon the plaintiff, and not for that, whereas, &c. If the declaration contain only one

m 6 Geo. 4. c. 108. 8. 97.

n Ib.

cognizing Michell v. Neale, Cowp.

828.
q Burgess v. Freelove, 2 Bos. & Pul.

425.

o Litt. Sect. 485. I Inst. 283. a.
p English v. Purser, 6 East. 395., re-

(4) From the report of this case of Burgess v. Freelove it appears that the Court of Coumon Pleas did not consider Mitchell v. Neale, Cowp. 828, as a sound authority. But Lord Ellenborough, C. J. in English v. Purser, took a distinction between the words “ made an assault," in Michell v. Neale, and the word “ assaulted," in Burgess v. Freelove, on the ground that the latter might mean that the defendant committed so many different assaults on the different days, admitting, however, that the distinction was very nice. This distinction certainly was not adverted to by the court in Burgess v. Freelove.

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