790 Assault and 'battery.-A battery, as distinguished from an assault, is where the person of a man is actually struck or touched in a violent, angry, rude, or insolent manner(n). If a man is violently jostled out of the way or spat upon(o), or has water, stones, or dirt rudely thrown upon him(p), or has his hat insolently knocked off, or his hair forcibly cut(q), or his horse has been struck so that it ran away and threw him to the ground(r), the person guilty of the violence is liable to an action for an assault and battery. "But every laying on of hands is not a battery. The party's intention must be considered, for people will sometimes, by way of joke or in friendship, clap a man on the back, and it would be ridiculous to say that every such case constitutes a battery "(s). A touch given by a constable's staff in order to engage the attention of a person is not a battery(t). 791 Mayhem and wounding.-When the assault has been carried to the extent of maiming or crippling, or of wounding a person, it of course becomes of a much more serious character than a common assault, and the person injured will recover heavy damages, unless the maiming or wounding amounts to felony, or can be justified or excused in the manner presently mentioned. The old word "mayme" or "mayhem," derived from the French word mayhemer or mehaigner, was used to signify any hurt done to a man's body, whereby he was rendered less able in fighting either to defend himself or annoy his adversary; such as the cutting off, disabling, or weakening a hand or finger, striking out an eye or foretooth, breaking a bone, or injuring the head, or wounding a sinew, etc.(u).

(n) Rawlings v. Till, 3 M. & W. 28. An assault and battery is a fighting against the will of the party assailed. Duncan v. Commonwealth, 6 Dana, 295.

By the Revised Statutes of Maine, Chapter 118, § 28, an assault and battery is thus defined: "Whoever unlawfully attempts to strike, hit, touch or do any violence to another, however small, in a wanton, wilful, angry or insulting manner, having an intention and existing abil ity to do some violence to such person, shall be deemed guilty of an assault; and if such attempt is carried into effect, shall be deemed guilty of an assault and battery."

Where one after using threatening language to another, places his open hand upon the breast of the latter and pushes him back so that he falls, this is an assault and battery. State v. Baker, 65 N. C. 332. Taking hold of one's coat in an angry, rude or insolent manner or with a view to hostility, and detaining the wearer, is an assault and battery. United States v. Ortega, 4 Wash. C. C. 534. Whatever is attached to the person partakes of the inviolability of the person. Thus a blow on the skirt of a coat on the person of another is an assault and battery, as is also a blow upon a cane in the hand of another. See Respublica v. DeLongchamps, 1 Dall. 114; State v. Davis, 1 Hill, 46.

(0) Reg. v. Cotesworth, 6 Mod. 172.

(p) Pursell v. Horn, 8 Ad. & E. 604; 4 N. & P. 564.

(g) Forde v. Skinner, 4 C. & P. 239.

(r) Dodwell v. Burford, 1 Mod. 24; 1 Sid. 433.

(8) Ld. Hardwicke, Williams v. Jones, Hard. 301.

(t) Wiffin v. Kincard, 2 B. & P. N. R. 472. Coward v. Baddeley, ante, p. 691.

(u) Bac. Abr. MAIHEM. Beames's Glanv. p. 350. Bract. lib. 3, tr. 2.

792 Assault and battery in self-defence.-If the assault is in self-defence, and it can be shown that the plaintiff was the aggressor, and assaulted the defendant in the first instance, the action will be answered by a plea of son assault demesne, which is a plea alleging that the plaintiff first assaulted the defendant, who thereupon necessarily committed the alleged assault in his own defence(v). If one man strikes another, and the person struck, in the heat of anger, and on the impulse of the moment, returns the blow with a stick or bludgeon, the battery is excusable(); but he has no right to revenge himself, and if, when all the danger is past, he strikes a blow not necessary for his defence, he commits an assault and battery(x). If a man strike another who does not immediately after resent it, but takes his opportunity, and then some time after falls upon him and beats him, in this case son assault is no good plea, and the second assault cannot be justified (y). 793 Assault in defence of the possession of a house, or close, or of property(z). -An assault and battery may be justified in defence of the possession of a house, or a close, or a vestry-room, or pulpit(a), or in defence of the possession of goods and chattels by the person entitled to the possession and use of them(b). If one man enters the house of another with force and violence, the owner of the house may justify turning him out, without a previous request to depart(c); but if he enters quietly, he must be requested to retire before hands can be lawfully laid upon him to turn him out. If he will not depart after having been requested so to do, the owner may use as much force as is necessary; and if the intruder resists the attempts of the owner of the house to turn him out, he is guilty of an assault upon the latter; and if a policeman standing by sees the resistance and witnesses the assault, he is justified in taking the intruder into custody. A policeman may also, with the authority and at the request of the master of the house,

(v) See 15 & 16 Vict. c. 76, sched. B. (w) Oakes v. Wood, 3 M. & W. 150.

(z) Coleridge, J., Reg. v. Driscoll, Car. & M. 214. It is a settled doctrine of the law that if one be attacked, he may defend himself, using no more force than may be necessary to repel the attack, but should he go beyond this, and use more force than necessary, he himself becomes a trespasser, and his assailant, though first in the wrong, may maintain an action against him for damages. Adams v. Waggoner, 33 Ind. 531. Fisher v. Bridges, 4 Black f. 518. Philbrick v. Foster, 4 Ind. 442. Dole v. Erskine, 35 N. H. 503. See State v. Gibson, 10 Ired. 214; Elliott v. Brown, 2 Wend. 497; Hazel v. Clark, 3 Harring. 22. (y) Holt, C.J., Cockcroft v. Smith, 11 Mod. 43.

(z) As to equitable defence in such a case, see Allen v. Walker, L. R., 5 Exch. 187.

(a) Jackson v. Courtenay, 8 Ell. & Bl. 8; 27 Law J., Q. B. 87; Bro. Abr. TRESPASS, pl. 128. See Harrington v. People, 6 Barb, 607.

(b) Roberts v. Taylor, 1 C. B. 147. Scribner v. Beach, 4 Denio, 448.

(c) Weaver v. Bush, 8 T. R. 78. Scribner v. Beach, 4 Denio, 448. M'Ilvoy v. Cockran, 2 Marsh. 274. Robinson v. Hawkins, 4 Monr. 136.

himself proceed to turn out the intruder; but he is not bound to do so unless he pleases, as it is no part of a policeman's duty to do so(d). If a shopkeeper puts goods into a shop window, ticketed at a certain price, he is not bound to sell them at the price marked; and if a customer insists upon having the goods, and refuses to leave the shop after having been requested so to do by the shopkeeper or his servants, he may be turned out(e). If a man comes into a public house, and conducts himself in a disorderly manner, and the landlord requests him to go out, and he will not, the landlord may turn him out, though the disturbance does not amount to a breach of the peace. To do this, the landlord may lay hands on him, using no more violence than is necessary to turn him out. If the person resists, and lays hands on the landlord, that is an unjustifiable assault upon the landlord(ƒ).

794 Assault in resistance of a forcible entry, or to prevent a seizure of chattels.-If one person enters another's house or ground with force and violence, the possessor or occupier of the house may oppose force by force, and turn the person out without a previous request to him to depart(g), unless the person making the forcible entry is a constable or officer acting under competent legal authority; for there is a manifest distinction between endeavoring to turn a man out of a house or close into which he has previously entered quietly, and resisting a forcible attempt to enter(h). The same rule prevails with regard to a forcible seizure of goods and chattels, for wherever force is used to gain possession of a thing, "the force may be opposed by force without more ado "(i), although the person using the force has a right to the posseshe seeks to acquire.

795 Resistance to a forcible entry by a landlord.-A forcible entry is expressly prohibited by the 5 Rich. 2, c. 7, even where entry is given by law. And it is laid down, that if a man enters peaceably into a house but turns the occupant out of possession by force, or by threats frightens him out of possession, this is a forcible entry(j). If a tenant who holds over after the expiration of his lease is de facto in possession

(d) Wheeler v. Whiting, 9 C. & P. 265.
(e) Timothy v. Simpson, 6 C. & P. 500.

(ƒ) Howell v. Jackson. 6 C. & P. 725. Webster v. Watts, 11 Q. B. 311; 17 Law J., Q. B. 73. See Hannah v. Rust, 21 Wend. 149.

(g) Tulley v. Reed, 1 C. & P. 6.

(h) Polkinghorn v. Wright, 8 Q. B. 206.

(i) Green v. Goddard, 2 Salk. 641; Owen, 150. Actual possession will justify violence in defence of it; but a right of possession will not justify force in taking it. Parsons v. Brown, 15 Barb. 590.

(j) Bosanquet, J., Newton v. Harland, 1 Sc. N. R. 474; 1 M. & Gr. 660; Bac. Abr. FORCIBLE ENTRY.

of the house; if he is sitting in his drawing-room, or sleeping in his bed, and the landlord walks in at the front deor, the latter cannot be said to be in possession of the house any more than the visitor who comes to make a morning call; and if he lays hands on the tenant and turns him out, he cannot truly say that this was done in defence of his (the landlord's) possession of the house, such possession not having been gained until after the exercise of the act of force constituting the assault(). But if the tenant, or any other person who has originally lawfully came into possession, voluntarily leaves the premises vacant, the landlord or lawful owner may at once enter, and take and keep possession. The previous possessor is then lawfully dispossessed, and if he re-enters he commits a trespass, and may be turned out of the house or off the land(k).

796 Assaults in preservation of the public peace.-Any person who witnesses an affray may, during the continuance of the affray, and for the purpose of putting a stop to it, lay hands on the affrayers(). If he in the midst of the affray, and forcibly interferes as a peacemaker for the purpose of separating the combatants and preventing further violence he is not guilty of a trespass, unless he uses more violence than is reasonably necessary for the purpose(m).

comes up

797 Battery and wounding in self-defence, or in defence of the possession of tenements or chattels.-When a person has been assaulted in such a way as to endanger his life, he is of course justified in maiming and wounding the attacking party; and if he has been violently assaulted, or assaulted in such a way as to put him into bodily fear, the mayhem or Wounding, if inflicted in self-defence, is held excusable. "A man cannot justify a maim for every assault, as, if A strikes B, B cannot justify the drawing his sword and cutting off his hand "(n). “If A strike B, and B strike again, and they close immediately, and in the scuffle B maihems A, this maihem is excusable; but if, upon a little blow given by A to B, B gives him a blow that maihems him, this maihem is not excusable "(o).

Cockcroft in a scuffle ran his finger towards Smith's eye, who bit

a joint off from the plaintiff's finger: the question was, whether this

The doctrine of the text seems to be in conflict with the views of the court in Stearns

& Wife v. Sampson, 59 Me. 568.

Brown v. Dawson, 12 Ad. & E. 629.

Taylor . Cole, 3 T. R. 295.

Taunton v. Costar, 7

T. R. 431. Butcher v. Butcher, 7 B. & C. 402. Sage v. Harpending, 49 Barb. (N. Y.) 166.

Noden v. Johnson, 16 Q. B. 218.

(m) Timothy v. Simpson, 6 C. & P. 500.

(n) Per Cur. Cook v. Beal, 1 Ld. Raym. 177; 3 Salk. 115.

(0) Cockcroft v. Smith, 2 Salk. 642.

was a proper defence for the defendant to justify in an action of mayhem; and Holt, C.J., said that a man ought not, in the case of a small assault, to give a violent or unsuitable return, but in such a case plead what is necessary for a man's defence, and not who struck first, for hitting a man a little blow with a little stick on the shoulder is not a reason for him to draw a sword, and cut and hew the other "(p). To justify a battery, the defendant must show that there was an unlawful resistance on the part of the plaintiff to the lawful acts of the defendant. If the plaintiff complains of repeated blows, of his having been knocked down and wounded, or of his having had his leg broken, it is no answer to say that the plaintiff intruded himself into the defendant's dwelling-house, and made a disturbance, and would not go out, and therefore the defendant knocked him down, or cut his head open with a truncheon, or broke his leg, as no man is justified in resorting to such severe measures to expel an intruder, unless resistance has been offered; in which case the plea of justification must allege the fact of the resistance, and it must be shown that the force used was no more than was reasonably necessary to overcome such resistance().

In an action of trespass it was alleged that the defendant overturned a ladder upon which the plaintiff was standing, and threw the plaintiff from it upon the ground, and the defendant pleaded that he was possessed of a house and garden, and that the plaintiff erected a ladder in the garden, and went up the ladder in order to nail a board to the house of the plaintiff; that the defendant forbade the plaintiff so to do, and desired him to come down; and that, upon the plaintiff's persisting in nailing the board, he gently shook the ladder, and gently overturned it, and gently threw the plaintiff from it upon the ground, doing as little damage as possible to the plaintiff, and on demurrer to the plea it was held that the overturning and throwing down of the ladder, however gently, with the plaintiff upon it, was unjustifiable, and the plea bad(r).

(p) Cockcroft v. Smith, 11 Mod. 43.

(q) Gregory v. Hill, 8 T. R. 299.
(r) Collins v. Renison, Say. 138.

Oakes v. Wood, 2 M. & W. 791.