CHAP. III. OF ASSAULT AND BATTERY. I. Of the Nature of an Assault and Battery, and in what Cases an Action for an Assault and Battery may be maintained. II. Of the Declaration. III. Of the Pleadings. IV. Of the Verdict and Judgment. V. Of the Costs. I. Of the Nature of an Assault and Battery, and in what Cases an Action for an Assault and Battery may be maintained. AN assault is an attempt, with force or violence, to do a corporal injury to another, as by holding up a fist in a menacing manner; striking at another with a cane or stick, though the party striking misses his aim; drawing a sword or bayonet; throwing a bottle or glass with intent to wound or strike; presenting a gun at a person who is within the distance to which the gun will carry; pointing a pitchfork at a person who is within reach'; or by any other similar act, accompanied with such circumstances as denote at the time an intention (1), (coupled with a present ability) of using a Finch's Law, B. 3. c. 9. 1 Hawk. b Genner v. Sparks, 6 Mod. 173, 4. and 'P. C. c. 62. s. 1. Salk. 79. (1) Whether the act shall amount to an assault, must in every case be collected from the intention. Trespass for assault: Plea, son assault demesne. Replication, de injuriá sua propria. The defendant and another person were fighting, and the plaintiff came actual violence against the person of another. For an assault, which is considered as an inchoate violence, the law has provided a remedy by an action of trespass vi et armis,. at the suit of the injured party, for the recovery of damages, commensurate to the injury sustained (2). A battery, which always includes an assault, is an injury inflicted on the person by beating, either with the hand or an instrument. The form of action prescribed by law, in the case of battery, is the same as that in assault, viz. an action of trespass vi et armis. In order to maintain this action, it is immaterial, whether the act of the defendant be wilful or not (3). Hence this action lies against a soldier who hurts one of his comrades while they are exercising, unless the defendant can shew such circumstances as will make it appear to the court, that the injury done to the plaintiff was inevitable, and that the defendant was not chargeable with any negligence: the merely pleading that the defendant committed the injury casualiter et per infortunium et contra voluntatem suam is not sufficient, for no man shall be excused of a trespass, unless it may be judged utterly without his fault. The defendant was uncocking a gun, and the plaintiff c Termes de la ley Battery, Com. Dig. d Weaver v. Ward, Hob. 134. Battery. e Underwood v. Hewson, Str. 596. and took hold of the defendant by the collar, in order to separate the combatants, whereupon the defendant beat the plaintiff. The plaintiff's counsel offering to enter into this evidence, it was objected on the other side, that the plaintiff ought to have replied this matter specially; but Legge, Baron, over-ruled the objection, observing, that the evidence was not offered by way of justification, but for the purpose of shewing that there was not any assault, for it was the quo animo which constituted an assault, which was matter to be left to a jury.-Griffin v. Parsons, Gloucester Lent Assizes, 1754. MSS. (2) For the law relating to indictments for assault and battery, see 1st Hawk. P. C. ch. 62. s. 1. 2. 1st East's P. C. ch. 8. s. 1. It must be observed, that the party injured may proceed against the defendant by action and indictment for the same assault, and the court, in which the action is brought, will not 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. and Pul. 191. (3) Neither does the degree of violence with which the act is done make any difference. Per Le Blanc, J. 3 East's Rep. 602. standing to see it, it went off, and wounded him: it was holden, that the plaintiff might maintain trespass. This action lies not only against him who commits the injury, but against him also at whose command it is done: hence if A command B to beat another person, and B does it accordingly, A is guilty of the trespass as well as B. Although the plaintiff declares for an assault and battery, yet he may recover for the assault only. Although a plaintiff has been indicted for a felonious assault, by stabbing, and acquitted, the party injured may, notwithstanding, sue him for damages in a civil action, if there has not been any collusion in procuring the acquittal"; and the same rule holds after indictment and conviction. II. Of the Declaration, THIS is a transitory action, and consequently the venue may be laid in any county', except where it is otherwise directed by statute; as, where the action is brought against justices of the peace, mayors, or bailiffs of cities, or townscorporate, head-boroughs, port-reves, constables, tithingmen, churchwardens, overseers of the poor, &c. or other persons acting in their aid and assistance, or by their command, for any thing done in their official capacity; in these cases, the venue, by stat. 21 Jac. 1. c. 12. s. 5. must be laid in the county where the facts were committed; otherwise the jury, who try the cause, shall find the defendant not guilty, without any regard to any evidence given by the plaintiff touching the trespass, battery, &c. The provisions of the preceding statute having been found to be salutary, they have, by a late statute, (42 G. 3. c. 85. 8. 6.) been extended to all persons holding a public employment, or any office, station, or capacity, civil or military, either in or out of the kingdom, and who, by virtue of such employment, have power to commit persons to safe custody; provided that, where any action shall be brought against such persons in this kingdom for any thing done out of this kingdom, the plaintiff may lay the act to have been done f 1 Roll. Abrid. 555. (V) pl. 2. g Lib. Ass. Auno 22. fol. 99. pl. 60. Bro. Trespass, pl. 40. Crosby v. Leng, 12 East, 409. i Adm. per Cur. S. C. k Litt. Sect. 485. 1 Corbett v. Barnes, Cro. Car. 444. in Westminster, or in any county where the defendant shall reside. Actions brought against any persons for any thing done by any officer of the excise or customs", or others acting in their aid, in execution, or by reason of their office, must be laid and tried in the county where the facts were committed. The day is not material, neither is the defendant obliged to prove that the fact was committed on the day laid in the declaration. Proof of the trespass at any time before the commencement of the action is sufficient. An assault, being one entire individual act, cannot be committed at different times, and consequently ought not to be stated in the declaration to have been so committed. In trespass and assault, it was alleged in the declaration”, that the defendant on such a day, and on divers other days and times between that day and the day of exhibiting the bill, made an assault on the plaintiff; the declaration was holden bad on special demurrer. But where the declaration stated that the defendant assaulted the plaintiff on divers days and times, it was adjudged good on special demurrer (4). The declaration ought to allege the fact to have been committed vi et armis, and contra pacem. Doubts seem to have been entertained, whether the omission of these words was matter of form or substance, at the common law. But now, by stat. 16 and 17 Car. 2. c. 8. s. 1. the omission is aided after verdict; and by stat. 4 Ann. c. 16. s. 1. it is enacted, that no exception shall be taken in any court of record of the omission of vi et armis, and contra pacem, except the same shall be specially shewn for cause of demurrer. m 23 Geo. 3. c. 70. s. 34. n 24 Geo. 3. c. 47. s. 35. o Litt. Sect. 485. 1 Inst. 28S. 8. 395. recognising Michell v. Neale, Cowp. 828. q Burgess v. Freelove, C. B. 2 Bos. & Pul. 425. (4) From the report of this case of Burgess v. Freelove, it appears that the Court of Common Pleas did not consider Michell v. Neale, Cowp. 828, as a sound authority. But Lord Eilenborough, C. J. in English v. Purser, took a distinction between the words "made an assault" in Michell v. Neale, and the word “assaulted" in Burgess v. Freelove, on the ground that the latter might mean that the defendant committed so many different assaults on the different days, admitting however that the distinction was very nice. This distinction certainly was not adverted to by the court in Burgess v. Freelove. The declaration ought to allege the commission of the fact positively, and not by way of recital, e. g. for that on such a day the defendant made an assault on the plaintiff, and not for that whereas, &c. Formerly it was usual, in the Court of King's Bench, to arrest or reverse' judgments for declaring in trespass by way of recital, or, as it was then called, the pleadings being in Latin, with a quod cum. But now the court will permit the plaintiff to amend the declaration by a bill filed right, the time of filing which bill the court will not inquire into'. In Parker v. Tanswell, B. R. M. 14 G. 3. 10 MS. 347, Serj. Hill's Coll. in Lincoln's Inn Library, an amendment of this kind was permitted after a judgment by default, the court saying that they hoped the objection on the quod cum would now be at rest. In proceedings by original, where the writ is set out in the declaration, the count is helped as to this defect, and made good by the writ'. If the declaration contains only one count", the plaintiff, after proving one assault, cannot wave that, and proceed to give evidence of another. III. Of the Pleadings. THE general issue to an action of assault and battery is not guilty, which constitutes a proper issue, in case the defendant has not committed the injury complained of. By stat. 7 Jac. 1. c. 5, "In any action upon the case, trespass, battery, or false imprisonment, against any J. P. mayor, bailiff, constable, &c. for any thing done by virtue of their offices, and against all others acting in their aid or assistance, or by their command concerning their offices, they may plead the general issue, and give the special matter in evidence." The preceding statute was made perpetual by stat. 21 Jac. 1. c. 12. and extended to churchwardens, overseers of the poor, and others acting in their aid or by their command. r Brigs v. Sheriff, Cro. Eliz. 507 s Wilder v. Handy, Str. 1151. Marshall v. Riggs, Str. 1162. t White v. Shaw, 2 Wils. 203. adjudg ed on special demurrer. u Stante v. Pricket, 1 Camp. N. P. C. |