statute of the commonwealth. It should be observed that a writ of Withernam is provided, in case of a return, on an execution in favor of the plaintiff, that the goods are eloigned. By the common law, a writ of Withernam might be had against the defendant, in case of such return, on mesne process, but no such is provided in the statute of this Commonwealth.

The description of the property to be replevied should be certain and true. But the object of the description is, not to enable the offi cer to find it himself, and deliver it to the plaintiff, but it is in order that it may appear on the writ that the officer was warranted in delivering the property to the plaintiff. Thus, if the description is," one black horse," this is sufficiently certain; though, if the defendant happens to have four or five black horses in possession, it will not be sufficient to enable the officer to select the particular horse, himself. But this is sufficient to warrant the sheriff in delivering a black horse to the plaintiff, and the particular horse should be pointed out by the plaintiff or some one in his behalf. See 2 Saund. 74; Str. 1015.

The action may be brought, and consequently the declaration may allege the taking, in any county in which the goods are found after the first taking. 2 Wils. 354; 2 B. & P. 480.

Where Replevin is brought by husband and wife, for the chattels of the wife taken before marriage, the taking must be alleged to their damage and not to the husband's damage alone. Strange, 1015; 1 Moore, 386.

Where some of the cattle are taken in A, and some in B, the declaration should designate those which were taken in each place. Lit. 37.

It is said, 1 Moore, 386, that in Replevin for taking goods, the value, as well as the number, must be stated with certainty; but this is the rule only where the action is in the detinet. The usual form is in the detinet, for the sheriff replevies the goods and delivers them to the plaintiff. 1 Saund. 347, b. 2.

As there is no new assignment in Replevin, as there is in Trespass, greater certainty is necessary in showing the place of taking in the declaration in Replevin, than in Trespass. But if the cattle are taken at A, and led through B, the taking may be alleged to have been at B, and if the defendant has a justification for taking them at A, he must plead it specially. Ibid. in notis, cites Dyer, 246; 1 Wils. 219; 3 Wils. 297.

Replevin in the detinet is where the goods remain in the hands of the taker, in which case the plaintiff recovers the value of the goods, as well as damages for the detention. Ibid. This, however, is obsolete.

It is seen, before, that part owners must join, and that one cannot sue alone for an undivided part; on the other hand, if A's cattle and B's cattle are taken together, they cannot join in a Replevin. Each must sue separately. Com. Dig. Plead. 3 K. 10.

.

TRESPASS.

AN action of Trespass lies for any injury done to a man's person or personal or real estate, accompanied with any species of direct force, whether actual or implied.

1. Assault and Battery.

Trespass to the person, or assault and battery, as it is usually termed, may be brought, not only for violence, offered immediately to the plaintiff by the defendant, but also for any act done by the defendant, by which another person or thing causes a battery; as where one pushes another against the plaintiff, or strikes a horse so that he kicks the plaintiff, (L. Raym. 955;) or throws a squib into a market place, which is thrown about by different persons to keep the danger from themselves, until it strikes the plaintiff, he may maintain this action against the first agent or thrower. 3 Wils. 403; Salk. 637.

If A license B to beat him, the license is void, and A may still maintain an action for a battery against B. Comb. 218.

Where there is a mere trial of skill at any lawful pastime, and one of the parties is hurt, this action cannot be maintained. As if two persons should play at cudgels, &c. It was held, however, that, where two boxed by consent, and one was hurt, it was no bar to the action, (Bul. N. P. 16,) because the act of boxing is unlawful. This, however, is to be understood of prize-fighting or pugilism, as practised in England, which is fighting by consent, and doing each other all the injury practicable, provided the parties do not transgress the laws of that brutal pastime, which of course is unlawful as a breach of the peace.

An offer or attempt to strike or seize a person; lying in wait for him; or besetting his house, &c. ; putting the hand on his sword to draw it; without actually touching his person in either case, is suffi cient to constitute an assault. 1 Went. 256; 1 Salk. 79. To assaults, as thus defined, intention is essential. For if, when a man places his hand on his sword, he uses any expressions, which show he has no intention to use his sword, it will not amount to an assault. 2 Mod. 3, Redman v. Edolfe.

A man cannot sue for an assault alone, but should declare for an assault and battery; and, if there was an assault, he may recover for that although there was no battery. 2 Lev. 102; 1 Vent. 256.

A battery is the commission of violence to another person, by beating, pushing, or touching his person, in any angry or spiteful manner whatever. But jogging a person in earnest discourse, is no battery. A mayhem is an aggravated battery, and consists in depriving a person permanently of the use of any member necessary for his defence, as a hand, arm, eye, &c.

Imprisonment is any detention of a person without his consent, wherever committed, and of however short continuance; thus to take a person by the collar, and hold him in the street, if without lawful cause and without his consent, is a false imprisonment. The law is the same with regard to all unlawful arrests. Whether words alone will constitute a false imprisonment, is not quite settled. But suppose E points a musket at F, and tells him he will shoot him if he stirs, is not that an

imprisonment? Or suppose an officer tells a man that he is his prisoner, and the man submits and goes with him without more?

Where an Arrest may be justified.

An arrest is justified, if made pursuant to a lawful warrant directed to the party making it. It may be justified by an officer, without a warrant, if a felony has been committed, and there is probable cause to suspect the person arrested, though he may be innocent.

So an officer may justify an arrest without warrant, during an affray, and to prevent a breach of the peace; but not after the affray is over. And it seems, that any private person may so far interfere, as to restrain any one from a breach of the peace; and, where a felony has been committed, may, without warrant, arrest the perpetrator; but this he will do at his peril, for, should it turn out that the party arrested is innocent, he may have this action for the assault, battery, and false impris onment. Quære, if probable cause to suspect a person, where there has been a felony committed, will not be sufficient to justify the detention of such person, by a private individual, until the fact can be ascertained? Public policy seems to require it, since otherwise, for want of an officer, the greatest criminals may escape with impunity.

What will justify an Assault and Battery, &c.

Generally, in the resistance of unlawful violence, a person is justified in using any degree of force, which self-defence may render necessary; or, which the protection of a husband, wife, parent, or child may require. 3 Salk. 46; Lord Raym. 62. A servant also may justify any force which may be necessary for the defence of his master; but it should be pleaded, that plaintiff would have beat his master. Stra. 3.

An assault alone without a battery, as a blow aimed or offered, is sufficient to excuse a battery on the defendant's part, if he cannot otherwise avoid it, since, if he waited till the blow had taken effect, it might be too late to prevent the injury, as he might be disabled by the blow. But, as such a battery can only be justified on the ground of self-defence, &c., as before stated, an assault will not justify a battery altogether disproportioned to it. See 2 Salk. 642. An officer may justify a battery of any prisoner who resists. A master may moderately correct his scholars or apprentices; a parent, his child. So also a master of a ship may moderately correct his seamen for misconduct on board his ship, for the necessary preservation of discipline. 14 Johns. R. But if immoderately or unreasonably, he will be liable. Ib. So a man may justify a battery upon any one, who unlawfully takes away his goods, while in the act, or who would unlawfully force into his house. 8 T. R. 78.

No action for a battery can be sustained against any officer for turning out of church one who disturbs the congregation, or a funeral procession. Nor against a private individual. Modern R. 168; 1 Lev.

196.

No action for assault and battery, or false imprisonment, can be maintained against one who restrains another from doing mischief.

Where a person comes quietly into a house, the owner must first request him to depart, before he can justify laying hands upon him to turn him out; and even then must use no more violence, than is necessary for that purpose. 8 T. R. 299.

A man may justify an assault and even a battery, in defence of his beasts. Quære. See Lutw. 1483.

A justice of the peace may personally arrest any one, who breaks the peace in his presence; or, by words without warrant, may authorize any by-stander to do so. But a warrant is necessary, if the breach of the peace is in his absence.

An officer committing a person, must, at his peril, see that his warrant is legal. Cro. Jac. 81.

Any private person may justify breaking into a house to prevent murder, rape, robbery, an affray, &c., and may restrain the offenders.

Any private person, present when a felony is committed, is bound to arrest the felon; and, where absolutely necessary to arrest the offender, may justify breaking the doors of his house, or the house of a stranger for that purpose. But, in all such cases, there should be a previous demand of admission, and a statement of the cause of it.

It is laid down that an officer, informed of a felony actually committed, may, without warrant, arrest the person suspected, and break doors for that purpose, though the party be innocent, if there be probable cause.

And if there is only probable cause to suspect, that a felony has been committed, and the officer is informed of it, and arrests an innocent person, upon probable cause of suspicion against him, it is now clear that the officer is justified. See Doug. 358. This appears reasonable, because if he should wait for a warrant, the person suspected might escape; and whether any act is absolutely felonious or not, may sometimes depend on circumstances of which the officer is not the judge, and it is against good policy, where there is reason to believe that a felony has been committed, to compel the officer at his peril first to make the fact certain, before he arrests the person whom there is probable cause to suspect. But a private person, not being under the same obligation in such case, has not the same indemnity extended to him. But he must at his peril ascertain that a felony has been committed, before he arrests any one upon probable cause of suspicion against him. See 1 East's P. C. 300, 301. (See Phillips v. Trull, 11 Johns. R. 444.)

It is laid down, that where E has a warrant against F, and G affirms himself to be F, and E arrests him, that G may have this action against E. See Hard. 323; Moor. 457. But it seems unreasonable that G should have an action against E in such case, unless E keeps him imprisoned after notice of the fact. For E is not in fault, and whatever G suffers is from his own falsehood; and volenti non fit injuria.

It is said a jailer may give reasonable correction to his prisoner. 1 Hawk. P. C. 130. This doctrine appears to be laid down too broadly. A jailer, being responsible for the safe custody of a prisoner, without doubt may make use of any restraint necessary for that purpose. So also, having the management and superintendence of the prison, he may compel submission by the prisoners to his will, in cases where the law intrusts him with a discretionary authority. For instance, if a prisoner is in the room E, and the jailer chooses that he should occupy the room F, the jailer has no authority to beat him until he goes voluntarily into the room F, as he would have, if he had the authority of administering reasonable correction. On the contrary, the jailer in case of resistance, has only an authority to call for assistance and remove him by force.

An action for false imprisonment may be maintained for an arrest on Sunday on civil process. Salk. 78.

Where a party is arrested under void, or irregular process, or under process from a court not having jurisdiction, this action may be maintained against the person named as plaintiff in such process. 3 Wilson, 341; 1 Strange, 509; Cro. Jac. 514; 2 Bl. R.

1141.

Where the arrest and imprisonment are justifiable, if there are any circumstances of cruelty or oppression practised, this action may be maintained for a false imprisonment, 1 T. R. 536.

Where, after an arrest, the plaintiff in the action orders the sheriff to discharge the defendant, and the sheriff detains him, such defendant may maintain this action against the sheriff. So in case of a supersedeas.

Where the false imprisonment is procured to be done by a third person, this action may be maintained against the person procuring. 2 Bl. R. 1055.

It may be maintained in this country for false imprisonment in a foreign country. Cowp. 161. Quare in every case.

2. For injuries to a man's goods and personal estate.

An action of Trespass may also be maintained against any one, who takes and carries away, injures, spoils or destroys any of the goods, or cattle, or chattels, or charters of another. So also for taking a sum of money numbered; for taking away a ship; an ox; a bond or other writing; for driving sheep with a dog; for beating a horse; for spoiling clothes, &c.

And a bare possession of any of the foregoing, is sufficient to maintain this action against a mere wrongdoer; thus a mere bailee, or a sheriff who has taken possession of the goods under mesne or final process, may maintain this action. 13 Johnson's Rep. 141, 561. An executor may have Trespass for the goods of the testator taken out of the executor's possession; but for those taken out of the testator's possession, he should bring Trover or Detinue, and waive the trespass; since Trespass does not survive.

But now, under the Revised Statutes of Massachusetts, the actions of Trespass for assault and battery, &c., or for goods taken and carried away, and Trespass or Case, for damages done to real or personal estate, survive for and against an executor or administrator. Chapter 93,

section 7.

So also a consignee or purchaser of goods may maintain Trespass, though he has never been in actual possession of them.

So after the death of a wife or servant, the husband or master may maintain trespass for taking either with the plaintiff's goods.

But the plaintiff must either have an actual, or constructive possession of goods, in order to maintain Trespass; and where he has a right to reduce them into his actual possession when he pleases, it is sufficient. 8 Johns. 432; 11 Johns. 285.

Where Trespass for goods does not lie.

An action of Trespass cannot be maintained for goods, which the party comes lawfully by; as by the delivery of the plaintiff; of a sheriff; by finding; upon a sale, though the seller was not the owner, if the buyer did not know it.