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count", the plaintiff, after proving one assault, cannot wave that, and proceed to give evidence of another.

III. Pleadings.

66 In

The general issue to an action of assault and battery is not guilty, which constitutes a proper issue in case the defendant has not committed the injury complained of.

On the general issue, not guilty, matter of justification cannot be given in evidence in mitigation of damages. But where an action was brought against the captain of a ship, who pleaded not guilty, the defendant cross-examined the plaintiff's witness as to expressions used by the plaintiff; which would have justified the imprisonment, they tending to raise mutiny and disobedience; and though it was objected to by the plaintiff, the evidence of what was said by him at the time of the imprisonment was received $ in mitigation of damages; for every thing that passed at that time is part of the transaction on which the plaintiff's action is founded, and he could not be surprized by this evidence. By stat. 7. Jac. 1. c. 5. any

action
upon

the case, trespass, battery, or false imprisonment, against any J. P., mayor, bailiff, constable, &c., for any thing done by virtue of their offices, and against all others acting in their aid or assistance, or by their command concerning their offices, they may plead the general issue, and give the special matter in evidence.” This statute was made perpetual by stat. 21 Jac. 1. c. 12. and extended to churchwardens, overseers of the poor, and others acting in their aid or by their command. See similar provisions as to officers of customs and excise, 6 Geo. 4. c. 108. 8. 97.

Money cannot be paid into court in this action. Stat. 3 & 4 W. 4. c. 42. s. 21.

Justification in Defence of Person.-If the plaintiff was the aggressor, and the injury of which he complains was occasioned by his own assault on the defendant, so that the act of the defendant became necessary for the defence of his person, the action cannot be maintained t, because the law will permit

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r Stante v.

Pricket, 1 Campb. 473. s bingham v. Garrault, London Sit.

tings, 5th April, 1788. coram Bul

ler J. Buller's N. P. 5th ed. 17. t Cockcroft v. Smith, Salk. 642.

any degree of violence to be justified, if it be necessary for the safety of the person. This defence or justification, which is the most usual in this action, and which is technically termed son assault demesne, must be pleaded specially z. In like manner a defendant may justify an assault and battery in the defence of his wife,a child (5), or servant b (6). So a wife may justify in defence of her husband, a child of a parent, and

a servant in defence of the person of his masterd. Where a servant justifies in defence of his master, it ought to be alleged in the plea that the plaintiff would have beat the master, if the servant had not interposed. In trespasse, assault, and battery, against A. and B., A pleaded son assault, and B. pleaded that he was servant to A., and that the plaintiff having assaulted his master in his presence, he in defence of his master struck the plaintiff. On demurrer, the plea was holden ill; for the assault on the master might be over, and the servant cannot strike by way of revenge, but in order to prevent an injury; and the right way of pleading is, that the plaintiff would have beat the master if the servant had not interposed prout ei bene licuit. Judgment for the plaintiff.

“ If a person comes up to attack me and I put myself in a fighting attitude, this is not an assault on my part, and will not make out for that person a plea of son assault demesne.f

Justification in Defence of Possession.—So a defendant may justify in defence of his possession 8: as if A. enter the close of B. unlawfully, B. having first requested (7) A. to depart, may, on his refusal, justify laying his hand on A. in order to remove him h. It must be observed, that B. ought not to begin with striking, or offering violence to Ai, for the law in the first instance, merely allows B., in defence of his possesz 2 1 Inst. 282. b. 263. a.

e Barfoot v. Reynolds and another, a 2 Rol. Ab. 546. (D.) pl. 18 Bro. Trespass, pl. 128,

f Per Lyndhurst C. B. Moriarty v. b 2 Rol. Abr. 546. (D.) pl. 2.

Brookes 6 C. & P. 685. Basely, Ld. Raym. 62. g 2 Rol. Abr. 548. (G.) pl. 2. d 2 Rol. Abr. 546. (D.) pl. 3. Adm. h See the form, 2 Lutw. 1435.

per Cur. in Ld. Raym. 62. and Salk. i 2 Inst, 316.

Str. 953.

c Leward v.

407.

(5) Clerk's Assistant, p. 90, 91.

(6) In Leewerd v. Basilee, Salk. 407. Ld. Raym. 62, it was said by the court, that a master could not justify an assault in defence of his servant, because the master might have an action per quod servitium amisit; which opinion is adopted in Bull. N. P. 18.

(7) Every impositio manuum is an assault and battery, which cannot be justified upon account of breaking the close in law without a previous request. Green v. Goddard, Salk. 641.

sivn, to lay his hand gently on A. Hence a charge of beating, wounding, and knocking the party down, cannot be justified by a plea of molliter manus imposuith. If indeed A. should forcibly resist the endeavour to remove him, it will then be lawful to oppose force to force, and any degree of violence which may be necessary in self defence will be justifiable. If the entry of the close be forcible, as by breaking down a gate, or the like, a previous request is unnecessary.'; for acts of violence, on the part of the trespasser, may be instantly opposed by such other acts of violence on the part of the owner, as may be necessary for the immediate defence of his possession. Trespass, assault, and battery, with a stickk: the defendant pleaded as to the assault and battery, that he was possessed of a close, and that the plaintiff, with force and arms and with a strong hand as much as in him lay, did attempt and endeavour forcibly to break into and enter the said close, whereupon the defendant resisted and opposed such entrance, and defended his possession as it was lawful for him to do, and that if any injury happened to the plaintiff, it was in defence of the possession of the close. Replication, de injuria sua propria absque tali causa, and issue found for the defendant. A motion was made to enter up judgment for the plaintiff, notwithstanding the justification, which was found for the defendant, on the ground that the plea could not be supported, on the authority of Jones v. Tresilian, 1 Mod. 36. where Twisden, J. said "you cannot justify the beating of a man in defence of your possession, but you may say that you did molliter manus imponere,&c. The case having been argued, Lord Kenyon, c. J. said, that the plaintiff could not succeed in his application, unless he could show that the words molliter manus imposuit were mere technical words; that a party might resist and oppose force by force, in defence of his possession, if necessary ; if the resistance were excessive, the plaintiff might shew that in a new assignment. Lawrence, J. said, “that the general form of pleading had been by molliter manus imposuit, and on this ground that the defendant ought not, in the first instance, to begin with striking the plaintiff, but the law allows him either in defence of his person or possession to lay his hand on the plaintiff, and then he may say, if any further mischief ensued, it was in consequence of the plaintiff's own act; so that the battery follows from the resistance. But it does not necessarily follow from any thing stated in this plea, that the defendant did more than gently lay his hands on the plaintiff in the first instance; and if not,

h Gregory and Wife v. Hill, 8 T. R. 299 k Weaver v. Bush, 8 T.R. 78. i Green v. Goddard, Salk. 651.

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this plea may stand consistently with the authorities.” Rule discharged. In framing justifications in defence of possession, it is not necessary for the defendant to set forth the particulars of his title; it is sufficient to state that defendant was possessed, &c. for this is merely an inducement and conveyance to the substance of the plea. Trespass of assault, battery, and wounding. Plea to the wounding, not guilty and to the assault and battery, that he was possessed of an house for years; that the plaintiff entered his house, 'and would have thrust him out of possession thereof, whereupon he molliter manus imposuit, to put him out, and the harm, if any done, was in defence of his own possession. On demurrer, it was contended, that the defendant ought to have set forth particularly, who made the lease, when it was made, and for how many years; but the court held the plea good; for the statement of the possession for years was only an inducement and conveyance to the justification, the substance of which was, that he offered to thrust him out of the possession of his house, and that the title or interest not coming in question, it was not necessary that the allegation should be as certain as where a claim was made by the defendant. The observations which have been made in respect of the defence of real property, apply also to the defence of personal property, for the protection of which the law will not permit violence to be offered in the first instance; and although it be not necessary in this case to request the person who has taken the property to restore it, yet, unless such property is seized, or attempted to be seized, forcibly, the owner cannot justify any thing more than gently laying his hands on the trespasser in order to recover it.

Justifications by Officers executing Process.-In like manner a sheriff's officer cannot justify any act more than laying his hand on another for the purpose of executing legal process, unless acts of violence become necessary by a resistance on the part of the person apprehended, or an endeavour to rescue himself m. A battery cannot be justified by shewing an arrest merelyn, because an arrest may be made without touching the person, as if a bailiff comes into a room where the defendant is, and, having locked the door, tells him that he is arrested, that is an arrest; for the defendant is in the custody of the officer. In consequence of this decision it was doubted, whether a defendant could justify a battery by stating that he gently laid his hands on the plaintiff; but 1 Skevill v. Avery, Cro. Car. 138. Str. 1049. and Ca. Temp. Hard. 298. m Truscott v. Carpenter and Man, more fully reported. Lord Raym. 229. Williams v. Jones, n Williams v. Jones, Ca. Temp. Hard.

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this mode of pleading was adjudged to be good, in Titley v. Forall, Willes, 688. And in Tottage v. Petty, Ca. Temp. Hardw. 358. and MSS. where to trespass for assault and battery, the defendant as to the assault and battery pleaded, that the plaintiff entered his house without his leave, and there disturbed him; whereupon the defendant requested the plaintiff to quit his house, and because the plaintiff would not, the defendant gently laid his hands on the plaintiff to thrust him out: on demurrer, the case of Williams v. Jones was cited as an authority to shew that this plea was bad; but Lord Hardwicke, C. J. said, “ It was not determined by us in Williams v. Jones, that a battery could not be justified by a molliter manus imposuit, but that it could not be justified by merely shewing an arrest.” The court were clearly of opinion that the plea was good, and gave judgment for the defendant (8). Regularly, when the defendant justifies under a writ, warrant, precept, or any other authority, he must set it forth in his pleap.

Other Justifications.--The law looks with an indulgent eye on such acts of discipline as are necessary for the preservation of social order. Hence a master may moderately correct his servant, a parent chastise his child, and a schoolmaster his scholar 4. In like manner an officer may justify the moderate and reasonable correction of those who are placed under his command, if they disobey his orders; and under particular circumstances a person may lay hands on another, in order to serve him with process. The defendant may justify even a maihem, if done by him as an

p 1 Inst. 283. a. Matthews v. Cary, 3

Mod. 137. 138. Carth. 73. S. C. q Rastal's Entr. 613. pl. 18. Ed. 2nd. r Harrison v. Hodgson, 10 B. & C.445.

s Lane and Degberg, H. 11 W.3. per

Treby, C. J. London Sittings. Salk.
MS. Gilb. Ev. 37. Ed. 1761. Bull.
N. P. 19. S. C.

(8) See an excellent note on this subject, and on the manner of pleading justifications of this kind by Serj. Williams, in Green v. Jones, 1 Saund. 296. “An officer cannot justify more than the assault, by virtue of the arrest, without shewing that the plaintiff resisted or endeavoured to rescue himself, unless it be by way of molliter manus imposuit, and in that manner he may justify the beating without shewing any resistance or attempt to rescue.

Bull. N. P. 19. cites Titley v. Foxall. In this case, however, as well as in the case of a plea of resistance, or an attempt to rescue, it is competent to the plaintiff to reply an unjustifiable or subsequent battery, as suggested by Kingsmil, J. in a case in 21 H. 7. “ Que puis cel matter de ces mains le defendant batit le plaintiff.” See Durnford's note, Willes's Reports, p. 17. n. (b).

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