sion, 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 suá propriâ absque tali causá, 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. VOL. I. 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 guilty1 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 himselfm. A battery cannot be justified by shewing an arrest merely", 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. more fully reported. n Williams v. Jones, Ca. Temp. Hard. this mode of pleading was adjudged to be good, in Titley v. Foxall, 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 plea P. 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. 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 mayr lay hands on another, in order to serve him with process. The defendant may justify even a maihems, if done by him as an Lane and Degberg, H. 11 W. 3. per 66 (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). officer in the army for disobeying orders; and he may give in evidence the sentence of the council of war upon a petition against him by the plaintiff; and if by the sentence the petition is dismissed, it will be conclusive evidence in favour of the defendant. The several preceding instances of justifications must, as has been observed with respect to the justification of son assault demesne, be pleaded speciallyt. In framing these pleas care must be taken that the battery be admitted and confessed; otherwise, on demurrer, the plaintiff will be entitled to judgment; for it is a rule of pleading that the party justifying must shew and admit the fact. The fact admitted must also amount in law to a battery by the defendant, otherwise it will not be tantamount to an admission, and the plea will be bad, as being in violation of the preceding rule; although the defendant might have succeeded, if he had pleaded the general issue. The following case will illustrate this position :-Trespass, assault, and battery. The defendant pleaded that he was riding on a horse in the king's highway", and that his horse being frightened, ran away with him, and that the plaintiff was desired to go out of the way, and did not, and the horse ran upon the plaintiff against the defendant's will. On demurrer, the plaintiff had judgment, because the defendant had justified the battery, and yet had not confessed that which amounted to a battery by himself; for if the horse ran away against the will of the rider, it could not be said, with any colour of reason, to be a battery in the rider (9); it was admitted, however, by the court, that if the defendant had pleaded not guilty, this matter might have acquitted him upon evidence. Of local and transitory Justifications.-If the cause of the justification be local; as if a constable of a town in another county arrests a man that breaks the peace, the constable may traverse the county in which the declaration is laid: but he must not only traverse that but all other places, saving in the town whereof he is constable. So if the declaration charge the defendant with an assault and battery in London, if the defendant justify in defence of his possession at Waltham, in Essex, he ought to traverse every t 1 Inst. 282. b. x 1 Inst. 282. a. b. u Gibbons v. Pepper, Salk. 637. and y Peacock v. Peacock, Cro. Eliz. 705. Lord Raym. 38. (9) If A. beats the horse of B. whereby he runs against C., A. is the trespasser, and not B. So if A. takes the hand of B. and with it strikes C., A. is the trespasser, and not B. Per Cur. Salk. 638. and Ld. Raym. 39. other place except Waltham. To traverse the parish and. not the county will be bad on demurrera. If the matter of the justification be transitory, it ought to follow the place laid in the declaration". An action was brought for a battery at D., the defendant justified under the command of certain bailiffs executing legal process at S. in the same county. The plea was holden to be bad; for as the bailiffs have authority throughout the whole county, the cause of justification was not local, so that the defendant ought to have justified in the same place in which the plaintiff had declared. A battery in his own defence is not locald, but may be justified in every place; consequently, such a justification, according to the preceding rule, must follow the place laid in the declaration. If a justification be at the same time and place, it is needless to aver, that it is the same trespasse. Where the defendant pleads a local justification', the plaintiff may vary in his replication, either in time or place, from the time or place laid in the declaration, and it will not be a departure. To an action for an assault and battery, the defendant may plead not guilty within four years next after the cause of action; but if he mistakes the limitation of time, and pleads, not guilty within six years, the plea will be bad on demurrer1. From a modern case it appears that this demurrer must be speciali. Of the Replication. The usual replication to the preceding justifications, where they consist merely of matter of fact, triable by the country, as son assault demesne, is, that the defendant committed the trespass of his own wrong, and without the cause alleged by him in his plea. This is termed a replication de injuria suá propriá absque tali causá. If the defendant pleads son assault demesnek, and the plaintiff can justify it, such justification ought to be pleaded specially; for it cannot be given in evidence under the general replication of de injuria suá propriá. On the general replication of de injuria sua propria to son assault demesne', the plaintiff cannot give in evidence a battery at a day and place different from that laid in the declaration. Hence if there were two assaults, one of which the defendant can justify, and the |