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 praetitioner, 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; sbe 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 ber strip and pulling off her clothes might under the latter eircumstances 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.(0) An assault An unlawful imprisonment is also an assault; for it is a wrong may be by an done to the person of a man, for which, besides the private satisunlawful imprisonment.

faction 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 eonstitute 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.(11) 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

may be laid down thaison, or in a phi he sufficient. (r?

(a) Rex v. Nichol, Mich. T. 1807. sonment as amounts to Kidnapping, MS. Bayley, J., and Russ. & Ry. 130. &c. see ante, 582, et scqu.

(6) Rex v. Rosinski, East. T. 1824. (n) 2 Iost. 589. 4 Com. Dig. Impri MS. Bayley, J., and Ry. & Mood. sonment. (G). 3 Blac. Com. 197. C. C. 19.

(0) 3 Blac. Com. 127. fon) I Hawk. P. C. c. 60. s. 7. 4 Blac. (p) Id. ibid. 29 Car. 2. c. 7. And see Com. 218. And see precedents of in- further as to unlawful imprisonments, dictments for assaults and false im- 4 Com. Dig. Imprisonmeni. (H). 6 Bac. prisonment Cro. Circ. Comp. 61, 62. Ab. Trespass (D) 3. 2 Selw. N. P. Im 2. Stark. 385, 386. 8 Chit. Crim. L. prisonment. 835, et sequ. As to such false vimpri

ges there king 12 adant, as

solicitinggether voiacocess againts by theblic ministers

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 chat-
tels, 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 depu-
ties.(9)

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

not include a 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, the intention be collected from the intention. Thus, in an action for an assault, with which where it appeared that the defendant and another person were the

the act is done

is material in fighting, when the plaintiff came up and took hold of the defendant the inquiry by the collar, in order to separate the combatants, upon which whether it the defendant beat the plaintiff, it was objected to the counsel for wil

an assault,
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
was the quo animo which constituted an assault, which was matter
to be left to the jury.(1) 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 Ab. Ass. & Batt. (B).
this act, 3 Blac. Com. 254, 255, 256.; (v) Weaver v. Ward, Hob. 134. 3
aud, as to the construction of it, the Roll. Ab. 548. I Bac. Ab. Ass. & Batt.
cases collected in 2 Evans's Col. Stat. (B). But if the act were done without
Part IV. Cl. iii. No.21,

sufficient caution, the soldier would
(r) Bull. N. P. c. 4. p. 22.; and the be liable to an action at the suit of
opinion was adopted by Lord Kenyon, the party injured ; for no man will
in Oxley v. Flower and another, 2 be excused from a trespass, unless it
Selw. N. P. Imprisonment, I.

be shewn to have been caused by (8) Emmett v. Lyne, 1 New Rep. inevitable necessity, and entirely with255.

out his fault, Dickenson v. Watson,
(t) Griffin v. Parsons, Gloucester Sir T. Jones, 205. Underwood v Hewe
Lent Ass. 1754. Selw. N. P. 188. & son, I Str. 595. 2 Blac. R. 896. Selw.
Ball. 33. Note (1)

N. P. Ass. & Batt. 34.
(u) 1 Hawk. P. C. c. 62. S. 2. 1 Bac. (w) Gibbons v. Pepper, 4 Mod. 405.

will amount to

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 eridence, 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) Cases where In some cases force used against the person of another may be the force used justified, and will not amount to an assault and battery. Thus, if may be justified, and will

Hi an officer having a warrant against one who will not suffer himself not amount to to be arrested, beat or wound him, in the attempt to take him; or an assault.

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 com-
mitted by such acts.(x) So if A. beat B. (without wounding him,
or throwing at him a dangerous weapon,) who is wrongfully en-
deavouring, 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 the plaintiff and defendant fought
man were occasioned by a third per- together by consent, the fighting itself
son whipping him, such third person being uolawful: and the case of Ma!.
would be the trespasser. I Bac. Ab. thew v. Ollerton, Comb. 218. is also
Ass. & Batt. (B). And, upon the prin- referred to as an authority, that if one
ciples which have been before men- license another to beat him, such li-
tioned, such an act in a third person, cence is no defence, because it is
causing death to any one, may, under against the peace. And see anle, 527,
certain circumstances, amount to fe- el sequ. as to the criminality of some
lony. Ante, 526.

games or sports
(a) Rex y. Gill and another, 1 Str. (z) 1 Hawk. P.C. c. 60. s. 23.; 1 Bac.
190.

Ab. Ass. & Batt. (C). (y) i Bac. Ab. Ass. & Batt. (B). refer- (a) I Hawk, P.C. C. 60. s. 23. and ring to Dalt. c. 22. Bro. Coron. 229. the numerous authorities there cited. But in the notes to Bac. Ab. ub. sup. i Bac. Ab. Ass. & Batt. (C). the case of Boulter v. Clark, Abingdon (6) Leward v. Baseley, I Ld. Raym. Ass. cor. Parker, C. B. Bul. N. P. 16. 62. i Salk. 407. Bull. N.P. 18. is referred to, in which it was ruled (c) 1 Hawk. P. C. c. 60. s. 24. that it was no defence to allege that

tual violence,

tore

“ 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)

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

without acthe injury is a mere breach of a close, in contemplation of law, tus the defendant cannot justify a battery without a request to depart; there must be but it is otherwise where any actual violence is committed, as it a request to

depart or deis lawful in such case to oppose force to force: therefore, if a sist.be person break down the gate, or come into a close vi et armis, the force is used. 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. sault demesne, and the plaintiff replied (e) i Hawk. P. C. c. 60. s. 24.

that he was possessed of a certain close, (f) Leward v. Baseley, 1 Ld. Raym. and that the defendant broke the gate 62.

and chased his horses in the close, and (g) Lane v. Degberg, 11 W. 3. per that he, for the defending his possesTreby, C.J. Buli. N. P. 19.

sion, molliter insultum fecit upon the (h) Green v. Goddard, 2 Salk. 641. defendant, the replication was adIn a case of this kind, however, it judged to be bad : and that it should should seem that the violence must be have been molliler manus imposuit, as considerable, and continuing, in order the plaintiff could not justify an asto justify the application of force by Sault in defence of his possession. the owner, without some previous ré- Leward v. Baseley, i Ld. Raym. 62. quest to depart; at least, if the force (1) Green v. Goddard, ibid. applied be more than would be justi (1) Weaver v. Bush, 8 T. R. 78. I fied under a 'molliter manus imposuit: Selw. N. P. Ass. & Bat. 39, 40. for in a case of assault and battery, (1) Hawe v. Planner, I Saund. 13. where the defendant pleaded son as- (m) I East. P. C. c. 8. s. I. p. 406.

VOL, I.

fon

UTILLO

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) Indictment. 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.(0) One indict- It appears to have been formerly holden that a person could not ment may be

be prosecuted upon one indictment for assaulting two persons, preferred for assaulting each assault being a distinct offence.(p) But the case has been two persons 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?” (g) Indictment of In a case where an indictment preferred before the grand jury two counts, consisted of two counts, one for a riot, the other for an assault, one for a riot, and the other and the grand jury only found it a true bill as to the count for an for an assault, assault, and indorsed ignoramus on the count for a riot, a motion

by the was made on the part of the prosecutor to quash it, on the Erue bill as to ground that the grand jury should have found the whole to have the assault, been a true bill, or have rejected the indictment altogether: but and ignoramus the court held, that as there were two distinct counts, the finding as to the riot, holden good.” 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) Plea.

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) Where the de- A case has been decided, relating to the course of proceeding, fendant has where a defendant indicted for an assault has entered into a repleaded and entered into a cognizance to appear, enter, and try his traverse. The defendant recognizance was in the first instance apprehended for an assault, carried before to appear, en, a magistrate, and admitted to bail, on the condition of his apter, and try his traverse, he pearing at the ensuing assizes to answer such indictment as might cannot be be preferred against him; which condition he performed; and a tried, without bill of indictment bein

bill of indictment being found against him at such assizes, he entering his traverse, un- was arraigned, pleaded “Not Guilty,” and entered into a recogder the gaol nizance to appear, enter, and try his traverse at the then next delivery. But ovoizos

assizes. On the day before the opening of the commission for the

o he may withdraw his plea, next assizes, he surrendered himself to prison in discharge of his

bail; and to avoid paying for the issue-book, the entry of his tering his tra

(n) Bull. N. P. 18. i East. P. C. c. 1572. 2 Str. 870. 8. s. 1. p. 406.

(9) Per Cur. in Rex v. Benfield and (0) Jones v. Clay, i Bos. and Pul. Saunders, 2 Burr. 984. 191. 1 Selw. N. P. Ass. & Bat. 33. (r) Rex v. Fieldhouse, Cowp. 325. note (2). I Hawk. P. C. c. 62. S. 4. (8) 1 Hawk. P. C. e. 62. §. 3. I 1 Bac. Ab. Ass. & Bat. (D).

Bac. Ab. Ass. & Bat. (D), 1 East. P. C. 00) Rex v. Clendon, 2 Ld. Raym. c. 8. s. 1. p. 406. and c.9. s. I. p. 428.

sheing. Not Gui his that the con dischantry of

he surrendere, the opening traverse at the to a rece

with