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process, unless acts of violence become necessary by a resistance on the part of the person apprehended, or an endeavour to rescue himself".

A battery cannot be justified by shewing an arrest merely", because an arrest may be made without touching the person, as if a bailiff comes into a room where the defendant is, and having locked the door, tells him that he is arrested, that is an arrest; for the defendant is in the custody of the officer.

It has been doubted, whether a defendant can justify a battery by stating that he gently laid his hands on the plaintiff in order to arrest him, and did arrest him. But this mode of pleading was adjudged to be good, in Titley v. Foxall, Willes, 688. And in Tottage v. Petty, Ca. Temp. Hardw. and MSS. where to trespass for assault and battery, the defendant as to the assault and battery pleaded, that the plaintiff entered his house without his leave, and there disturbed him, whereupon the defendant requested the plaintiff to quit his house, and because the plaintiff would not, the defendant gently laid his hands on the plaintiff to thrust him out: on demurrer the case of Williams v. Jones was cited as an authority to shew that this plea was bad; but Lord Hardwicke C. J. said, "It was not determined by us in Williams v. Jones, that a battery could not be justified by a molliter manus imposuit, but that it could not be justified by merely shewing an arrest." The court were clearly of opinion that the plea was good, and gave judgment for the defendant (10).

m Truscott v. Carpenter and Man, n Williams v. Jones, Ca. Temp. Hard. Lord Raym. 229. Williams v. Jones, 293.

Str. 1049. and Ca. Temp. Hard. 298. more fully reported.

(10) See an excellent note on this subject, and on the manner of pleading justifications of this kind by Serj. Williams, in Green v. Jones, 1 Saund. 296. "An officer cannot justify more than the assault, by virtue of the arrest, without shewing that the plaintiff resisted or endeavoured to rescue himself, unless it be by way of molliter manus imposuit, and in that manner he may justify the beating without shewing any resistance or attempt to rescue." Bull. N. P. 19. cites Titley v. Foxhall. In this case, however, as well as in the case of a plea of resistance, or an attempt to rescue, it is competent to the plaintiff to reply an unjustifiable or subsequent battery, as suggested by Kingsmil J. in a case in 21 H. 7. " Que puis cel matter de ses mains le defendant batit le plaintiff." See Mr. Durnford's note on this subject in his valuable edition of Willes's Reports, p. 17. n (b.)

Regularly, when the defendant justifies under a writ, warrant, precept, or any other authority, he must set it forth in his plea°.

Other Justifications.-The law looks with an indulgent eye on such acts of discipline as are necessary for the preservation of social order. Hence a master may moderately correct his servant, a parent chastise his child, and a schoolmaster his scholar. In like manner an officer may justify the moderate and reasonable correction of those who are placed under his command, if they disobey his orders.

The defendant may justify even a maihem, if done by him as an officer in the army for disobeying orders; and he may give in evidence the sentence of the council at war upon a petition against him by the plaintiff; and if by the sentence the petition is dismissed, it will be conclusive evidence in favour of the defendant.

The several preceding instances of justifications must, as has been observed with respect to the justification of son assault demesne, be pleaded specially. In framing these pleas care must be taken that the battery be admitted and confessed; otherwise, on demurrer, the plaintiff will be entitled to judgment; for it is a rule of pleading that the party justifying must shew and admit the fact. The fact admitted must also amount in law to a battery by the defendant, otherwise it will not be tantamount to an admission, and the plea will be bad, as being in violation of the preceding rule; although the defendant might have succeeded, if he had pleaded the general issue. The following case will illustrate this position.

Trespass, assault, and battery. The defendant pleaded that he was riding on a horse in the king's highway', and that his horse being frightened, ran away with him, and that the plaintiff was desired to go out of the way, and did not, and the horse ran upon the plaintiff against the defendant's will. On demurrer the plaintiff had judgment, because the defendant had justified the battery, and yet had not confessed that which amounted to a battery by himself; for if the horse ran away against the will of the rider, it could not be said, with any colour of reason, to be a battery

01 Inst. 283. a. Matthews v. Cary, 3 Mod. 137. 138. Carth. 73. S. C. Rastal. Entr. 613. pl. 18. Ed. 2ud.

r

MS. Gilb. Ev. 37. Ed. 1761. Bull.
N. P. 19. S. C.

Inst. 282. b.

Lane and Degberg, H. 11. W. 3. per s Gibbons v. Pepper, Salk. 607. and

Treby C. J. London Sittings. Salk.

Ld. Raym. 35.

in the rider (11); it was admitted, however, by the court, that if the defendant had pleaded not guilty, this matter night have acquitted him upon evidence.

Of local and transitory Justifications. If the cause of the justification be local, as if a constable of a town in another county arrests the body of a man that breaks the peace, the constable may in his justification traverse the county in which the declaration is laid: but he must not only traverse that but all other places, saving in the town whereof he is constable". So if the declaration charge the defendant with an assault and battery in London, if the defendant justify in defence of his possession at Waltham in Essex, he ought to traverse every other place except Waltham. To traverse the parish and not the county will

be bad on demurrer.

If the matter of the justification be transitory, it ought to follow the place laid in the declaration.

An action was brought for a battery at D., the defendant justified under the command of certain bailiffs executing legal process at S. in the same county. The plea was holden to be bad, for the bailiffs having authority throughout the whole county, the cause of justification was not local, so that the defendant ought to have justified in the same place in which the plaintiff had declared.

A battery in his own defence is not local, but may be justified in every place; consequently, such a justification, according to the preceding rule, must follow the place laid in the declaration.

If a justification be at the same time and place, it is needless to aver, that it is the same trespass.

Where the defendant pleads a local justification, the plaintiff may vary in his replication, either in time or place, from the time or place laid in the declaration, and it will not be a departure.

t 1 Iust. 282. a. b.

n Peacock v. Peacock, Cro. Eliz. 705. x Bridgwater v. Bythway, 3 Lev. 113. y Johnson v. Burton, Cro. Eliz. 860. z I Inst. 282. a. b.

a Bridgwater v. Bythway, 3 Lev. 113. b Purset v. Hutchings, Cro. Eliz. 842. c King and ux. v. Phippard, Carth. 281. d Serle v. Darford, Ld.Raym. 120. and Lutw. 1435.

(11) 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. Salk. 638. and Ld. Raym. 39.

To an action for an assault and battery, the defendant may plead, not guilty within four years next after the cause of action; but if he mistakes the limitation of time, and pleads, not guilty within six years, the plea will be bad on demurrer. From a recent case it appears that this demurrer must be specials.

Of the Replication.-The usual replication to the preceding justifications where they consist merely of matter of fact, triable by the country, as son assault demesne, is, that the defendant committed the trespasses of his own wrong, and without the cause alleged by him in his plea. This is termed a replication de injuriâ suá propriâ absque tali causa.

If the defendant pleads son assault demesne, and the plaintiff can justify it, such justification ought to be pleaded specially; for it cannot be given in evidence under the general replication of de injuriâ suâ propriâ.

On the general replication of de injuriâ suâ propriâ to son assault demesne, the plaintiff cannot give in evidence a battery at a day and place different from that laid in the declaration.

Hence if there were two assaults, one of which the defendaut can justify, and the other not, the plaintiff must new assign the assault for which he brought his action (12), otherwise the defendant will be entitled to a verdict on his justification.

Where the plaintiff declares of a single act of assault and battery', to which the defendant pleads son assault demesne, the plaintiff cannot reply de injuriâ suâ propriâ, and also

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(12) "If there were two batteries on one day, and the one were on the plaintiff's own assault, and the other not, if the defendant will justify one de son assault demesne, the plaintiff may make a new assignment of the other battery," per Cur. in Elwis v. Lombe, 6 Mod. 120. A new assignment, however, in these cases, is only necessary where there is but one count in the declaration; for if the declaration contain as many counts as there were assaults, &c. and some of them cannot be justified, the plaintiff may prove those without a new assignment. Bull. N. P. 17.

new assign that the defendant beat the plaintiff in a more violent manner than was necessary for the defence of himself; because such replication and new assignment constitute in effect a double replication, which is not allowed by the rules of pleading.

IV. Of the Verdict and Judgment.

DAMAGES may be given in this action not merely for the corporal injury, which in many cases may be very small, but also for the degrading insult with which it is accompanied.

Against joint trespassers there can be but one satisfaction, and, therefore, if they are sued in one action, although they sever in pleas and issues, yet one jury shall assess damages for all; and if all the issues are found for the plaintiff, the jurors ought not to sever the damages, for, if they do, the verdict will be vicious (13). And if in such case judgment be entered for the separate damages, such judgment will be erroneous". But, before judgment, the defect of the verdict may be cured, by the entry of a nolle prosequi against all the defendants, except one, and taking judgment against that one only.

So if joint defendants suffer judgment by default, and the plaintiff execute separate writs of inquiry against them, whereupon several damages are given, it is irregular; and if final judgment be eutered for those damages, such judgment will be erroneousP. But, before final judgment, the

m Hob. 66. Heydon's case, 5th Resol. 11 Rep 7.

n Crane v. Hummerstone, Cro. Jac. 118. Hill v. Goodchild, 5 Burr. 2791.

o Rodney v. Strode, Carth. 19.
p Mitchell v. Milbank, 6 T. R. 199.

(13) On the trial of an action against two defendants A. and B. it was proved that the assault by A. was more violent than that by B. Lord Ellenborough C. J. told the jury that the damages could not be severed, so as to give more damages against A. than against B. but that they might give their verdict against both, to the amount which they thought the most culpable ought to pay. Brown v. Allen and Oliver, 4 Esp. N. P. C. 158.

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