FELONIES INCLUDING ASSAULTS.

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or murder cannot be convicted of an independent assault, committed at a different time from that when the felony was alleged to have been effected (z); and a prisoner indicted for attempting to discharge a loaded pistol at the prosecutor, cannot be found guilty of assaulting him with his fists (a); but if the indictment charge an assault with intent to rob, the jury may find the assault, though they expressly negative the felonious intention (b). It has been said that, on an indictment for feloniously administering poison, a prisoner cannot be convicted of an assault (c); but this would seem to be an erroneous decision, since the principal crime, being one of the offences mentioned in the act of 7 Will. 4 & 1 Vict. c. 85, is expressly included within the operation of § 11 (d), and it is obvious that, as poison may be administered in a forcible manner, the evidence might warrant the finding of an assault. Poison, indeed, may, as it seems, be administered in such a manner as not to include an assault, and the case of R. v. Button (e), where it was held that the mere putting a deleterious drug into coffee, in order that another person might take it, constituted an assault, if the mixture was taken, is probably not law; but even if this be so, the most that can be said is, that on an indictment for administering poison, evidence that the poison was taken will not in all cases warrant a conviction under § 11, and this is by no means tantamount to saying, that, on such an indictment, a prisoner cannot be found guilty of a common assault.

1 C. & Kir. 395, per Parke, B., and Coleridge, J.; R. v. Birch, 2 C. & Kir. 193, by the fifteen judges.

(2) R. v. Guttridge, 9 C. & P. 471; R. v. Phelps, 2 Moo. C. C. 240; C. & Marsh. 180, S. C. (a) R. v. St. George, 9 C. & P. 483.

(b) R. v. Boden, 1 C. & Kir. 395. The case of R. v. Greenwood, 2 C. & Kir. 339, is opposed to this doctrine; but it is submitted that that case is not law. (c) R. v. owth, 2 M. & Rob. 531, per Coltman, J.

(d) The words of § 11 are, on the trial of any person for any of the offences hereinbefore mentioned, or for any felony whatever, where the crime charged shall include an assault against the person," &c.; and it is apprehended that, according to the ordinary rule of grammatical construction, the clause marked in italics applies only to the words "for any felony," which immediately precede it. Had the legislature intended that the clause should override the words " for any of the offences hereinbefore mentioned," these words would have been utterly useless, as the offences before mentioned are all felonies, and would consequently have been included in the latter words, "any felony whatever."

(e) 8 C. & P. 660, per Serj. Arabin and the Recorder; questioned by Coltman, J., in R. v. Dilworth, 2 M. & Rob. 534.

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§ 174. It has also been doubted whether a prisoner could be convicted of an assault, on an indictment for carnally knowing a girl under ten years of age (ƒ); but this point has lately been decided in the affirmative (g), and it is submitted that this decision is correct. It may, indeed, be urged that to constitute an assault, there must be the absence of consent in the party assaulted; and this doctrine is, to a great extent, true; but we must remember that the legislature, in making it felony to abuse a child under ten years of age (h), and in drawing no distinction, with respect to the punishment, between those cases where the child consented and those where she was violently ravished, evidently acted on the presumption, that, under the age of ten, a girl was incompetent to consent upon such a subject. Moreover, in actions of trespass for criminal conversation, the declaration always alleges that the defendant assaulted the plaintiff's wife, and this allegation is supported by proof of an adulterous intercourse, though the wife is shown to have been a consenting party. In two late indictments for rape, where it appeared that the women consented to connexion under the belief that the prisoners were their husbands, the jury were directed to find the prisoners guilty of an assault, and they were sentenced to three years' imprisonment with hard labour (i). A boy under fourteen years of age, if indicted for a rape, may be convicted of an assault (j); as may also a party charged with abduc

(ƒ) R. v. Banks, 8 C. & P. 574, per Patteson, J.; R. v. Holcroft, 2 C. & Kir. 341, per Wightman, J., after consulting Cresswell, J. In this last case the indictment did not, as it ought to have done, contain any charge of assault.

(g) R. v. Folkes, 2 M. & Rob. 460, per Rolfe, B.; R. v. M‘Rue, 8 C. & P. 641, coram Bosanquet, Coleridge, and Coltman, Js.

(h) 9 Geo. 4, c. 31, s. 17. A prisoner cannot be convicted of an assault on an indictment for carnally knowing a girl between the age of ten and twelve years, if she consented; neither, in the event of consent, can he be convicted on a count charging an assault with intent carnally to know her; but he should be indicted for a misdemeanor in attempting to commit a statutable offence. R. v. Martin, 2 Moo. C. C. 123; 9 C. & P. 213, S. C.; R. v. Meredith, 8 C. & P. 589, per Lord Abinger.

(i) R. v. Saunders, 8 C. & P. 265, per Gurney, B.; R. v. Williams, id. 286, per Alderson, B. If the offence had not been completed, the prisoners could not, under the circumstances stated above, have been found guilty of an assault with intent to commit a rape, though they might have been convicted of a common assault. R. v. Stanton, 1 C. & Kir. 415, per Coleridge, J.

(j) R. v. Brimilow, 2 Moo. C. C. 122; 9 C. & P. 366, S. C.

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tion, if he employed any force to the person of the lady, and took her away without her consent (k). It is almost needless to add, that on indictments either for burglary with intent to ravish a woman (1), or for an unnatural crime committed upon an animal (m), the prisoner cannot be convicted of an assault under the statute. It may here be added, that, if upon the trial of an indictment for obtaining money by false pretences, it should appear that the property in question was so obtained as to amount to larceny, the prisoner shall not, by reason thereof, be acquitted (n); though proof of obtaining goods by false pretences would not sustain a charge of larceny (o).

§ 175. In civil actions the same rule prevails. Thus, in an action for defamation, if the plaintiff allege special damage, he need not prove it, provided the words be actionable per se (p). So, in an action on a policy of insurance, the material allegation is the loss; but whether total or partial, is a mere question of degree; and if the former be alleged, proof of the latter is sufficient (q). "Where, in an action of trespass quare clausum fregit, the defendant pleads a right of way with carriages, and cattle, and on foot, in the same plea, and issue is taken thereon, the plea shall be taken distributively; and if a right of way with cattle or on foot only shall be found by the jury, a verdict shall pass for the defendant in respect of such of the trespasses proved as shall be justified by the right of way so found, and for the plaintiff in respect of such of the trespasses as shall not be so justified" (r). So, when, in a similar action, the defendant pleads a right of common of pasture for divers kinds of cattle, e.g., horses, sheep, oxen, and cows, such plea shall be construed distributively; and a similar course will be

(k) R. v. Barratt, 9 C. & P. 387, per Parke, B.

(1) R. v. Watkins, 2 Moo. C. C. 217; C. & Marsh. 264, S. C.

(m) R. v. Eaton, 8 C. & P. 417. If acquitted of the capital charge, the prisoner should be indicted for a misdemeanor in attempting to commit a felony. (n) 7 & 8 Geo. 4, c. 29, s. 53. (0) 2 Russ. C. & M. 27, 28.

(p) Smith v. Thomas, 2 Bing. N. C. 380, per Tindal, C. J.

(9) Gardiner v. Croasdale, 2 Burr. 904. It would be extremely unjust on the plaintiff, if this were not the law, as by the new rules, " two counts upon the same policy of insurance are not to be allowed."

(r) Reg. Gen. H. T. 4 Will. 4, 5 B. & Ad. X.

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adopted in all actions, in which a right of way or common, “ or other similar right," shall be pleaded, if the allegations as to the extent of the right are capable of being divided (s). Thus, where the defendant justified a trespass under an alleged right of way for the purpose of bringing water and goods from a river, and the jury found the right to fetch water, but negatived the right to fetch goods, the court ordered the verdict to be entered distributively, giving the defendant, as substantially succeeding, the general costs of the cause (t). It is, however, material in these cases, that the right proved, though less extensive than that alleged, should be of the same nature with it, and included in it; for otherwise the opposite party might justly complain that he was taken by surprise. Therefore, where, to an action of trespass, the defendant claimed in his plea a general right of way on foot and with horses, cattle, carts, waggons, and other carriages, for the convenient occupation of his close, and the jury found a limited right of carting timber and wood only from the close, the court held that, as the right proved was nowhere alleged in the pleading, the plaintiff was entitled to the entire verdict; but they gave the defendant leave, on payment of costs, to amend the plea according to the facts, the plaintiff being at liberty to reply de novo (u). It seems scarcely necessary to add, that a party may claim in his declaration a less right than he is able to prove, provided that the lesser right claimed does not differ in kind from, but is included in, the greater right proved (").

§ 176. The power of finding issues distributively is highly valuable, as it not only diminishes the danger of variance, but is instrumental in effecting a fair distribution of the costs of the cause (w). It has, therefore, been applied to a variety of cases. Thus, when the plaintiff declared in trespass quare clausum fregit,

(s) Reg. Gen. H. T. 4 Will. 4, 5 B. & Ad. X.

(t) Knight v. Woore, 3 Bing. N. C. 3, 534; 5 Dowl. 201; 3 Scott, 326, S. C. (u) Higham v. Rabett, 5 Bing. N. C. 622; 7 Scott, 827; 7 Dowl 653, S. C. (v) Duncan v. Louch, 6 Q. B. 904, 914; Bailey v. Appleyard, 8 A. & E. 167, per Coleridge, J. In this last case it was held, that proof of a party being entitled to a profit à prendre would not support a plea prescribing for an easement.

(w) Reg. Gen. H. T. 2 Will. 4, r. 74, 3 B. & Ad. 385, provides, that " no costs shall be allowed on taxation to a plaintiff, upon any counts or issues upon which he has not succeeded; and the costs of all issues found for the defendant shall be deducted from the plaintiff's costs.”

INSTANCES OF DISTRIBUTIVE ISSUES.

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and, by her replication, on which the parties went to issue, made title to the three closes mentioned in her declaration, but at the trial gave evidence as to two only; the Court held that the issue was divisible, and that the plaintiff was entitled to a verdict as to the two closes, and the defendants as to the other (x). In an action of trespass for breaking and entering the plaintiff's house, and taking and converting his goods, which were described by distinct parcels, issue was joined on a plea, which denied that the house or goods were the plaintiff's; at the trial it appeared that the plaintiff was entitled to the house and one parcel of the goods only, and the Court held that the issue was divisible, and that the verdict must be entered distributively (y). So, in ejectment, where the lessor of the plaintiff sought to recover, under one count and one demise, several messuages-some freehold, some copyhold-and succeeded as to the latter, but failed as to the former, the Court held that, since the plea of not guilty raised a distinct issue as to each messuage, the defendant was entitled to his verdict and costs with respect to those on which the plaintiff had failed (z). The same rule, it seems, prevails in all cases where the plaintiff declares in a general form, and proceeds for distinct causes of action (a); because the plea of not guilty, or non assumpsit, not only raises an issue on each count, but on each allegation of a single count, provided such allegation contains a separate cause of action.

§ 177. If, however, the plaintiff is proceeding for one cause of action only, he will be entitled to a general verdict, though he does not succeed to the extent of his claim, and the defendant cannot even deduct his costs for disproving that portion of the claim which the plaintiff has failed to establish. Thus, in Anderson v. Chapman (b) an action was brought for negligence in stowing, and otherwise taking care of and conveying, one hundred casks of tallow; the defendants denied negligence "in and about the stowage, or otherwise taking care of and conveying" the goods.

(x) Phythian v. White, 1 M. & W. 216. See Cox v. Thomason, 2 C. & J. 498. (y) Routledge v. Abbott, 8 A. & E. 582; Prudhomme v. Fraser, 4 N. & M. 512. (2) Doe v. Errington, 4 Dowl. 602; Doe v. Lewis, 13 M. & W. 241.

(a) Anderson v. Chapman, 5 M. & W. 490; Knight v. Brown, 1 Dowl. 730. (b) 5 M. & W. 483, noticed by Patteson, J., in Delisser v. Towne, 1 Q. B. 341.

N