letters written to her by the defendant are evidence against him; but the wife's letters to the defendant are not evidence for him. In a case where the plaintiff and his wife were servants, and necessarily living apart in different families, Lord Kenyon, C. J., was of opinion, that letters written by the wife to her husband, before any suspicion of the adultery, might be read as evidence of the connubial affection which subsisted between the plaintiff and his wife, observing, at the same time, that before he admitted the letters to be read, he should require strict proof when, and under what circumstances, they were written, in order to show that at this time there was not any suspicion of misconduct in the wife (i); and in Willis v. Bernard, 8 Bing. 376, the letter of the wife to a third person was admitted, to show the state of the wife's feelings at the time it was written, although it contained a statement of facts, which could not with propriety be submitted as evidence to a jury; on which, however, the judge cautioned the jury, telling them that the letter was not evidence of those facts. In Winter v. Wroot, 1 M. & Rob. 404, Lyndhurst, C. B., permitted a witness to be asked generally, whether the wife made complaints of the manner in which her husband treated her.

In Hoare v. Allen (k), a witness was called by the husband to prove the representation made by the wife to him of the place to which she was going previously to her elopement, in order to remove all suspicion of connivance on the part of the husband. The Court of King's Bench were of opinion that this evidence, being part of the res gesta, was therefore admissible.

Now, in all cases in which, on the petition of a husband for a divorce, the alleged adulterer is made a co-respondent, or in which, on the petition of a wife, the person with whom the husband is alleged to have committed adultery is made a respondent," it shall be lawful for the court, after the close of the evidence on the part of the petitioner, to direct such co-respondent or respondent to be dismissed from the suit, if it shall think there is not sufficient evidence against him or her" (7).

IV. Of the Damages.—Costs.

The damages given by the jury in the action of crim. con. were, in general, proportioned to the degree of the injury. Circumstances of aggravation of the injury, and which might therefore operate as an inducement with the jury to give large damages, were, the plaintiff's having lived happily with his wife before her

(i) Edwards v. Crock, 4 Esp. N. P. C. 39; Kenyon, C. J., Trelawney v. Coleman, 1 B. & A. 90, S. P.; and 2 Stark. 191. But in this case the husband and wife

were not servants.

(k) Hoare v. Allen, 3 Esp. N. P. C. 276. (1) 21 & 22 Vict. c. 108, s. 11.

connection with the defendant; the unblemished character and antecedent virtuous behaviour of the wife; a provision having been made for the children of the marriage by settlement or otherwise; and other similar topics, which the extraordinary circumstances of the individual case might furnish (m). Proof was frequently adduced of the defendant being a man of fortune, by calling his banker, or producing a settlement, under which he was entitled to any estate real or personal. But in James v. Biddington, 6 C. & P. 589, Alderson, J., rejected evidence of this description, observing, that the amount of the defendant's property was not a question in the cause.

Circumstances of extenuation, on the part of the defendant, and which might tend to the mitigation of the damages, were the plaintiff's ill usage or unkind treatment of his wife; evidence of his intolerable ill temper, of his having turned his wife out of his house, and refused to maintain her, &c. previously to the adulterous intercourse (n); gross negligence or inattention of the plaintiff to his wife's conduct, with respect to the defendant (o); the wanton manners of the wife, or first advances made by her to the defendant (p); a prior elopement of the wife and adulterous intercourse with another person, or having had a bastard before marriage (q); because by bringing this action the husband put the general behaviour of the wife in issue. So letters written by the wife to the defendant before his connection with her, soliciting a criminal intercourse, &c. might be given in evidence (r). But the defendant was not permitted to prove acts of misconduct of the wife subsequent to the commission of the act complained of in the action (s).

In a case (said to have been unprecedented) where the wife was dead before the trial of the action, Coleridge, J., told the jury that they must award damages for the loss of the society of the wife, &c. down to the time of the death only (t).

It has been supposed that in this action a new trial could not be granted for excessive damages (u); but where it appeared to the court, from the amount of the damages given, as compared with the facts of the case laid before the jury, that the jury must have acted under the influence, either of undue motives or some gross or misconception on the subject, the question was submitted to the consideration of a second jury (x). So if the verdict were very much against the weight of evidence, the court would

(m) Bull. N. P. 27. (n) Ibid.

(0) Per Buller, J., in Duberley v. Gunning, 4 T. R. 657.

(p) Per Lord Ellenborough, C. J., in Gardiner v. Jadis, March 2, 1805, London Sittings.

(9) Roberts v. Malston, Hereford, 1745, per Willes, C. J., Gilb. Evid. 113, ed. 1761;

Bull. N. P. 296, S. C.

(r) Per Lord Kenyon, C. J., Elsam v. Fawcett, 2 Esp. N. P. C. 562. (s) Ibid.

(t) Wilton v. Webster, M.D., 7 C. & P.

198.

(u) See Wilford v. Berkeley, 1 Burr. 609; Duberley v. Gunning, 4 T. R. 651. (x) Chambers v. Caulfield, 6 East, 256.

grant a new trial on payment of costs (y). With respect to damages, however, the court never interfered, unless they were very excessive, or a strong case was made out to show that the jury had taken a perverted view of the matter (z).

Upon a petition containing a claim for damages against the adulterer under the 20 & 21 Vict. c. 85, the court has power to direct in what manner the damages given by the jury shall be paid and applied, and to direct that the whole or any part thereof shall be settled for the benefit of the children (if any) of the marriage, or as a provision for the maintenance of the wife (a).

Costs. By sect. 34 of the 20 & 21 Vict. c. 85, "whenever in any petition presented by a husband the alleged adulterer shall have been made a co-respondent, and the adultery shall have been established, it shall be lawful for the court to order the adulterer to pay the whole or any part of the costs of the proceedings;" and by sect. 51, it is further enacted, that "the court on the hearing of any suit, proceeding or petition under this act, and the house of lords on any appeal under this act, may make such order as to costs as to such court or to such house respectively may seem just: provided always, that there shall be no appeal on the subject of costs only."

(y) Mellin v. Taylor, Bingh. N. C. 109; 8 Sc. 513.

(z) Per Tindal, C. J., Edgell v. Francis,

1 Man. & Gr. 225; 1 Scott, N. R. 118. N. The action was for false imprisonment. (a) Sect. 33, ante, p. 8.

CHAPTER III.

OF ASSAULT AND BATTERY.

I. Of the Nature of an Assault and Battery, and in what
Cases an Action may be maintained,

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Justification in Defence of Person
Justification in Defence of Possession

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Justification by Officers executing Process
Other Justifications

Local and Transitory Justifications
Replication

IV. Verdict and Judgment,

V. Costs-Certificate under 3 & 4 Vict. c. 24,

I. Of the Nature of an Assault and Battery, and in what Cases an Action may be maintained.

An assault is an attempt, with force or violence, to do a corporal injury to another, against his will (a), as by holding up a fist in a menacing manner (b); striking at another with a cane or stick, though the party striking misses his aim; drawing a sword or bayonet; throwing a bottle or glass with intent to wound or strike; presenting a gun at a person who is within the distance to which the gun will carry; pointing a pitchfork at a person who is within reach (c); or by any other similar act, accompanied with such circumstances as denote at the time an intention (d), coupled with a present ability (e), of using actual violence against the person of another, as by defendant and his servants surrounding the plaintiff, tucking up their sleeves and threatening to break his neck if he did not leave their shop. Read v. Coker, 13 C. B. 850; 22 L. J., C. P. 201. Whether the act shall amount to an assault

(a) Christopherson v. Bare, 11 Q. B. 473; 17 L. J., Q. B. 109.

(b) Finch's Law, Bk. 3, c. 9; 1 Hawk. P. C. c. 62, s. 1.

(c) Genner v. Sparks, 6 Mod. 173, 174, and Salk. 79.

(d) Alderson v. Waistell, 1 C. & K. 358, per Rolfe, B.

(e) See Stephens v. Myers, 4 C. & P. 349, Tindal, C. J.; R. v. St. George, 9 C. & P. 492.

must in every case be collected from the intention. Trespass for assault: Plea, son assault demesne. Replication, de injuria. The defendant and another person were fighting, and the plaintiff came and took hold of the defendant by the collar, in order to separate the combatants, whereupon the defendant beat the plaintiff. The plaintiff's counsel offering to enter into this evidence, it was objected on the other side that the plaintiff ought to have replied this matter specially; but Legge, Baron, overruled the objection, observing that the evidence was not offered by way of justification, but for the purpose of showing that there was not any assault, for it was the quo animo which constituted an assault, which was matter to be left to a jury. Griffin v. Parsons, Gloucester Lent Assizes, 1754, MS., cited arg. in Hall v. Fearnly, 3 Q. B. 920. "No words can amount to an assault, though, perhaps, they may in some cases serve to explain a doubtful action; as if a man were to lay his hand upon his sword, and say, 'If it were not assize time, he would not take such language.' These words would prevent the action from being construed an assault, because they show he had no intent to do him any corporal hurt at that time." Bull. N. P. 15. Where a policeman obstructs a person entering a room, remaining passive and merely opposing his body as any inanimate object to the entrance of the person into the room, this is not an assault. Jones v. Wylie, 1 C. & K. 257, per Denman, C. J. Where there has been criminal intercourse, accompanied in the first instance with some degree of violence, an action is maintainable for the assault (f). For an assault, which is considered as an inchoate violence, the law has provided a remedy by an action of trespass, at the suit of the injured party, for the recovery of damages commensurate to the injury sustained (g).

A battery, which always includes an assault (h), is an injury inflicted on a person by beating, either with the hand or an instrument, or by any substance put or continued in motion by him; Rawlins v. Till, 3 M. & W. 28; 6 Dowl. 159, S.C.; by throwing water even (i). If A. beats the horse of B., whereby he 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. Gibbons v. Pepper, Salk. 638; Lord Raym. 39; and see Gilbertson v. Richardson, 5 C. B. 502; 17 L. J., C. P. 112. The form of action in the case of battery is the same as that in assault, viz. an action of trespass. In order to maintain this action, it is immaterial whether the act of the defendant be wilful or not.

(f) Desborough v. Homes, 1 Fost. & Finl. 6.

(g) For the law relating to indictments for assault and battery, see 1 Hawk. P. C. ch. 62, ss. 1, 2; 1 East's P. C., ch. 8, s. 1. The party injured may proceed by action and indictment for the same assault, and the court in which the action is brought

will not compel the plaintiff to make his election to pursue either one or the other. Jones v. Clay, 1 B. & P. 191. See 9 Geo. IV. c. 31, infra.

(h) Termes de la Ley, Battery; Com. Dig. Battery.

(i) Pursell v. Horn, 8 A. & E. 602.