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An assault

may be by an unlawful imprisonment.

and also of a common assault; and the Judges thought the finding as to the latter clearly right. (a) And making a female patient strip naked, under pretence that the defendant, a medical practitioner, cannot otherwise judge of her illness, if he himself takes off her clothes, is an assault. A girl of sixteen was taken by her parents to the defendant, a German quack, on account of fits by which she was afflicted; he said he would cure her, and bid her come again the next morning: she went accordingly the next morning by herself, and he told her she must strip naked; she said she would not. He said she must, or he could not do any good. She began to untie her dress, and he stripped off all her clothes; she did nothing; he pulled off every thing; she told him she did not like to be stripped in that manner. When she was naked, he rubbed her with a liquid. The case was left to the jury to consider whether the defendant believed that stripping the girl would assist his judgment, or whether he did not strip her wantonly without thinking it necessary; and they were told that the making her strip and pulling off her clothes might under the latter circumstances justify a verdict for an assault. The jury found the defendant guilty; and, upon a case reserved, it was held that the conviction was right. (b)

An unlawful imprisonment is also an assault; for it is a wrong done to the person of a man, for which, besides the private satisfaction given to the individual by action, the law also demands public vengeance, as it is a breach of the king's peace, a loss which the state sustains by the confinement of one of its members, and an infringement of the good order of society.(m) To constitute the injury of false imprisonment, there must be an unlawful detention of the person. With respect to the detention, it may be laid down that every confinement of the person, whether it be in a common prison, or in a private house, or by a forcible detaining in the public streets, will be sufficient. (n) And such detention will be unlawful unless there be some sufficient authority for it, arising either from some process from the courts of justice, or from some warrant of a legal officer, having power to commit under his hand and seal, and expressing the cause of such commitment; or arising from some other special cause sanctioned, for the necessity of the thing, either by common law or by act of parliament. (0) And the detention will be unlawful, though the warrant or process, upon which it is made, be regular, in case they are executed at an unlawful time, as on a Sunday; or in a place privileged from arrests, as in the verge of the king's court.(p) Especial provision is made concerning the arrest of

(a) Rex v. Nichol, Mich. T. 1807.
MS. Bayley, J., and Russ. & Ry. 130.
(b) Rex v. Rosinski, East. T. 1824.
MS. Bayley, J., and Ry. & Mood.

C. C. 19.

(m) 1 Hawk. P. C. c. 60. s. 7. 4 Blac. Com. 218. And see precedents of indictments for assaults and false imprisonment Cro. Circ. Comp. 61, 62. 2 Stark. 385, 386. 8 Chit. Crim. L. 835, et sequ. As to such false impri

sonment as amounts to Kidnapping, &c. see ante, 582, et sequ.

(n) 2 Inst. 589. 4 Com. Dig. Imprisonment. (G). 3 Blac. Com. 127. (0) 3 Blac. Com. 127.

(p) Id. ibid. 29 Car. 2. c. 7. And see further as to unlawful imprisonments, 4 Com. Dig. Imprisonment. (H). 6 Bac. Ab. Trespass (D) 3. 2 Selw. N. P. Im prisonment.

CHAP. XI. § 1.] By Unlawful Imprisonment.

foreign ambassadors, or other foreign public ministers, and their domestics, or domestic servants, by the statute 7 Anne, c. 12. which makes any process against them, or their goods and chattels, altogether void; and provides, that the persons prosecuting, soliciting, or executing, such process, shall be deemed violators of the law of nations, and disturbers of the public repose; and shall suffer such penalties and corporal punishment, as the Lord Chancellor, and the two Chief Justices, or any two of them, shall think fit. But no trader within the description of the bankrupt laws, who shall be in the service of any ambassador, or public. minister, is to be privileged or protected by this act; nor is any one to be punished for arresting an ambassador's servant, unless the name of such servant be registered in the office of one of the principal secretaries of state, and by him transmitted to the sheriffs of London aad Middlesex, or their undersheriffs or deputies.(g)

not include a

It has been supposed that every imprisonment includes a bat- Every impritery:(r) but this doctrine was denied in a recent case, where it sonment does was said by the court that it was absurd to contend that every battery. imprisonment included a battery. (s)

Whether the act shall amount to an assault must, in every case, be collected from the intention. Thus, in an action for an assault, person were where it appeared that the defendant and another fighting, when the plaintiff came up and took hold of the defendant by the collar, in order to separate the combatants, upon which the defendant beat the plaintiff, it was objected to the counsel for the plaintiff, who offered to enter into this evidence, that it ought to have been specially stated in the replication to the plea of son assault demesne: but the objection was overruled, on the ground that the evidence was not offered by way of justification, but for the purpose of shewing that there was not any assault, and that it animo which constituted an assault, which was matter was the quo to be left to the jury.(t) So to lay one's hand gently on another whom an officer has a warrant to arrest, and to tell the officer that this is the man he wants, is said to be no battery.(u) And if the injury committed were accidental and undesigned, it will not amount to a battery. Thus, if one soldier hurts another by discharging a gun in exercise, it will not be a battery. (v) And it is no battery if, by a sudden fright, a horse runs away with his rider, and runs against a man.(w) So where upon an indictment

(q) See as to the occasion of passing this act, 3 Blac. Com. 254, 255, 256.; and, as to the construction of it, the cases collected in 2 Evans's Col. Stat. Part IV. Cl. iii. No. 21.

(r) Bull. N. P. c. 4. p. 22.; and the opinion was adopted by Lord Kenyon, in Oxley v. Flower and another, 2 Selw. N. P. Imprisonment, I.

(s) Emmett v. Lyne, 1 New Rep.

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Ab. Ass. & Batt. (B).

(v) Weaver v. Ward, Hob. 134. 2
Roll. Ab. 548. 1 Bac. Ab. Ass. & Batt.
(B). But if the act were done without
sufficient caution, the soldier would
be liable to an action at the suit of
the party injured; for no man will
be excused from a trespass, unless it
be shewn to have been caused by
inevitable necessity, and entirely with-
out his fault, Dickenson v. Watson,
Sir T. Jones, 205. Underwood v Hew-
son, 1 Str. 595. 2 Blac. R. 896. Selw.
N. P. Ass. & Batt. 34.

(w) Gibbons v. Pepper, 4 Mod. 405.

The intention with which

the act is done
is material in

the inquiry
whether it
will amount to

an assault.

Cases where

the force used may be justified, and will not amount to

an assault.

for throwing down skins into a man's yard, being a public way, by which a person's eye was beaten out, it appeared by the evidence, that the wind blew the skin out of the way, and that the injury was caused by this circumstance, the defendants were acquitted.(x) It seems also that if two, by consent, play at cudgels, and one happen to hurt the other, it would not amount to a battery, as their intent was lawful and commendable, in promoting courage and activity. (y)

In some cases force used against the person of another may be justified, and will not amount to an assault and battery. Thus, if an officer having a warrant against one who will not suffer himself to be arrested, beat or wound him, in the attempt to take him; or if a parent, in a reasonable manner, chastise his child; or a master his servant, being actually in his service at the time; or a schoolmaster his scholar; or a gaoler his prisoner; or if one confine a friend who is mad, and bind and beat him, &c. in such a manner as is proper in such circumstances; or if a man force a sword from one who offers to kill another therewith; or if a man gently lay his hands upon another, and thereby stay him from inciting a dog against a third person; no assault or battery will be committed by such acts. (2) So if A. beat B. (without wounding him, or throwing at him a dangerous weapon,) who is wrongfully endeavouring, with violence, to dispossess him of his lands, or of the goods, either of himself or of any other person, which have been delivered to him to be kept, and will not desist upon A.'s laying his hands gently upon him, and disturbing him; or if a man beat, wound, or maim, one who is making an assault upon his own person, or that of his wife, parent, child, or master; or if a man fight with, or beat, one who attempts to kill any stranger; in these cases also it seems that the party may justify the assault and battery.(a) It has been holden that a master may not justify an assault in defence of his servant, because he might have an action for the loss of his service: (b) but a different opinion has been entertained on this point; (c) and in a modern case Lord Mansfield said, "I cannot say that a master interposing, when "his servant is assaulted, is not justifiable under the circum"stances of the case; as well as a servant interposing for his But if the horse running against the man were occasioned by a third person whipping him, such third person would be the trespasser. 1 Bac. Ab. Ass. & Batt. (B). And, upon the prinIciples which have been before mentioned, such an act in a third person, causing death to any one, may, under certain circumstances, amount to felony. Ante, 526.

(x) Rex . Gill and another, 1 Str.

190.

(y) 1 Bac. Ab. Ass. & Batt. (B). referring to Dalt. c. 22. Bro. Coron. 229. But in the notes to Bac. Ab. ub. sup. the case of Boulter v. Clark, Abingdon Ass. cor. Parker, C. B. Bul. N. P. 16. is referred to, in which it was ruled that it was no defence to allege that

the plaintiff and defendant fought together by consent, the fighting itself being unlawful: and the case of Matthew v. Ollerton, Comb. 218. is also referred to as an authority, that if one license another to beat him, such licence is no defence, because it is against the peace. And see ante, 527, et sequ. as to the criminality of some games or sports

(z) 1 Hawk. P. C. c. 60. s. 23.; 1 Bac. Ab. Ass. & Batt. (C).

(a) 1 Hawk. P. C. c. 60. s. 23. and the numerous authorities there cited. 1 Bac. Ab. Ass. & Batt. (C).

(b) Leward v. Baseley, 1 Ld. Raym. 62. 1 Salk. 407. Bull. N. P. 18. (c) 1 Hawk. P. C. c. 60. s. 24.

"master: it rests on the relation between master and servant." (d) It is said, that a servant may not justify beating another in defence of his master's son, though he were commanded to do so by the master, because he is not a servant to the son; and that for the like reason a tenant may not beat another in defence of his landlord. (e) A wife may justify an assault in defence of her husband. (f)

It has been holden that a defendant may justify even a maihem, if done by him as an officer in the army, for disobeying orders; and that he may give in evidence the sentence of a council at war, upon a petition against him by the plaintiff; and that if, by the sentence, the petition is dismissed, it will be conclusive evidence in favour of the defendant. (g)

without ac

tual violence, there must be request to depart or desist, before

a

force is used.

It should be observed, with respect to an assault by a man on Where there a party endeavouring to dispossess him of his land, that where is a trespass the injury is a mere breach of a close, in contemplation of law, the defendant cannot justify a battery without a request to depart; but it is otherwise where any actual violence is committed, as it is lawful in such case to oppose force to force: therefore, if a person break down the gate, or come into a close vi et armis, the owner need not request him to be gone, but may lay hands on him immediately; for it is but returning violence with violence. (h) So if one come forcibly and take away another's goods, the owner may oppose him at once, for there is no time to make a request.(i) But, in general, unless there be violence in the trespass, a party should not, either in defence of his person, or his real or personal property, begin by striking the trespasser, but should request him to depart or desist; and, if that is refused, should gently lay his hands upon him in the first instance, and not proceed with greater force than is made necessary by resistance.(k) Thus, where a churchwarden justified taking off the hat of a person who wore it in church, at the time of divine service, the plea stated, that he first requested the plaintiff to be uncovered, and that the plaintiff refused. (1) And in all cases where the force used is justified, as not amounting to an assault, under the particular circumstances of the case, it must appear that it was not greater than was reasonably necessary to accomplish the lawful purpose intended to be effected.(m) Therefore, though an offer to strike the defendant, first made by the prose

(d) Tickel v. Read, Lofft 215.
(e) 1 Hawk. P. C. c. 60. s. 24.
(f) Leward v. Baseley, 1 Ld. Raym.

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62.
(g) Lane v. Degberg, 11 W. 3. per
Treby, C. J. Bull. N. P. 19.

(h) Green v. Goddard, 2 Salk. 641. In a case of this kind, however, it should seem that the violence must be considerable, and continuing, in order to justify the application of force by the owner, without some previous request to depart; at least, if the force applied be more than would be justified under a molliter manus imposuit: for in a case of assault and battery, where the defendant pleaded son as

VOL. I.

sault demesne, and the plaintiff replied
that he was possessed of a certain close,
and that the defendant broke the gate
and chased his horses in the close, and
that he, for the defending his posses-
sion, molliter insultum fecit upon the
defendant, the replication was ad-
judged to be bad: and that it should
have been molliter manus imposuit, as
the plaintiff could not justify an as-
sault in defence of his possession.
Leward v. Baseley, 1 Ld. Raym. 62.
(i) Green v. Goddard, ibid.

2 R

(k) Weaver v. Bush, 8 T. R. 78. 1
Selw. N. P. Ass. & Bat. 39, 40.

(7) Hawe v. Planner, 1 Saund. 13.
(m) 1 East. P. C. c. 8. s. 1. p. 406.

Indictment.

One indict

ment may be preferred for assaulting

two persons.

Indictment of two counts, one for a riot,

and the other for an assault, found by the grand jury a

true bill as to

the assault, and ignoramus as to the riot, holden good.

Plea.

Where the defendant has pleaded and entered into a recognizance

to appear, en

ter, and try his traverse, he cannot be

tried, without entering his traverse, under the gaol delivery. But he may withdraw his plea,

without entering his tra

cutor, is a sufficient assault by him to justify the defendant in striking, without waiting till the prosecutor had actually struck him first; yet even a prior assault will not justify a battery, if such battery be extreme; and it will be matter of evidence whether the retaliation by the defendant were excessive, and out of all proportion to the necessity or provocation received. (n)

The party injured may proceed against the defendant by action and indictment for the same assault: and the court in which the action is brought will not compel him to make his election to pursue either the 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.(o)

It appears to have been formerly holden that a person could not be prosecuted upon one indictment for assaulting two persons, each assault being a distinct offence. (p) But the case has been subsequently treated as one which was not well considered; and the court said, "Cannot the King call a man to account for a "breach of the peace, because he broke two heads instead of one?" (q)

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In a case where an indictment preferred before the grand jury consisted of two counts, one for a riot, the other for an assault, and the grand jury only found it a true bill as to the count for an assault, and indorsed ignoramus on the count for a riot, a motion was made on the part of the prosecutor to quash it, on the ground that the grand jury should have found the whole to have been a true bill, or have rejected the indictment altogether: but the court held, that as there were two distinct counts, the finding a true bill as to one count only, and rejecting the other, left the indictment, as to the count which the jury had affirmed, just as if there had originally been only that one count.(r)

Whatever is a legal justification or excuse for an assault or imprisonment, such as son assault demesne, the arrest of a felon, &c. may, upon an indictment, be given in evidence under the general issue.(s)

A case has been decided, relating to the course of proceeding, where a defendant indicted for an assault has entered into a reCognizance to appear, enter, and try his traverse. The defendant was in the first instance apprehended for an assault, carried before a magistrate, and admitted to bail, on the condition of his appearing at the ensuing assizes to answer such indictment as might be preferred against him; which condition he performed; and a bill of indictment being found against him at such assizes, he was arraigned, pleaded "Not Guilty," and entered into a recognizance to appear, enter, and try his traverse at the then next assizes. On the day before the opening of the commission for the next assizes, he surrendered himself to prison in discharge of his bail; and to avoid paying for the issue-book, the entry of his (n) Bull. N. P. 18. 1 East. P. C. c. 8. s. 1. p. 406.

(0) Jones v. Clay, 1 Bos. and Pul. 191. 1 Selw. N. P. Ass. & Bat. 33. note (2). 1 Hawk. P. C. c. 62. s. 4. 1 Bac. Ab. Ass. & Bat. (D).

1572. 2 Str. 870.

(q) Per Cur. in Rex v. Benfield and Saunders, 2 Burr. 984.

(r) Rex v. Fieldhouse, Cowp. 325. (8) 1 Hawk. P. C. c. 62. s. 3. 1 Bac. Ab. Ass. & Bat. (D). 1. East. P. C. (P) Rex v. Clendon, 2 Ld. Raym. c. 8. s. 1. p. 406, and c. 9. s. 1. p. 428.

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