his presence; Id. s. 14. 2 Hale, 86, and such command is a good warrant, without writing. 2 Hale, 86.

When.] An arrest without warrant, may be made at any time, even on a Sunday. Also, as a warrant, in ordinary cases, is not returnable at any particular time, no time is in fact limited for making the arrest under it: but it should be made without any unnecessary delay. Where a warrant required the constable to arrest the party, to the end that he might become bound to appear at the next sessions, &c., this was holden to mean the next sessions after the arrest, and not merely the next sessions after the granting of the warrant, and that therefore an arrest after the latter sessions was good. Mayhew v. Parker, 8 T. R. 110. By stat. 29 C. 2, c. 7, s. 6, an arrest under a warrant cannot be made on a Sunday, except in cases of treason, felony, or breach of the peace :" but a very liberal construction is put upon these latter words ; and therefore it has been holden, that a warrant to apprehend a man, that he might find sureties for his good behaviour, was not within the act, but rather within the exception, and that the party therefore might be taken on a Sunday. Johnson v. Colston, T. Raym. 250. But it has been decided that a warrant for penalties under the Lottery Act, at the suit of a common informer, being merely in the nature of an execution in a civil action, could not legally be executed on a Sunday. R. v. Myers, 1 T. R. 265. The arrest, with or without warrant, may be made in the night time, as well as in the day. 9 Co. Rep. 66.

Where.] An arrest without warrant, may be made any where ; an arrest under a warrant, any where within the jurisdiction of the justice granting or backing it. See post, tit. "Warrant."

How.] An arrest is usually made by actually laying hands on the party and detaining him. But if the officer or other person say to him, "I arrest you," and the party acquiesce and go with him, this will be a good arrest; See Russen. v. Lucas, 1 Car. & P. 153; although it would be otherwise, if, instead of submitting, he had escaped, Id.; and merely showing him the warrant, and his then voluntarily accompanying the officer to a magistrate, would not be in law an arrest. Arrowsmith v. Le Mesurier, 2 New Rep. 211. If the party arrested demand to see the warrant, the constable, if he be a known officer, and acting within his precinct, is not bound to show it to him; but otherwise, where the arrest is by a constable out of his precinct, or by a private person; 2 Hawk. c. 13, s. 28; and where the arrest is without warrant, it is sufficient for a constable to state merely that he arrests the party in the Queen's name, 1 Hale, 589; but a private person, if required, must, it should seem, state to him the cause of the arrest.

If the party to be arrested be in a house, and the doors be fastened, then, according to Hawkins, the doors may be broken open to arrest him, (after first demanding admittance and being refused), in the following cases: 1st, upon a capias, on an indictment; 2nd., upon a warrant on a conviction, or for the purpose of his finding sureties for the peace or good behaviour; 3rd, where one, known to have committed treason or felony, or to have given another a dangerous wound, is pursued by a constable or private person, with or without warrant; 4th, where an affray is made in a house, in the view or hearing of a constable, or where affrayers fly to a house, and are immediately pursued by the constable; 5th, where a person lawfully arrested escapes and flies to a house in these several cases, the doors of the house may be broken open, to arrest the party or to suppress the affray, if upon demand made for the purpose, the parties within refuse to open them. 2 Hawk, c. 14, s. 1,-9. And the same, upon a warrant on a charge or suspicion of felony. 2 Hale, 117. So, where a private person, without warrant, broke open the door of a house, and imprisoned the occupier, to prevent him from murdering his wife, he was holden to be justified. Handcock v. Baker, 2 B. & P. 260. And it is immaterial whether it be the party's own house, or the house of a stranger, except that in the latter case the officer is justified only in case the party he seeks be actually in the house at the time. 2 Hale, 117.

:

Where a party may lawfully be arrested for felony, and he, knowing the cause, flies or resists, so that he cannot be taken otherwise than by killing him, the constable pursuing him will be justified in killing him; or a private person will in like manner be justified, if he can prove that the deceased was actually guilty of the felony. 2 Hale, 118, 119. But where the offence, for which the party is to be arrested, is a misdemeanor only, even a constable will not be justified in killing him, although he cannot otherwise be taken; Id. 117; unless indeed he assault the officer, for the purpose of escaping from him, in which case, if the officer, in standing on his guard, (for he need not retreat, as in the ordinary cases of se defendendo), kill him, this will not be felony. Id. 118.

Where a party is arrested upon a charge or suspicion of crime, if the arrest be made by a constable, he should take him before a justice of the peace, as soon as it is possible for him to do so, See Wright v. Court, 4 B. & C. 596, and in the mean time he should keep him safely in his custody. 2 Hale, 120. And the same, where the arrest is by a private person, under a warrant. But if the arrest be by a private person, without warrant, he may deliver the party to a constable, or he may take him to the common gaol, or before a justice of the peace. 1 Hale, 589. And the party arrested should not be treated with any unnecessary harshness, beyond what is ac

tually necessary for his safe custody; and therefore it has been holden, that a constable has no right to handcuff a person whom he has apprehended on a suspicion of felony, unless he have attempted to escape, or it be necessary to prevent him from escaping. Wright v. Court, supra.

1. Common Assault and Battery.

2. Summary Conviction for a Common Assault, p. 123. 3. Assaults in particular cases, p. 126.

upon Justices, &c. in cases of Wreck, p. 126.

upon Peace or Revenue Officers, p. 127.

to prevent apprehension, p. 128.

to prevent seamen or keelmen, &c. from working, p.128. to prevent the free sale or conveyance of grain, p. 129. in pursuance of conspiracy to raise wages, p. 129.

4. Other Assaults, p. 129.

Assault with intent to commit a felony, p. 129.
indecent assaults, p. 130.

1.-Common Assault and Battery.

What.] An assault is an attempt to do a personal injury to another. An attempt to rob another, an attempt to commit a rape, an attempt to have carnal knowledge of a girl under ten years of age, and the like, are called assaults. But in its usual and restricted sense, a common assault means an attempt or offer, with force and violence, to do a corporal hurt to another: as by striking at him, with or without a weapon, or presenting a gun at him, at a distance to which the gun will carry; or pointing a pitchfork at him, whilst standing within the reach of it; or holding up one's fist at him; or by

any other rash act, done in an angry or threatening manner. 1 Hawk. 62, s. 1. So, riding towards a man with intent to do him a corporal injury, so that he was obliged to run away to avoid it, was holden by Lord Tenterden, C. J. to be an assault. Martin v. Shoppee, 3 Car. & P. 373. So where it was proved that A. advanced in a threatening attitude with an intention to strike B. so that his blow would almost immediately have reached B. if he had not been stopped: Tindal, C. J. held that this was an assault in point of law, although it appeared that at the particular moment when A. was stopped, he was not near enough for his blow to take effect. Stephens v. Myers, 4 Car. & P. 349.

A battery is an injury, however small, actually done to the person of another, in an angry, revengeful, rude, or insolent manner, as by spitting in his face, or in any way touching him in anger, violently jostling him out of the way or the like. 1 Hawk. c. 62 s 2.

But it is no battery, to lay one's hand gently on another, against whom an officer has a warrant, and to tell the officer this is the man he seeks; 1 Hawk. 62, s. 2; or to lay one's hand on a man, if it be necessary to do so, in order to serve him with process. Harrison v. Hodgson, 10 B. & C. 445. Or if a horse, being suddenly frightened, run away with a man, without his fault, and run against and injure another man, this is no assault in the rider, for which even a civil action could be maintained. Gibbon v. Pepper, 1 L. Raym. 38, 2 Salk. 637.

So, if an officer, having a warrant against a man, who will not suffer himself to be arrested, beat or wound him in an attempt to take him; or if a parent in a reasonable manner chastise his child, or a master his servant, or a schoolmaster his scholar, or a gaoler his prisoner; or if one confine a friend who is insane, and bind or beat him, in such a manner as is proper in his circumstances; or if a man force a sword from one, who threatens to kill another therewith; or if a man gently lay his hand upon another, and thereby stay him from inciting a dog against a third person; or if I beat one (without wounding him, or throwing at him a dangerous weapon), who wrongfully endeavours with violence to disposses me of my land or goods, or the goods of another delivered to me for safe custody, and will not desist upon my laying my hand gently on him and disturbing him; or if a man beat or (as some say) wound or maim one, who makes an assault upon him, or upon his wife, parent, child or master, especially if it appear that he did all he could to avoid fighting before he gave the wound; or if a man fight with or beat one who attempts to kill a stranger: these and the like are not deemed breaches of the peace, 1 Hawk. c. 60, s. 3, and the defendant in such cases may justify the battery, by giving the special circumstances in

evidence under the plea of not guilty. Id. c. 62, s. 3. Where an excise officer gave a man a search warrant to look at, who refused to deliver it back to him, and a scuffle ensued: on an indictment for an assault, Lord Tenterden left it to the jury to say, whether the officer had used more force than was necessary to recover possession of the warrant. R. v. Milton, Moody & M. 107. If a man conduct himself in a disorderly manner in a public-house, and upon the landlord's requesting him to depart, he refuse to do so, the landlord is justified in laying hands upon him to put him out. Howell v. Jackson, 6 Car. & P. 723. Moriarty v. Brooks, Id. 684.

The punishment for a common assault and battery, when the party is prosecuted by indictment, is, fine, or imprisonment, or both; and the defendant may be ordered to find sureties for keeping the peace.

at

Commitment :-On -, unlawfully did assault and beat one C. D. And you the said keeper, &c.

2. Summary conviction for a common assault.

In what cases.] By stat. 9 G. 4, c. 31, s. 27, reciting that it is expedient that a summary power of punishing persons for common assaults and batteries should be provided under the limitations thereinafter mentioned, it is enacted that "where any person shall unlawfully assault or beat any other person, it shall be lawful for two justices of the peace, upon complaint of the party aggrieved, to hear and determine such offence; and the offender, upon conviction thereof before them, shall forfeit and pay such fine as shall appear to them to be meet, not exceeding, together with costs (if ordered), the sum of 51."

Provided "that nothing herein contained shall authorize any justices of the peace to hear and determine any case of assault or battery, in which any question shall arise as to the title to any lands, tenements or hereditaments, or any interest therein or accruing therefrom, or as to any bankruptcy or insolvency, or any execution under the process of any court of justice." Id. s. 29.

Provided also, "that in case the justices shall find the assault or battery complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is, from any other circumstance, a fit subject for a prosecution by indictment, they shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same manner as they would have done before the passing of this act." Id. s. 29.

And by stat. 5 & 6 W. 4, c. 19, s. 38, reciting the above provisions, and that it was expedient that they should be extended to similar offences committed on board merchant