in Westminster, or in any county where the defendant shall reside. Actions brought against any persons for any thing done by any officer of the excise or customs", or others acting in their aid, in execution, or by reason of their office, must be laid and tried in the county where the facts were committed. The day is not material°, neither is the defendant obliged to prove that the fact was committed on the day laid in the declaration. Proof of the trespass at any time before the commencement of the action is sufficient. An assault, being one entire individual act, cannot be committed at different times, and consequently ought not to be stated in the declaration to have been so committed. In trespass and assault, it was alleged in the declaration, that the defendant on such a day, and on divers other days and times between that day and the day of exhibiting the bill, made an assault on the plaintiff; the declaration was holden bad on special demurrer. But where the declaration stated that the defendant assaulted the plaintiff on divers days and times?, it was adjudged good on special demurrer (4). The declaration ought to allege the fact to have been committed vi et armis, and contra pacem. Doubts seem to have been entertained, whether the omission of these words was matter of form or substance, at the common law. But now, by stat. 16 and 17 Car. 2. c. 8. s. 1. the omission is aided after verdict; and by stat. 4 Ann. c. 16. s. 1. it is enacted, that no exception shall be taken in any court of record of the omission of vi et armis, and contra pacem, except the same shall be specially shewn for cause of de murrer. m 23 Geo. 3. c. 70. s. 34. n 24 Geo. 3. c. 47. s. 35. . Litt Sect. 485. 1 Inst. 293. a. 395. recognising Michell v. Neale, Cowp. 828. q Burgess v. Freelove, C. B. 2 Bos. & Pul. 425. (4) From the report of this case of Burgess v. Freelove, it appears that the Court of Common Pleas did not consider Michell v. Neale, Cowp. 828, as a sound authority. But Lord Ellenbo rough C. J. in English v. Purser, took a distinction between the words "made an assault" in Michell y. Neale, and the word "assaulted" in Burgess v. Freelove, on the ground that the latter might mean that the defendant committed so many different assaults on the different days, admitting however that the distinction was very nice. This distinction certainly was not adverted to by the court in Burgess v. Freelove. The declaration ought to allege the commission of the fact positively, and not by way of recital, e. g. for that on such a day the defendant made an assault on the plaintiff, and not for that whereas, &c. Formerly it was usual, in the Court of King's Bench, to arrest or reverse' judgments for declaring in trespass by way of recital, or, as it was then called, the pleadings being in Latin, with a quod cum. But now the court will permit the plaintiff to amend the declaration by a bill filed right, the time of filing which bill the court will not enquire intoʻ. In Parker v. Tanswell, B. R. M. 14 G. 3. 10 MS. 347, Serj. Hill's Coll. in Lincoln's Inn Library, an amendment of this kind was permitted after a judgment by default, the court saying that they hoped the objection on the quod cum would now be at rest. In proceedings by original, where the writ is set out in the declaration, the count is helped as to this defect, and made good by the writ'. If the declaration contains only one count", the plaintiff, after proving one assault, cannot wave that, and proceed to give evidence of another. III. Of the Pleadings. THE general issue to an action of assault and battery is not guilty, which constitutes a proper issue, in case the defendant has not committed the injury complained of. By stat. 7 Jac. 1. c. 5, " In any action upon the case, trespass, battery, or false imprisonment, against any J. P. mayor, bailiff, constable, &c. for any thing done by virtue of their offices, and against all others acting in their aid or assistance, or by their command concerning their offices, they may plead the general issue, and give the special matter in evidence." The preceding statute was made perpetual by stat. 21 Jac. 1. c. 12. and extended to churchwardens, overseers of the poor, and others acting in their aid or by their command. r Brigs v. Sheriff, Cro. Eliz. 507. » Wilder v. Handy, Str. 1151. Marshall v. Riggs, Str. 1162. t White v. Shaw, 2 Wils. 203. adjudg ed on special demurrer. u Stante v. Pricket, 1 Camp. N. P. C. 473: Justification in Defence of Person-If the plaintiff was the aggressor, and the injury of which he complains was occasioned by his own assault on the defendant, so that the act of the defendant became necessary for the defence of his person, the action cannot be maintained, because the law will permit any degree of violence to be justified, if it be necessary for the safety of the person. This defence or justification, which is the most usual in this action, and which is technically termed son assault demesne, must be pleaded apecially (5)". In like manner a defendant may justify an assault and battery in the defence of his wife (6), child (7), or servant (8). So a wife may justify in defence of her husband', a child of a parent, and a servant in defence of the person of his master. It must be observed that where a servant justifies in defence of his master, it ought to be alleged in the plea that the plaintiff would have beat the master, if the servant had not interposed. In trespass, assault, and battery against A. and B., A. pleaded son assault, and B. pleaded that he was servant to A., and that the plaintiff having assaulted his master in his presence, he in defence of his master struck the plaintiff. On demurrer the plea was holden ill, for the assault on the master might be over, and the servant cannot strike by way of revenge, but in order to prevent an injury; and the right way of pleading is, that the plaintiff would have beat the master if the servant had not interposed, prout ei bene licuit. Judgment for the plaintiff. Justification in Defence of Possession.-So a defendant may justify in defence of his possession: as if A. enter the close of B. unlawfully, B. having first requested (9) A. to x Cockroft v. Smith, Salk. 642. y 1 Inst. 282. b. 283. a. 22 Rol. Abr. 546. (D) pl. 1. Bro. Trespass, pl. 198. 2 Rol. Abr. 546. (D) pl. 2. b Leward v. Basely, Ld. Raym. 62. c 2 Rol. Ab. 546. (D) pl. 3. Adm. per Cur. in Ld. Raym. 62, and Salk, 407. d Barfoot v. Reynolds and another Str. 953. e 2 Rol. Abr. 548. (G) pl. 2. (5) See the form, Co. Entr. 2d ed. 644. a. (6) Winch. Ent. ed. 1680. p. 1i21. 7) Clerk's Assistant, p. 90, 91. (8) In Leeward v. Basily, Salk. 407. and Ld. Raymond, 62. it was said by the court, that a master could not justify an assault in defence of his servant, because the master might have an action per quod servitium amisit; which opinion is adopted in Bull. N. P. 18. (9) Every impositio manuum is an assault and battery, which cannot be justified upon account of breaking the close in law without a previous request. Green v. Goddard, Salk. 641. depart, may, on his refusal, justify laying his hand on A in order to remove himf. It must be observed, that B. ought not to begin with striking, or offering violence to As., for the law, in the first instance, merely allows B. in defence of his possession, to lay his hand gently on A. Hence a charge of beating, wounding, and knocking the party down, cannot be justified by a plea of molliter manus imposuith. If indeed A. should forcibly resist the endeavour to remove him, it will then be lawful to oppose force to force, and any degree of violence which may be necessary in self-defence will be justifiable. If the entry of the close be forcible, as by breaking down a gate, or the like, a previous request is unnecessary; for acts of violence, on the part of the trespasser, may be instantly opposed by such other acts of violence, on the part of the owner, as may be necessary for the immediate defence of his possession. Trespass, assault, and battery, with a stick: the defendant pleaded as to the assault and battery, that he was possessed of a close, and that the plaintiff with force and arms, and with a strong hand as much as in him lay, did attempt and endeavour forcibly to break into and enter the said close of the defendant, whereupon the defendant resisted and opposed such entrance, and defended his possession as it was lawful for him to do, and that if any injury happened to the plaintiff, it was in defence of the possession of the close. Replication, de injuriâ suâ propriâ absque tali causâ, and issue found for the defendant. A motion was made to enter up judgment for the plaintiff, notwithstanding the justification in the said plea, which was found for the defendant, on the ground that the plea could not be supported, on the authority of Jones v. Tresilian, 1 Mod. 36. where Twisden, J. said, you cannot justify the beating of a man in defence of your possession, but you may say that you did molliter manus imponere," &c. The case having been argued, Lord Kenyon, C. J. said, that the plaintiff could not succeed in his application, unless he could shew that the words molliter manus imposuit were mere technical words; that a party might resist and oppose force by force, in defence of his possession, if necessary if the resistance were excessive, the plaintiff might shew that in a new assignment. Lawrence, J. said that the general form of pleading had been by molliter manus imposuit, and on this ground, that the defendant ought not, in the first instance, to begin with striking the plaintiff, but ་་ f See the form, 2 Lutw. 1435. g2 Inst. 316. Gregory and wife v. Hill, 8 T. R. 299. i Green v. Goddard, Salk. 651. the law allows him either in defence of his person or possession to lay his hand on the plaintiff, and then he may say, if any further mischief ensued, it was in consequence of the plaintiff's own act; so that the battery follows from the resistance. But it does not necessarily follow from any thing stated in this plea, that the defendant did more than gently lay his hands on the plaintiff in the first instance; and if not, this plea may stand consistently with the authorities.' Rule discharged. In framing justifications in defence of possession, it is not necessary for the defendant to set forth the particulars of his title; it is sufficient to state that defendant was possessed, &c. for this is merely an inducement and conveyance to the substance of the plea. Trespass of assault, battery, and wounding. The defendant pleaded to the wounding, not guilty, and to the assault and battery that he was possessed of an house in such a parish for years; that the plaintiff entered his house, and would have thrust him out of possession thereof, whereupon he molliter manus imposuit, to put him out, and the harm, if any done, was in defence of his own possession. On demurrer, it was contended that the defendant ought to have set forth particularly who made the lease, when it was made, and for how many years; but the court held the plea good, for the statement of the possession for years, was only an inducement and conveyance to the justification, the substance of which was, that he offered to thrust him out of the possession of his house, and that the title or interest not coming in question, it was not necessary that the allegation should be as certain as where a claim was made by the defendant. The observations which have been made in respect of the defence of real property, apply also to the defence of personal property, for the protection of which the law will not permit violence to be offered in the first instance; and although it be not necessary in this case to request the person who has taken the property to restore it, yet unless such property is seized, or attempted to be seized, forcibly, the owner cannot justify any thing more than gently laying his hands on the trespasser in order to recover it. Justifications by Officers executing Process.-In like manner a sheriff's officer cannot justify any act more than laying his hand on another for the purpose of executing legal 1 Skevill v. Avery, Cro. Car. 135. D |