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-/ 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 acquittalh; and the same rule holds after indictment and convictioni.

II. Declaration.

THIS is a transitory action, 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 done 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.

h Crosby v. Leng, 12 East. 409.

1 Corbett v. Barnes, Cro. Car. 444.

"

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 material, 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, 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 the 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. s. 97. n Ib.

o Litt. Sect. 485. 1 Inst. 283. a.

p English v. Purser, 6 East. 395., re

cognizing Michell v. Neale, Cowp. 828.

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

425.

(4) From the report of this case of Burgess v. Freelove it appears that the Court of Common 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.

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

III. Pleadings.

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. “In 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. s. 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, because the law will permit

r Stante v. Pricket, 1 Campb. 473.
s Bingham v. Gamault, London Sit-

tings, 5th April, 1788. coram Buller 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 2. 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 master. 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. It must be observed, that B. ought not to begin with striking, or offering violence to A1., for the law in the first instance, merely allows B., in defence of his posses

z 2 1 Inst. 282. b. 263. a.

a 2 Rol. Ab. 546. (D.) pl. 18 Bro. Trespass, pl. 128.

b 2 Rol. Abr. 546. (D.) pl. 2.

c Leward v. Basely, Ld. Raym. 62.

d 2 Rol. Abr. 546. (D.) pl. 3. Adm. per Cur. in Ld. Raym. 62. and Salk. 407.

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

e Barfoot v. Reynolds and another,

Str. 953.

f Per Lyndhurst C. B. Moriarty v.
Brookes 6 C. & P. 685.

g 2 Rol. Abr. 548. (G.) pl. 2.
h See the form, 2 Lutw. 1435.
i 2 Inst. 316.

(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.