charged upon the defendant; for if the assault proved to have been committed by the plaintiff is trifling, and altogether disproportioned to the assault committed by the defendant, and forms no excusable or justifiable cause for it, the plaintiff will be entitled to a verdict(a). Where, under a plea of son assault demesne, the defendant proved that the plaintiff got off his horse, and held up his stick, and offered to strike the defendant, and the latter thereupon gave him a beating, it was held that a moderate battery was, by reason of the provocation, justifiable, and that, if the plaintiff relied upon the fact of the defendant's having beaten him more violently than he ought to have done, the excessive beating should have been replied, and specially set forth on the record(b). If the plaintiff complains of having been struck with a stick by the defendant, the defendant may, under a plea of son assault demesne, show that the plaintiff first struck him with his fist(c).

If the defendant rests his defence upon a plea of the previous hearing and dismissal of the charge by magistrates (ante, p. 724), he must produce the certificate of the fact of the dismissal, signed by two justices, which will be primâ facie evidence of the dismissal of the complaint, without proof of the genuineness of the signatures of the magistrates who have signed it(d). If the defendant relies upou a conviction under the same statute, the record of the conviction, or an examined copy of it, must be produced(e). If the defendant relies upon some plea of justification or excuse (ante, pp. 726-730), he must prove so much of his plea as constitutes an answer to the assault to which it is pleaded. If he does that, it is enough, and he is not bound to prove the residue of his plea(f). If the plea of justification consists of two facts, each of which would, when separately pleaded, amount to a good defence, the plea of justification will be supported if one of these facts only be found by the jury(g).

When the defendant justifies in defence of his possession of realty or personalty, he must prove the fact of his possession at the time he

(a) Dean v. Taylor, 11 Exch. 68. Cockcroft v. Smith, 1 Salk. 641. Littledale, J., Reeve v. Taylor, 4 N. & M. 470. Scribner v. Beach, 4 Denio. 448. See Harrison v. Harrison, 43 Vt. 417. (b) Dale v. Wood, 7 Moore, 33. Penn v. Ward, 2 C. M. & R. 338. See Bennett v. Appleton, 25 Wend. 371; Fisher v. Bridges, 4 Blackf. 518; Dole v. Erskine, 35 N. H. 503; Philbrick v. Foster, 4 Ind. 442; Gailher v. Blowers, 11 Md. 536; Bartlett v. Churchill, 24 Vt. 218; Frederick v. Gilbert, 8 Barr. 454; Curtis v. Carson, 2 N. H. 539; Collier v. Moulton, 7 Johns. 109. (c) Blunt v. Beaumont, 2 Cr. M. & R. 412. Oakes v. Wood, 3 M. & W. 150. (d) 8 & 9 Vict. c. 113, s. 1; post, ch. 21. (e) Hartley v. Hindmarsh, L. R., 1 C. P. 553. (ƒ) Atkinson v Warne, 1 C. M. & R. 827. (g) Spilsbury v. Micklethwaite, 1 Taunt. 149.

committed the assault, and that the assault was of a defensive and not of an offensive character(h).

845 Damages recoverable." The court," observes Tindal, C.J., "never interferes with the discretion of the jury as to the amount of damages for an assault and false imprisonment, unless they are grossly excessive, or clearly founded upon a mistaken or improper view of the matter"(i). The circumstances of time and place as to when and where the assault was committed, and the degree of personal insult, must be considered in estimating the nature of the offence and the amount of damages. "It is a greater insult to be beaten upon the Royal Exchange than in a private place"(k). When the assault is accompanied by a false charge, affecting the honor, character, and position in society, of the plaintiff, the offence will, of course, be greatly aggravated, and the damages proportionably increased; and if the plaintiff has been

(h) Dean v. Hogg, 10 Bing. 349. See ante, p. 693.

(i) Edgell v. Francis, 1 Sc. N. R. 121. Huckle v. Money, 2 Wils. 206. In assessing the damages the jury may properly consider the effect which a finding of trivial damages may have in encouraging a disregard of the laws, and disturbance of the public peace. Beach v. Hancock, 7 Foster (N. H.), 223.

The jury are not confined to the pecuniary loss proven; but may take into consideration every circumstance of the act which injuriously affected the plaintiff, not only in his property but in his person, his peace of mind, and his individual happiness. Cox v. Vanderkleed, 21 Ind. 164. Taber v. Hutson, 5 Ind. 322.

If there were circumstances of outrage and insult attending the assault and battery which wound the feelings, and tend to lower the party injured in the estimation of society, the jury may consider these circumstances in awarding damages. Barnes v. Martin, 15 Wis. 240. See Dalton v. Beers, 38 Conn. 529.

And in all cases where the assault is wilful, vindictive damages may be given. Reeder v. Purdy, 48 Ill. 261. Whether the defendant is a natural person or a corporation. Atlantic & Great Western R. R. Co. v. Dunn, 19 Ohio St. 162. Goddard v. Grand Trunk R. R. Co., 57 Me. 202. But where the assault and battery is committed under the provocation of highly insulting language, vindictive damages should not be given unless in case of cruel and outrageous battery. Donnelly v. Harris, 41 Ill. 126.

If exemplary damages are claimed by the plaintiff the defendant should be allowed to show to the jury the true relations of the parties, in order that they may determine how far the act was wanton, malicious, vindictive or unprovoked, or how far extenuated by the conduct, declarations or provocations of the plaintiff. Prentiss v. Shaw, 56 Me. 427.

In estimating damages, the jury may also take into consideration the poverty of the plaintiff or the wealth of the defendant. Buckley v. Knapp, 48 Mo. 152. Pendleton v. Davis, 1 Jones' Law (N. C.), 98. Belknap v. Boston, etc., R. R Co., 49 N H. 358. But see Guengerech v. Smith, 34 Iowa, 348. And may give exemplary or punitive damages where the defendant has been previously convicted and fined, for the same act, in a criminal proceeding. Jefferson v. Adams, 4 Harring. 321. Corwin v. Walton, 18 Mo. 71. Hoadley v. Watson, 45 Vt. 289. Cook v. Ellis, 6 Hill, 466. But see Cherry v. McCall, 23 Ga. 193. If there has been a former trial of the same cause, in which no verdict was reached by reason of the sickness or death of one of the jurors, the jury may take into consideration the expense of such trial in estimating the damages. Noyes v. Ward, 19 Conn. 250.

Exemplary damages may also be allowed in an action for assault and battery and false imprisonment. Wiley v. Keokuk, 6 Kans. 95. Wiley v. Manatowah, 6 Kans. 111. See Marsh v. Smith, 49 Ill. 396.

A failure to allege or prove special damage will not limit the recovery to nominal damages. Joselyn v. McAllister, 22 Mich. 300.

(k) Tullidge v. Wade, 3 Wils. 18.

assaulted and imprisoned under a false charge of felony, where no felony has been committed (ante, p. 700), or where there was no reason able ground for suspecting and charging the plaintiff, exemplary damages, will be recovered.

Circumstances of provocation and excuse may be given in evidence, in mitigation of damages, so long as they do not amount to a justification, and could not be pleaded as such(). But if they constitute an answer to the action by way of justification for the assault, they must be pleaded, and cannot then be given in evidence in reduction or mitigation of the damages(m). Where, in an action for an assault, it was contended that the blow was unintentionally struck, the defendant intending to strike A, when he accidentally in the scuffle struck B, Bosanquet, J., told the jury that there could be no doubt but that, as the defendant struck the plaintiff, the plaintiff was entitled to a verdict, whether it was done intentionally or not, but that the intention was material in determining the amount of damages(n). If it be proved that the blow was unintentionally struck, and that an apology was immediately offered, the evidence would tend materially to reduce the amount of damages.

Where the plaintiff, in an action for an assault and false imprisonment, sought to make the defendant responsible for the consequences of a remand by the magistrate, it was held that he was liable only for the first imprisonment and taking before the magistrate, and not for the remand or any subsequent detention thereunder, they being the acts of the justice(o); but in an action for a malicious prosecution, the defendant will be liable for the injury resulting from a remand(p). Where a railway company removed a passenger from the train (without any unnecessary violence) under the mistaken impression that he had no ticket, and the passenger left a pair of race-glasses behind him, it was held he could not recover the value of them as part of the damages for the assault, although the court admitted it would have been otherwise had he lost any part of his property in a scuffle with the railway servants(q).

846 Damages, where there are several co-trespassers.—Where several persons have associated themselves together in the pursuit of a common

(1) Post, ch. 22, s. 1.

(m) Watson v. Christie, 2 B. & P. 224. Speck v. Phillips, 7 Dowl. 473. Lingford v. Lake, 3 H. &. N. 276.

(n) James v. Campbell, 5 C. & P. 372.

(0) Lock v. Ashton, 12 Q. B. 876.

(p) Post, ch. 13.

(g) Glover v. Lond. & S.-Western Rail. Co., L. R., 3 Q. B. 25.

object, and they all trespass upon the plaintiff's land in following out the common design, each is answerable for the whole of the damage done by all(r). And whenever two persons have so conducted themselves as to be liable to be jointly sued, each is responsible for the injury sustained by their common act. The true criterion of damage in such cases is the whole injury which the plaintiff has sustained from the joint act of all. Where, therefore, two persons have a joint purpose, and thereby make themselves joint-trespassers, and the one beats violently, and the other a little, the real injury is the aggregate of the injury received from both, and each is responsible for all the damage; but the malignant motive of one party cannot be made a ground of aggravation of damage against the other, who was altogether free from any improper motive(s).

847 Prospective damages. In all cases of serious assault, the jury should take into their consideration, in assessing the damages, the probable future injury that will result to the plaintiff from the act of violence perpetrated by the defendant, for the damages, when given, are taken to embrace all the injurious consequences of the wrongful act, unknown as well as known, which may arise hereafter, as well as those which have arisen, so that the right of action is satisfied by one recovery. Thus, where the plaintiff had received a blow on the head, and sustained little apparent injury, and recovered small damages, and afterwards, and in consequence of the blow, a portion of his skull came away, and it then appeared that the skull had been fractured, and he then brought a second action, which was attempted to be supported on the ground that the former recovery was for a mere battery, and this for maihem, it was held that no action lay, for there was but one blow, and that was the cause of action in both suits, and not the consequences. And the distinction was pointed out between this case and one of continuing nuisance, where each continuance was a fresh nuisance(t). No fresh action, therefore, arises by reason of subsequent new damage resulting from the wrongful act, if the act itself were actionable; for, if the action were brought, all the damages which he ever could recover for that injury could be recovered by the plaintiff in that action, if he succeeded(u).

848 Special damages in actions for false imprisonment.-Money paid by

(r) Hume v. Oldacre, ante, p. 385.

(8) Clark v. Newsam, 1 Exch. 140. That the jury may sever damages and apportion them in an action of trespass for assault and battery, against several defendants, see Bevin v. Lin. guard, 1 Brev. 503.

(t) Fetter v. Beal, 1 Ld. Raym. 339, 92.

(u) Coleridge, J., Bonomi v. Backhouse, 27 Law J., Q. B. 390.

the attorney of the plaintiff to procure the release of the plaintiff from an unlawful imprisonment, is recoverable as part of the damages naturally and directly resulting from the wrongful act, provided the plaintiff claims them in his declaration, "for a man may say that he has been forced to pay that which another, who is his agent, has been forced to pay for him "(x). The allegation that the plaintiff has been forced to pay, etc., is a material allegation, and proof of actual payment is necessary to support it. Every expense that the plaintiff necessarily incurs in order to restore himself to a complete state of freedom from imprisonment is recoverable as part of the damages, if the plaintiff has claimed them in his declaration. Where a plaintiff, by being bailed, obtained only an imperfect release, being in the hands and at the mercy of persons who might at any time render him. back to gaol, it was held that the expense of removing himself from that position was only one of the steps necessary for completing his discharge from the original imprisonment, and that, if it were necessary for the plaintiff to set aside an inquisition in order to restore himself to a complete state of freedom, he was entitled to recover the expense thereof, as part of the damages of the original wrongful act(y). 849 Evidence in mitigation of damages.-In an action for false imprisonment in giving the plaintiff in charge to a police-officer, it may be shown, in mitigation of damages, that the plaintiff had for several days annoyed and insulted the defendant, by following him about the streets, and telling him to pay his debts(z). But all facts and circum

(x) Pritchet v. Boevey, 1 Cr. & M. 778.

(y) Foxall v. Barnett, 2 Ell. & Bl. 298; 23 Law J., Q. B. 7.

(2) Thomas v. Powell, 7 C. & P. 807; and see post, ch. 22. It is well settled that no words of provocation will justify an assault, athough they may be a ground for the reduction of damages. Cushman v. Ryan, 1 Story, 91. Ireland v. Elliott, 5 Clarke (Iowa), 478.

But to entitle the defendant to give evidence of provocation in mitigation of damages, the provocation must be so recent as to raise the presumption that the assault was committed under the immediate influence of the feelings and passions thereby excited. Lee v. Woolsey, 19 Johns. 319. Jacaway v. Dula, 7 Yerg. 82. Fullerton v. Warrick, 3 Blackf. 219. Matthews v. Terry, 10 Conn. 455. Avery v. Ray, 1 Mass. 12. Guernsey v. Morse, 2 Root, 252. Ellsworth v. Thompson, 13 Wend. 658.

Thus evidence of the use of opprobrious language by the plaintiff to the female relatives of the defendant a day or two previous to the assault, is inadmissible in mitigation of damages. Collins v. Todd, 17 Mo. 537. See Barry v. Inglis, 1 Taylor, 121; Rochester v. Anderson, 1 Bibb, 428.

But while, as a general rule, a remote provocation cannot be given in evidence for the purpose of mitigating damages, yet, where the acts or words constituting the provocation were portion of a series of provocations frequently repeated and continued down to the time of the assault, they may be proven. Stetlar v. Nellis, 60 Barb. (N. Y.) 524. Dolan v. Fagan, 63 Barb. (N. Y.) 73.

The fact that the parties to an assault fought by consent may be considered in mitigation of damages. Adams v. Waggoner, 33 Ind. 531.

The bad character of the plaintiff cannot be given in evidence to mitigate the damages in an action for assault and battery. Corning v. Corning, 6 N. Y. 97.