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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 specially. 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 highwayu, 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 constabley. 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 be 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 actions ; but if he mistakes the limitation of time, and pleads, not guilty within six years, the plea will be bad on demurrerb. 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 sui propria absque tali causâ. 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 injuriả sud propriá. On the general replication of de injuriâ suá propriã 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 other not, the plaintiff must new assign the assault for which he brought his action (10), otherwise the defendant will be entitled to a verdict on his justification. Where the plaintiff declares of a single act of assault and battery", to which the defendant pleads son assault demesne, the plaintiff cannot reply de injuriđ suâ propriá, and also new assign that the defendant beat the plaintiff in a more violent manner than was necessary for the defence of himself; because such replication and new assignment constitute in effect a double replication, which is not allowed by the rules of pleading.
z Bridgwater v. Bythway, 8 Lev. 113. h Blackmore v. Tidderley, Salk. 423. a Johnson v. Burton, Cro. Eliz. 860. and Lord Raym. 1099. bi Inst, 282. a. b.
i Macfadzen v. Olivant, 6 East, 388. c Bridgwater v. Bythway, 3 Lev. 113. k King and ux. v. Phippard, Carth. d Purset v. Hutchings, Cro. Eliz. 842. 201. Webber v. Liversuch, I Peake e King and ux. v. Phippard, Carth. 281. Add. C.51. f Serle v. Darford, Ld. Raym. 120. | Downs v. Skrymsher, 1 Brownl. R. and Lutw. 1435.
233. $ 21 Jac. 1. c. 16. s. 3.
IV. Verdict and Judgment. Damages may be given in this action not merely for the corporal injury, which in many cases may be very small, but also for the degrading insult with which it is accompanied. Against joint trespassers there can be but one satisfaction", and, therefore, if they are sued in one action, although they sever in pleas and issues, yet one jury shall assess damages for all; and if all the issues are found for the plaintiff, the jurors ought not to sever the damages, for, if they do, the verdict will be vicious (11). And if, in such case, judgment be entered for the separate damages, such judgment will be m 3 Roll. Abr. 680. (C.) pl. 3. Walsby n Franks v. Morris, 10 East, 81, n.
v. Oakley, London sittings after o Hob 66. Heydon's case, 5th Resol. M. T. 40 Geo. 3. MSS. S. P. per 11 Rep. 7. Kenyon, C. J.
(10) “ If there were two batteries on one day, and the one were on the plaintiff's own assault, and the other not, if the defendant will justify one de son assault demesne the plaintiff may make a new assignment of the other battery,” per Cur. in Elwis v. Lombe, 6 Mod. 120. A new assignment, however, in these cases, is only necessary where there is but one count in the declaration ; for if the declaration contain as many counts as there were assaults, &c. and some of them cannot be justified, the plaintiff may prove those without a new assignment.
Bull. N. P. 17. (11) On the trial of an action against two defendants A. and B. it was proved that the assault by A. was more violent than that by B. Lord Ellenborough, C. J. told the jury that the damages could not be severed, so as to give more damages against A. than against B. but that they might give their verdict against both, to the amount which they thought the most culpable ought to pay. Brown v. Allen and Oliver, 4 Esp. N. P. C. 158. See Lowfield v. Bancroft, Str. 910. and Bull. N. P. 15. to the same effect.
erroneous P. But, before judgment, the defect of the verdict may be cured, by the entry of a nolle prosequi against all the defendants, except one, and taking judgment against that one only 4. So if joint defendants suffer judgment by default, and the plaintiff execute separate writs of inquiry against them, whereupon several damages are given, it is irregular; and if final judgment be entered for those damages, such judgment will be erroneouss. But, before final judgment, the court will permit the plaintiff, in order to cure the error, to set aside his own proceedings, upon payment of costs, and to issue a new writ of inquiry.
V. Of the Costs. By stat. 22 and 23 Car. 2. c. 9. (12) “ In all actions of assault and battery, wherein the judge at the trial of the cause shall not certify under his hand upon the back of the record, that an assault and battery was sufficiently proved by the plaintiff against the defendant, the plaintiff, in case the jury shall find the damages to be under the value of forty shillings, shall not recover more costs than the damages so found shall amount unto.” It is not necessary that the certificate should be granted at the trial; if it be granted within a reasonable time after, it is sufficient, for the words of the statute cannot be expounded literally. Hence where the certificate was granted four days after the trial, but before the judge had left the assize town, it was holdent sufficient. Upon this statute, which does not extend to writs of inquiryų, it must be observed, that a certificate of an assault only is not sufficient to entitle the plaintiff to full costs, and, consequently, although an admission on the record of a battery, by a justification of it, will supersede the necessity of a certificate y, yet a similar admission of an assault only will not. Trespass: the declaration stated that defendant, with force and arms made an assault on plaintiff, and beat, bruised, p Crane v. Hummerstone, Cro. Jac. u Sheldon v. Ludgate, Bull. N. P. 329.
113. Hill v. Goodchild, 5 Burr. 2791. x Smith v Neesam, 2 Lev. 102. q Rodney v. Strode, Carth 19.
y Smith v. Edge, 6 T.R. 562. s Mitchell v. Millbank, 6 T.R. 199. 2 Page v. Creed, 3 T.R. 391. Brent Johnson v. Stanton, 2 B. & C.621. nan v. Redmond, 1 Taunt. 16.
(12) Extended to courts of Great Sessions for Wales and Chester, Court of Common Pleas for county palatine of Lancaster, and Court of Pleas for county palatine of Durham, by stat. 11 & 12 W. 3. c. 9. wounded, and ill treated him. Defendant pleaded the general issue, and two special pleas, omitting the beating, bruising, and wounding, as stated in the declaration, and justifying the assaulting and ill-treating only. These pleas, in substance, stated that J. S. being possessed of a house, in which a boy was making a noise, the defendant, as his servant, gently laid his hands upon the boy to remove him, when plaintiff, unlawfully interfered to assist the boy, whereupon the defendant gently laid his hand on plaintiff to prevent him from interfering, concluding with à traverse of the assault elsewhere than in the house. Replication, de injuriá sua propria and issue thereon. Verdict for plaintiff, damages ls. Held, that the special pleas admitted a battery, and that plaintiff was entitled to his full costs, although the judge had not certifieda. But if the defendant justify, and thereupon the plaintiff make a new assignment, to which the defendant pleads the general issue, the plaintiff will have no more costs b than damages without a certificate. It should seem that there was not, in this case, any issue on the justification.
An injury to a personal chattel, although laid in the same declaration with an assault and battery, is not within the statutec; but this rule holds only where such injury is a substantive and independent injury, and stated in a distinct and independent count; for where in trespass for an assault and battery and tearing plaintiff's clothes, the jury found that the tearing was in consequence of the battery, and gave less than forty shillings damages, it was holden that the plaintiff was not entitled to any more costs than damages. So where in an action of assault, and for tearing the plaintiff's clothes, the plaintiff recovered less than forty shillingse, although the declaration charged the tearing the clothes as a substantive fact, yet the tearing being stated in the same count with the assault and batteryf, and alleged to have been done at the same time and place, it was holden that the plaintiff was not entitled to any more costs than damages; for the court will construe the declaration so as to accomplish the object of the statute, and, after a general verdict, it will be intended that the tearing was found to be part of the same act, and a consequence of the battery.
By stat. 8 and 9 W. 3. c. 11. s. 1. “Where several persons are made defendants to any action or plaint of trespass, a Johnson v. Northwood, 1 Moore, d Cotterill v Tolly, 1 T. R. 655. Ham(C. P.) 420.
son v. Ashdead, Bull. N. P.329. and b Richards v Turner, Bull. N P.330. Sayer's Rep. 91. 5th edit.
e Mears v. Greenaway, 1 H. Bl. 29). e Milbourne v. Reade, 3 Wils. 322. f Lockwood v. Stannard, 5 T. R. 482.