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 indictment 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 lifted 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. IV. How punished. There is no doubt but that the wrong-doer is subject both to an 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 make his election to pursue either the one or the other; for the fine to the king, upon the criminal prosecution, and the damages to the party in the civil action, are perfectly distinct in their natures. Jones v. Clay, 1 Bos. & Pull. 191. 1 Selw. N. P. 28. n. (2). But in an action of assault and battery, where the jury shall give less than 40s. damages, the plaintiff shall have no more costs 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. And by stat. 58 G. 3. c. 30. for preventing frivolous and vexatious actions and suits of assault and battery, and for slanderous words in inferior courts, it is enacted, that "in all actions or suits of trespass for assault and battery, to be commenced in any court having, or which by H. M.'s writ of justicies may have, jurisdiction to hold pleas in actions or suits to the amount of 40s. (other than H. M.'s courts at Westminster, the court of great sessions for the principality of Wales, the court of great sessions for the county palatine of Chester, the court of common pleas for the county 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. If damages be laid under 40s. and assessed under 30s. plaintiff shall recover only costs to the amount of damages given. By § 2. it is enacted, "that in all actions or suits of assault and battery, or for slanderous words, to be sued or prosecuted in any Court whatsoever which hath not jurisdiction to hold plea to the amount of 40s., in such actions or suits, if the jury upon the trial of the issue in such action or suit, or the jury that shall inquire of the damages, do find or assess the damages under 30s., 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 shall amount to, without any further increase of the same." It is an aggravation of the offence, on account of the person on Aggravation of whom, or the place where, the same is committed: As where a offence. man assaults or threatens another for suing him; a counsel or attorney for being employed against him; a juror for his verdict; or a gaoler [constable] or other ministerial officer for keeping him in custody, and properly executing his duty. 4 Blac. Com. 126. By 7 & 8 G. 4. c. 29. § 6. if any person shall assault any other person with intent to rob him, or shall with menaces or by force demand any such property (i. e. any chattel, money, or personal security) of any other person, with intent to steal the same, every such offender shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and, if a male, to be once, twice, or thrice, publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment. By 7 G. 2. c. 21. (now repealed) it was enacted, than any person who should with an offensive weapon unlawfully and maliciously assault with intent to rob, &c. was guilty of felony. On this statute it has been held, that the assault must be made upon the person intended to be robbed, and consequently, that where it was proved that the prisoner held a pistol to the post-boy, who was driving, but it appeared that his intention was to rob the person in the chaise, it was held not to be within the statute. Thomas's case, 1 East, P. C. 418. 1 Russ. 617. 7 & 8 G.4. c. 29. Assault, &c. with intent to rob. Assault must be on the party intended to be robbed. The authorities shew, that on a charge on this statute, for an Actual demand assault with intent to rob, it is not necessary that there should of money not have been an actual demand of money, &c., if it sufficiently appear necessary. from the circumstances of the case, that such was the prisoner's intention. See cases cited 1 Russ. 618. By 4 G. 4. c. 54. § 5. (now also repealed) it was enacted, that if any person shall maliciously assault any other person, with intent to rob such other person, or shall, by menaces or by force, maliciously demand money, &c. of any other person, with intent to steal the same, he should be adjudged guilty of felony. In a prosecution under this statute, for demanding money by menaces, it was held that it must be distinctly stated in the indictment upon whom the demand for money, &c. was made. R. v. Dunkley & others, R. & M. 90. cit. 1 Russ. 619. It must be averred on whom the de mand was made. Assaulting cap tain to prevent By 11 & 12 W.3. c.7. §9., if any person shall lay violent hands on his commander, whereby to hinder him from fighting in defence of his ship and goods committed to his trust, he shall be adjudged defence of ship. to be a pirate, felon, and robber; and being convicted, shall suffer Arresting a clergyman during divine service. Punishment for assaults on officers, &c. for their endeavours to save shipwrecked property. Cases of assault for which there may be sentence See title Excise of hard labour. and Customs, Forcibly hindering seamen, &c. from working. Assaulting with intent to prevent sale of grain, &c. Summary conviction. Hard labour, Power of sum for common assault. death, and loss of lands, goods, &c., as pirates, felons, and robbers upon the seas ought to suffer. By 9 G. 4. c. 31. § 23., if any person shall arrest any clergyman upon any civil process, while he shall be performing DivineService, or shall, with the knowledge of such person, be going to perform the same, or returning from the performance thereof, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall suffer such punishment, by fine or imprisonment, or by both, as the court shall award. § 24. If any person shall assault and strike or wound any magistrate, officer, or other person whatsoever lawfully authorised, on account of the exercise of his duty in or concerning the preservation of any vessel in distress, or of any vessel, goods, or effects wrecked, stranded, or cast on shore, or lying under water, every such offender, being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for such term as the court shall award. §. 25. If any person is convicted of the following offences as misdemeanors; viz., an assault with intent to commit felony; an assault upon a peace officer or revenue officer in the due execution of his duty, or upon any person acting in aid of such officer; an assault upon any person with intent to resist or prevent the lawful apprehension, or detainer, of the party so assaulting, or of any other person for any offence for which they may be liable by law to be apprehended or detained, or of an assault committed in pursuance of any conspiracy to raise the rate of wages, the court may sentence the offender to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years, and may also (if it shall think fit) fine the offender, and require sureties for keeping the peace. § 26. If any person shall unlawfully and with force hinder any seaman, keelman, or caster from exercising his lawful trade &c., or shall beat, wound, or use violence to him, with intent to deter him from exercising the same; or if any person shall beat, &c. any person, with intent to deter or hinder him from selling or buying any wheat or other grain, flour, &c. in any market or other place, or shall beat, &c. any person having the care or charge of any wheat, &c. while on its way to or from any city, market, &c., with intent to stop the conveyance of the same, such offender may be convicted thereof before two justices of the peace, and imprisoned and kept to hard labour for any term not exceeding three calendar months, provided that no person so punished shall be punished for the same offence under any other law. § 27. Where any person shall unlawfully assault or beat any mary conviction 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 5l., which fine shall be paid to some one of the overseers of the poor or some other officer of the parish, &c., to be by him paid over to the use of the general rate of the county, &c. in which such parish, &c. shall be situate, whether it shall or shall not contribute to such general rate; and the evidence of any inhabitant of the county, &c. Fine not exceeding 51. shall be admitted in proof of the offence, notwithstanding such application of the fine; and if such fine, together with the costs (if ordered), shall not be paid, either immediately after the conviction, or within such period as the said justices shall at the time of the conviction appoint, it shall be lawful for them to commit the Commitment in offender, to be imprisoned for any term not exceeding two calendar default. months, unless such fine and costs be sooner paid; but if the justices shall deem the assault or battery not to be proved, or shall find the assault or battery to be justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint, they shall forthwith make out a certificate under their hands, stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred. § 28. Any person who shall have obtained such certificate, or Bar to other having been convicted shall have paid the whole amount adjudged proceedings. to be paid, or shall have suffered the imprisonment awarded, he shall be released from all further or other proceedings for the same cause. or case fit for § 29. Provided that if the justices shall find the assault or If attempt to battery complained of to have been accompanied by any attempt commit felony to commit felony, or shall be of opinion, from any other circumstance, indictment, that it is a fit subject for a prosecution by indictment, they shall magistrates not abstain from any judication thereupon, and shall deal with the case to proceed in all respects as they would have done before the passing of this judicially. act: Provided also, that nothing herein shall authorise any justices to hear and determine any case of assault or battery, in which any questions 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. Not to extend to any question of title. cy or insolvency. execution. Master of vessel leaving one of his crew abroad against his will a misde meanor. § 30. If any master of a merchant vessel shall, when abroad, force any man on shore, or wilfully leave him behind in any of his Majesty's colonies, or elsewhere, or shall refuse to bring home with him again all such of the men whom he carried out with him as are in a condition to return when he shall be ready to proceed homeward, he shall be guilty of a misdemeanor, and, on conviction, shall be imprisoned for such term as the court shall award; and such offences may be prosecuted by indictment or by information, at the suit of the Attorney General, in the court of K. B., and may be alleged to have been committed at Westminster, in Venue, the county of Middlesex; and the court may issue one or more commissions, if necessary, to examine witnesses abroad, and the depositions taken under the same shall be received in evidence on the trial of every such information. By § 35. it is enacted, That the justices before whom any person shall be summarily convicted of any offence against this act may cause the conviction to be drawn up in the following form of words, or in any other form of words to the same effect, as the case shall require; (that is to say,) -day of in the county of Be it remembered, that on the in the year of our Lord—————, at [or, riding, division, liberty, city, etc. as the case may be], A. O. is convicted before us [naming the justices], two of his majesty's justices of the peace for the said county [or, riding, &c.], for that he the said A. O. Form of con viction. Shooting at, cutting, stabbing, &c. Tit. Malicious Private assault. Punishment. A. did [specify the offence, and the time and place when and where § 12. of 9 G. 4. c. 31. (which has superseded 43 G. 3. c. 58. commonly called Lord Ellenborough's Act), by which it is made a capital offence if any one unlawfully and maliciously shoots at any person, &c., or stabs, cuts, or wounds any person, with any intent there specified, will be found, together with the cases decided on that description of crime, under tit. "Malicious Injuries,” in accordance with the arrangement followed in previous editions of this work; though, perhaps, it more properly belongs to the class of Aggravated Assaults. A private assault is not inquirable in the leet, not being a common nuisance, as all affrays are. 1 Haw. c. 63. § 1. The punishment usually inflicted upon persons convicted of assaults and batteries, is fine, imprisonment, and the finding of sureties to keep the peace. In cases where the offence more immediately affects the individual, the defendant is sometimes permitted by the court, even after conviction, to speak with the prosecutor, before any judgment is pronounced, and a trivial punishment (generally a fine of a shilling) is inflicted if the prosecutor declares himself satisfied. 4 Blac. Com. 363, 364. And where, in a case of indictment for ill treating a parish apprentice, a security for the fair expenses of the prosecution has been given by the defendant after conviction, upon an understanding that the court would abate the period of his imprisonment, the security was held to be good, upon the ground that it was given with the sanction of the Court, and to be considered as part of the punishment suffered by the defendant in expiation of his offence, in addition to the imprisonment inflicted on him. Beeley v. Wingfield, 11 East, 46. County of :} A. Warrant for an Assault. To the constable of — in the said county. WHEREAS complaint hath been made before me J. P. esquire, one of his majesty's justices of the peace in and for the said county, upon the oath of A. I. of in the said county, tailor, that A. O. of- aforesaid, butcher, did on the day |