Justification of Battery-New Assignment. when, &c., to wit, on the 25th day of September, a writ issued out of the King's Bench to the sheriff to arrest the plaintiff, whereupon the sheriff made and directed a warrant to the defendant to arrest the plaintiff according to the said writ, whereby the defendant, on the 20th of October in the 20th year aforesaid, arrested the plaintiff. And the defendant further said, that the said plaintiff, after the arrest, made an assault on the defendant, and he defended himself; so the damage, if any be had, was of his own assault, and traversed (2), without this, whether the arrest shall be considered as a justification of the battery or not. For if a bailiff, &c., do more than barely arrest a person, if he beat him, or otherwise ill-treat him after the arrest, without any resistance, or attempt made to rescue himself, he is subject to an action, and if he justify the battery by an arrest under process, the plaintiff may new assign, which will bring it to much the same thing; 21 Hen. 7, 21, and GREENE V. JONES. pl. 5. S. C. cited 2 Lutw. 930. Patrick v. Johnson; and in the law of Nisi Prius, it is said that an officer, by way of molliter manus imposuit, may justify the beating, without shewing any resistance or attempt to rescue, and cites Titley v. Foxhall, C. B. T. T. 31 Geo. 2. Bull, N. P. 19. See Willes' Rep. 14. Rowe v. Tutt, 690. Titley v. Foxhall (a). (2) Instead of traversing the time mentioned in the decla (a) See 8 T. R. 299. Gregory Bush. It seems clear that the v. Hill, that a plea justifying plea justifying defendant cannot in any case jusbeating and wounding, by way tify an actual beating and woundof molliter manus imposuit, to ing, unless he shews in his plea turn the plaintiff out of the de- that force was used or attempted fendant's house, is bad on de- on the part of the plaintiff. But murrer, unless it shew that the still he may justify the beating, plaintiff made resistance that is to say, what in law amounts assaulted the defendant. to a battery, by way of molliter further 3 M. & W. 150. Oakes manus; for it was held in 6 T. R. v. Wood.] But where the de- 562. 562. Smith v. Edge, that a jusfendant pleads that the plaintiff tification of "assaulting, seizing, attempted forcibly to enter his, "and grasping the plaintiff," in the defendant's, house, he may order to turn him out of a vestryjustify beating and wounding the room, amounted to a justification plaintiff in resistance of this at- of a battery within the meaning tempt. 8 T. R. 78. Weaver v. of 22 & 23 Car. 2, c. 9, as to costs. [Sce Virtute cujus, when traversable. that the defendant is guilty at any time before or after the said 20th of October. Upon which plea the plaintiff demurred specially, and shewed for cause that it was not alleged in the plea that the writ was delivered to the sheriff before the arrest. And it was argued by Saunders for the plaintiff, that the defendant ought to have averred expressly that the said writ was delivered to the sheriff before the arrest; for it is a matter traversable; and the plaintiff may reply that the defendant made the arrest of his own wrong, and traverse, without this, that any writ was delivered to the sheriff before the arrest made. And if the matter were so (as in truth it was), the plaintiff is now precluded from taking that issue by the bad pleading of the defendant; for he has only shewn that a writ was sued out, per quod the sheriff made his warrant; so he has not alleged anything traversable, except the per quod, upon which no issue can be taken (3). And it is out of all con ration as was done in this case, the practice now is to aver that the matter of the justification is the same trespass which the plaintiff complains of, without a traverse. Such an averment is equivalent to a denial or traverse, that the trespass was committed at any other time than what is stated in the plea. Therefore another denial of the same thing would be superfluous; Cro. Car. 228. Tyler v. Wall. See Have v. Planner, ante, p. 11, n. (2), So also in 7 Taunt. 689. Johnson v. Northwood. 1 B. Moore, 420. S. C., a justification of " ill"treating" by way of molliter manus was held to admit a battery. Yet in neither of these cases was it attempted to be argued, that the pleas were bad on account of their justifying a and the authorities there cited, and 2 Saund., note to Mellor v. Walker (b). (3) It seems to have been also held by the court in this case, that the per quod was not traversable, though neither Saunders nor Leving take any notice of this point. For in Beale v. Simpson, 1 Ld. Raym. 410, 412, Treby, C.J., said, "the case of Green v. "Jones is in point to shew that a per quod, or which is the same Delivery of Writ to Sheriff-New Assignment. troversy, that if the sheriff makes a warrant to arrest a man, and the bailiff arrests him accordingly, and this before any writ delivered to the sheriff, it is a trespass, and the party arrested may maintain an action of trespass and false imprisonment, although a writ be delivered afterwards (4). Levinz, for the defendant, argued that all the precedents are as this is (5). And he further said that the plaintiff should have replied that this arrest was before the delivery of the writ. And of this opinion was the court; namely, that it shall be intended that the writ was delivered to the sheriff before the arrest, and before the making of the warrant, and that the GREENE 2'. JONES. writ comes to his hands, it is lawful; and that the precedents "are both ways, as Dr. Bonham's case, 8 Rep. and the other cases "cited." But the accuracy of this report seems very questionable. (5) The precedents seem to be both ways. The following ones are agreeable to this: 2 Brown, 134. Lib. Plac. 302, 308, 315, 316, 343, 344, 366, 367, 384. In other precedents the delivery of the writ or the warrant is alleged to have been before the arrest, such as 2 Brown, 146. Clift. 153, 154. Lib. Plac. 309, 312, 370, 394. And it seems to be the present practice so to allege it. Q. B. 17. Andrews v. Marris. 1 G. & D. 268. S. C. If the plaintiff replies that the writ was set aside, he must shew that it was for irregularity. 1 Dav. & M. 50. Prentice v. Harrison. 4 Q. B. 852. 1 C. B. 183. Rankin v. Where the defendant justifies GREENE v. JONES. Delivery of Writ to Sheriff. plaintiff should have replied the contrary specially, if it had not been true (6). (6) This case is cited and recognised in 2 Lutw. 1287. Redman v. Idle. If a defendant justifies an assault and battery, &c., by virtue of a writ which was not sued out until after the making of the warrant and the arrest, the present practice seems to be to reply that fact by way of new assignment. With respect to which it appears to be a rule, that where the defendant has committed several trespasses either upon the person, goods, or land of another, some of which are justifiable and others not, and the action is brought for those trespasses which are not justifiable, but the defendant by his plea answers those only which are, the plaintiff by his replication should make a new assignment. Here the assault, &c., committed after the issuing and delivery of the writ is justifiable, but that which was committed before is not. The action was brought for the assault, &c., before the issuing and delivery of the writ, but the defendant has answered that only which was committed after; therefore, according to this rule, the plaintiff ought to make a new assignment. the same reason, where the plaintiff was properly arrested at first, but is detained after he has been duly discharged out of the defendant's custody by the direction of For the plaintiff in the original suit, if to an action of assault, &c., the defendant justifies under the writ in the original suit, the plaintiff by his replication should make a new assignment. 1 Ld. Raym. 465. See 5 Q. B. 395. Magnay v. Burt. Per cur. Accord. In 2 Wils. 4. Scott v. Dixon, it was held, upon a general demurrer, that the plaintiff, in a case like the present, ought by his replication to have made a new assignment, and not to have concluded with praying judgment and his damages. In that case the defendant justified under a capias ad respondendum: the plaintiff replied, that the defendant released him from the arrest, and afterwards arrested him again, and because the defendant acknowledged the trespass, prayed judgment. It is true the defendant acknowledged the trespass, but had fully justified it by his plea, which he could not do without acknowledging the trespass; consequently, if the defendant had committed another trespass upon the plaintiff besides that which was justified, the plaintiff should have set it forth by way of new assignment. Hence it appears that the plaintiff cannot new assign unless there have been two assaults, &c., at least, committed upon him; for the new assignment is an acknowledgment New Assignment. by the plaintiff that the defendant has justified one assault, &c. (c). In these cases, however, a new assignment is only necessary where there is but one count in the declaration. For if there be as many counts as there were assaults, &c., and some of them cannot be justified, the plaintiff may prove those without a new assignment, because as to them the defendant will be obliged to plead not guilty. Bull. N. P. 17. The use, therefore, of inserting several counts in the declaration in actions of assault, &c., is to avoid the prolixity of making a new assignment. And indeed it is often injudicious to make a new assignment in these (c) [The effect, however, of the new assignment is not to amount to an admission of the facts stated in the plea, but to say that that is not the cause for which the plaintiff brought his action. (See 1 Mann. & Gr. 710. Brancker v. Molyneux. 1 Scott, N. R. 553. S. C.) It only admits another trespass, all inquiry as to which the plaintiff wholly abandons. Therefore the facts stated in the plea previous to the new assignment are not admitted so as to enable the defendant to make use of them, as admitted facts, in proof of any of the issues ultimately joined. 2 M. & W. 349. Norman v. Wescombe. 16 M. & W. are equal to the number of assaults, &c., as where, for instance, there have been two assaults, &c., and there are two counts, and the defendant pleads the general issue to the whole declaration, and a justification to one of the counts, the plaintiff had better put the justification in issue, and in case the defendant proves it, give evidence of the second assault upon the second count, than make a new assignment. For if the plaintiff fails in the proof of the allegation in the new assigment, he cannot afterwards have recourse to the second count; because by the new assignment he acknowledges that one of the assaults, &c., is justified, and has therefore abandoned one count, and relies 6 289. Robertson v. Gantlett. Q. B. 289, 377. Aldred v. Constable, per Patteson, J. 5 Q. B. 765. Pitcher v. King, per Patteson, J. Still, as the effect of the new assignment is to withdraw the facts averred in the plea from consideration as the subject of the action, the plaintiff is precluded from complaining of them; and the grounds on which he can claim damages are to be sought exclusively in the explanation of the declaration contained in the new assignment. 6 M. & W. 174. Dand v. Kingscote. 5 Bing. N. C. 550. Wilmhurst v. Bowker. 7 Scott, 561. S. C.] |