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24 G. 2. c. 44. Constable indemnified, on giving copy

of warrant.

And this seems to be implied in the statute of the 24 G. 2. c. 44. § 6. which enacts, That no action shall be brought against any constable or other officer, or person acting by his order, and in his aid, for any thing done in obedience to any warrant of a justice of the peace, under his hand and seal, until demand hath been made, or left at the usual place of his abode, by the party intending to bring such action, or by his attorney, in writing, signed by the party demanding the same, of the perusal and copy of such warrant, and the same hath been refused or neglected for six days after such demand ; and if, after compliance therewith, any such action shall be brought, without making the justice or justices who signed or sealed the warrant defendant or defendants, on producing and proving such warrant at the trial, the jury shall give their verdict for the defendant. — And it is certain that the constable cannot grant a perusal or copy of the warrant, unless he hath it in his custody.

By an ancient statute, 23 Hen. 6. c. 9., no sheriff shall take for any arrest but 20d. and the bailiff which maketh the arrest 4d. on pain of 401.; half to the king, and half to him that will sue in sessions (or the courts above), and treble damages to the party injured : and see Dew v. Parsons, E. 1819, 2 B. &; A. 562.

Upon which statute perhaps may be founded the custom in many places, of giving 4d. to the constable with the warrant, for his trouble in executing the same; which indeed at that time might be a reasonable satisfaction ; for 4d. then was worth more than ten times the value of 4d. now. Which decrease in the value of money, in this and many other cases, depending upon ancient statutes, may seem to require some consideration.

Sirsoil. See Burning.

23 H. 6. c. 9. Fee for rrest.

Assault and 23attery.

I. Assault, what.
II. Battery, what.
III. In what Cases they may be justified.
IV. Horo punished.
[43 Eliz. c. 6.-22 & 23 C. 2. c.9.–58 G. 3. c. 30.-

7 & 8 G. 4. c. 29,-11 & 12 W. 3. c. 7.-9 G. 4. c. 31.

What is an assault.

I. Assault, what.
AN assault, assultus, from the French assayler, is an attempt or

offer, with force and violence, to do a corporal hurt to another ; whether from malice or wantonness; as by striking at him with or without a weapon, though the party striking misses his aim : so, drawing a sword, throwing a bottle or glass, with intent to wound or strike, presenting a gun at a person within the distance to which the gun will carry, or pointing a pitchfork at a person standing within reach ; holding up one's fist at him, in a threatening or insulting manner; or with such other circumstances

as denote at the time an intention (coupled with a present ability) of using actual violence against his person, will amount to an assault. 1 Haw. c. 62. $ 1,2. Bull. N. P. 15. 1 Selw. N. P. 27. 1 East's P. C. 496. 1 Russ. 862. 3 Blac. Com. 120.

So there may be an assault by encouraging a dog to bite Assault by inanother person; by riding over a person with a horse ; or by termediate wilfully and violently driving a cart, &c. against the carriage of means. another person, and thereby causing bodily injury to the person travelling in it. 1 Russ. 605.

So, where a person pushed a drunken man against another, and Pushing a thereby hurt him; but aliter, if he only intended to do a right act, drunken man. as to assist the drunken man. 1 Russ. ib.

So, it was held that exposing a servant to the inclemency of the Exposing a ser. weather was an act in the nature of an assault. Per Lawrence J., vant in incle2 Campb. 650. cit. 1 Russ. ib.

ment weather. From hence it clearly follows that one charged with an assault Battery inand battery may be found guilty of the assault, and yet acquitted cludes assault. of the batiery : but every battery includes an assault: therefore on an indictment of assault and battery, in which the assault is ill laid, if the defendant be found guilty of the battery, it is sufficient. 1 Haw. c. 62. $ 1.

If a master takes indecent liberties with a female scholar, with. Liberties taken out her consent, though she does not resist, he is liable to be with females. punished as for an assault. R. M. T. 1807.

A master took very indecent liberties with a female scholar of 13, by putting her hand into his breeches, pulling up her petticoats, and putting his private parts to hers: she did not resist, but it was against her will. The jury found him guilty of an assault with intent to commit a rape, and also of a common assault : on case, the judges thought the finding as to the latter clearly right. R. v. Nichol, Sum. Ass. 1807. cor. Graham B. C. C. R. 130. M. T. 1807.

Rer v. Dawson, 3 Stark. C. N. P. 62. York Sum. Ass. 1821. Indictment for assaulting a female child with intent to abuse and carnally to know her: the jury found that the prisoner assaulted the child with intent to abuse her, but negatived the intention charged carnally to know her. Holroyd J. held that the averment of intention was divisible, and sentenced the prisoner to 12 months' imprisoment: and see R. v. Evans, 3. Stark. C.N.P. 35. So, where a female came to consult a quack doctor, and he made Stripping a feher strip naked and pulled off all her clothes, which was done male by a quack against her will; the jury finding that he did not really think it doctor. would assist him towards effecting her cure, it was held to constitute an assault, and that a conviction on a count for a common assault was good. R. v. Rosinski, R. & M. 19.

An unlawful imprisonment is also an assault, 1 Russ. 606.; and Unlawful imit will be an unlawful imprisonment whenever there is a detention prisonment. of the person without authority; and also, though the warrant or process is regular, yet if the arrest be made at an unlawful time, as on a Sunday, or in a place privileged from arrests. 1 Russ. ib. But where two persons were fighting, and A. came up and took Separation of hold of one of them by the collar in order to separate the combat- combatants. ants, it was held to be no assault. 1 Russ. 607. So, to lay one's Pointing out a hand gently on another, against whom an officer has a warrant, person to be

arrested, VOL. III.

Horse running away. Caused by a third person. Words cannot amount to an assault.

and to tell him “this is the man he wants,” is said to be no battery. See authority cited, 1 Russ. 607.

So, it is no battery, if a horse by a sudden fright runs away with his rider, and runs against a man. 1 Russ. ib. But aliter, if the running away of the horse were occasioned by a third person whipping him, for such third person would be a trespasser. i Russ. ib. n. (w.)

It seems agreed at this day, that no words whatsoever can amount to an assault, though perhaps they may in some cases serve to explain a doubtful action; as, if A. lays his hand upon his sword, and says, “ If it were not assize time, I would not take such language from you.” These words would prevent the action from being construed to be an assault, because they shew he had no intent to do him any corporal hurt at that time, and a man's intention must operate with his act in constituting an assault. 1 Haw.c. 62. § 1. Bull. N. P. 15. 1 Mod. 3.

Battery, what

Touching

II. Battery, whar. Battery (from the Saxon batte, a club, or beaten, to beat, from whence cometh also the word battle) seemeth to be, when any injury whatsoever, be it never so small, is actually done to the person of a man in an angry, or revengeful, or rude, or insolent manner, as by spitting in his face, or any way touching him in anger, or violently jostling him out of the way, and the like. 1 Haw. c. 62. § 2.

The least touching of another's person wilfully, or in anger, is a battery : for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slighest manner. 3 Blac. Com. 120.

The indictment was for a battery upon Dr. R. The evidence was that the defendant spit in his face. Holt C. J. It is a battery. 6 Mod. 170. Reg. v. Catesworth.

Spitting on.

When justifiable.

III. In what Cases they may be justified. If an officer, having a lawful warrant against one who will not suffer himself to be arrested, but resists and endeavours to rescue himself, beat or wound him in the attempt to take him, he may justify it. So, if a parent in a reasonable and proper manner chastise his child, or a master his servant, being actually in his service at the time, or a schoolmaster his scholar (a), or a gaoler his prisoner, or even a husband his wife; or if a man force a sword from one who offers to kill another; or if a man gently lay his hands on 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 dispossess me of my land or goods, or of the goods of another delivered to me to be kept for him, and will not desist upon my laying my hands gently on him and disturbing him; or if a man beat, wound, or maim one who makes an assault upon his person, or that of his wife, parent, child, or master; or if a man fight with, or beat one who attempts to kill any stranger; or

(a) Pult. 6. s. 16.

master,

if a man even threaten to kill one who puts him in fear of death, in such a place where he cannot safely fly from him ; or if one imprison those whom he sees fighting, till the heat is over; in all these cases it seems the party may justify the assault and battery. 1 Harr. c. 60. § 23. i Bac. Abr. tit. Assau. & Batt. 244. i Ld. Raym. 231. Bull. N. P.18. 3 Blac. Com. 121.

In Keit's case, 3 Salk. 47., it was adjudged per Holt C. J. that a Master may master may justify beating his apprentice, servant, scholar, &c. if correct his apthe beating is in nature of correction only, and with a proper instru- prentice, schoment (a); otherwise, immoderate correction is a good reply to a

lar, &c. justification of the action.

A wife may justify an assault in defence of her husband; so Servant may also a servant in defence of his master, but not a master in defence justify in de of his servant, because he may have an action per quod servitium fence of his amisit. Leeward v. Basilee, 1 Ld. Raym. 62. 1 Salk. 407. Bull. N. P. 18.

Lord Mansfield, however, held that a master would be justified Master in dein interposing where his servant was assaulted, as well as a servant fence of servant. for his master, saying that it rested on the relation between master and servant. Tickell v. Read, Lofft. 215. cit. I Russ. 608.

It has been holden that a military officer may, as such, justify Military officer. a battery, and even a mayhem, for disobedience of orders. Bull. N. P.19. cit. 1 Russ. 609.

It is said that a servant may not justify beating another in de. Servant cannot fence of his master's son, though he were commanded to do so by justify in dethe master, because he is not a servant to the son; and that for fence of mas

ter's son, Semb. the like reason a tenant may not beat another in defence of his landlord, 1 Hau. c. 16. $ 24. 1 Salk. 407.

If A. enters into the ground of B. unlawfully, B. must request In defence of him to depart before he can lay hands on him to turn him out; for possession. every impositio manuum is an assault and battery, which cannot be justified upon the account of breaking the close in law without Mere trespass. a request. But if the entry be forcible, as by breaking down a gate, or the like, a request to depart is unnecessary; for acts of Act of violence. violence on the part of the trespasser may be instantly opposed by such acts of violence on the part of the owner as may be necessary for the immediate defence of his possession. 2 Salk. 641. 1 Sel. N. P.33. Green v. Goddard.

If there be an attempt made to disseise a man of his land, or dispossess him of his goods, or to disturb him of his highway, or to turn an ancient watercouse from his mill, he may lawfully use force to resist it. Pult. 42. & 33.

Likewise, if a person comes into my house, and will not go out, I may justify laying hold of him, and turning him out.

But in general, unless there be violence in the trespass, a party Generally there should not, either in defence of his person, or his real or personal ought to be a property, begin by striking the trespasser, but should request him previous request

to a trespasser to depart or desist, and if that is refused, should gently lay his

to desist. hands upon him in the first instance, and not proceed with greater force than is made necessary by resistance. Weaver v. Bush, 8 T. R. 78. 1 Russ. 609. Thus, where a churchwarden justifies taking off the hat of a person who wore it in church at the time of divine service, the plea stated, that he first requested the plaintiff

(a) e. g. A rod. Pult. 6. 6. & 16.

Son assault demesne.

to be uncovered, and that the plaintiff refused. Hawe v. Planner,
1 Saund. 13. Com. Dig. (Esglise.) F.2.

And where a man in his own defence beats another who first
assaults him, he may take advantage thereof, both upon an indict-
ment and upon an action; but with this difference, that on an
indictment he may give it in evidence upon the plea of not guilty,
but on an action he must plead it specially. 1 Haw. c. 62. § 3.

And if a defendant prove that the plaintiff first listed up his staff, and offered to strike him, it is a sufficient assault to justify his striking the plaintiff, and he need not stay till the plaintiff has actually struck him. Bull. N. P. 18.

However, every assault will not justify every battery, but it is matter of evidence whether the assault were proportionable to the battery.

It is not every trifling assault that will justify a grievous and immediate mayhem, such as cutting off a leg or hand, or biting off a joint of a man's finger, unless it happened accidentally, without any cruel and malignant intention, or after the blood was heated in the scuffle ; but it must appear that the assault was in some degree proportionable to the mayhem. 1 East's P. C. 402.

23 C. 2. c. 9.

costs.

IV. How punished.
By action and There is no doubt but that the wrong-doer is subject both to an
indictment.

action at the suit of the party, wherein he shall render damages,
and also to an indictment at the suit of the king, wherein he shall
be fined according to the heinousness of the offence. 1 Haw.
c. 62. § 4. Nor will the court in which the action is brought
compel the plaintiff to njake his election to pursue either the one
or the other; for the fine to the king, upon the criminal pro-
secution, and the damages to the party in the civil action, are
perfectly distinct in their natures. Jones v. Clay, 1 Bos.& Pull.

191. i Selw. N. P. 28. n. (2).
43 Eliz. c. 6. But in an action of assault and battery, where the jury shall

give less than 40s. damages, the plaintiff shall have no more costs Certificates for than damages, unless the judge shall certify on the back of the

record that an actual battery (and not an assault only) was proved

upon the trial. 43 El. c. 6. 22 & 23 C. 2. c. 9. § 136. 58 G. 3. c. 30.

And by stat. 58 G. 3. c. 30. for preventing frivolous and vex

atious actions and suits of assault and battery, and for slanderous trespass for assault, in in- words in inferior courts, it is enacted, that “ in all actions or suits ferior courts, if of trespass for assault and battery, to be commenced in any court damages are having, or which by H. M.'s writ of justicies may have, jurisdiction given under

to hold pleas in actions or suits to the amount of 40s. (other than 40s. plaintiff to recover only so

H. M.'s courts at Westminster, the court of great sessions for the

principality of Wales, the court of great sessions for the county dainages so palatine of Chester, the court of common pleas for the county given. palatine of Lancaster, or the court of pleas for the county palatine

of Durham), if the jury upon the trial of the issue in such action,
or the jury that shall inquire of the damages, do find or assess
the damages under 40s., then the plaintiff or plaintiffs in such
action or suit shall have and recover only so much costs as the
damages so given or assessed amount unto, without any further
increase of the same,

In actions of

much costs as

1

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