plt. is also ready to verify, that he did not assault the said deft. as in the second plea mentioned, elsewhere than in the said dwelling-house of the said E. F. Wherefore he prays judgment and his damages by him sustained on occasion of the committing of the said trespasses in the introductory part of the said second plea mentioned, to be adjudged to him, &c.

See other replications to plea of defence of possession of close, that plt. had a right of way over it, 3 Chit. Pl. 1203, and the replications to justifications under process, &c., to actions for for false imprisonment, post, "False Imprisonment."

NEW ASSIGNMENT.

And, as to the said plea of the said deft. by him secondly above pleaded, as to the said several trespasses in the introductory part of that plea mentioned, and therein attempted to be justified, the said plt. says, that by reason of any thing in that plea alleged, he ought not to be barred from having and maintaining his aforesaid action thereof against the said deft., because he says that he brought his said action, not for the trespasses in the said second plea acknowledged to have been done, but for that the said deft., heretofore, to wit, on the day of ——, in the year of our Lord, with force and arms, at aforesaid, in the county aforesaid, upon another and different occasion, and for another and different purpose than in the said second plea mentioned, made another and different assault upon the said plt. than the assault in the said second plea mentioned, and then and there beat, wounded, and ill-treated him in manner and form as the said plt. hath above thereof complained, which said trespasses, above newly assigned, are other and different trespasses than the said trespasses in the said second plea acknowledged to have been done; and this the said plt. is ready to verify. Wherefore, inasmuch as the said deft, hath not answered the said trespasses above newly assigned, he, the said plt. prays judgment, and his damages by him sustained by reason of the committing thereof, to be adjudged to him, &c.

Evidence for Plaintiff.

Assault, &c. and Cause of Action.] The general issue puts plt. upon proof of the assault and battery stated in the declaration; and, when this plea is pleaded, it is usual for the plt. to begin: Step. P. 292. But, where special pleas of justification are pleaded without it, the deft. begins, and must first establish his plea before the question of damages is to be gone into, Bedell v. Russell, 1 R. & M. 293, and see 3 Camp. 361, post, "Evidence;" and the plt. need give no evidence unless to aggravate damages or invalidate the deft.'s proof: Guy v. Kitchiner, Str. 1271; 1 Wils. 171, s. c.

With respect to what amounts to an assault, it consists of an intentional attempt to commit an act of violence upon the person of another, as striking at him, within reach, with his fist, stick, &c., or drawing a sword, or presenting a gun, or throwing any thing at him: Finch, B. 3, c. 9.; 6 Mo. 173-4; Ginner v. Sparkes, Salk. 79; 1 Selw. N. P. 27. But striking at another, at such a distance as could not strike the plaintiff, as to assault, Com. D. Battery, C. A mere menace or words do not constitute an assault: Bac. Ab. Assault, A.; 1 Hawk. P. C. c. 62, s. 1. If a man lay his hand on his sword and say, if it were not for so and so, I would not take such language, it is no assault, Tuber[*104] ville v. Savage, 1 Mod. 3, as it is the intention that consti

tutes the offence. Where the plt. took the deft. by the collar, in order to separate him from a person he was fighting with, whereupon the deft. beat him, on objection that the plt. ought to have replied that matter specially to the plea of son assault demesne, Legge, B. observed, that the evidence was not offered for the purpose of showing

that there was no assault, for it was the quo animo which constituted the assault, which was matter to be left to the jury:" M. S. A battery, which always includes an assault, is the accomplishment of the assault by an immediate act of force committed on the person, Com. D. Battery; and imposition by hands, or any thing or instrument, by force applied to plt.'s person against his will, is a battery: Skin. 387; Green v. Goddard, 1 Salk. 641. Striking a horse upon which a party is riding, whereby he is thrown, is a battery: 1 Mod. 24, 1 Sid. 433. And there is a battery in all cases where there is an immediate injury from an immediate act of intentional force by the deft. The degree of force with which it was done makes no difference, and "it is immaterial whether the injury be wilful or not:" Leame v. Bray, 3 East, 602; Underwood v. Hewson, 1 Str. 596, 599. But, where the act is inevitable, and the conduct of deft. entirely without fault, it is damnum absque injuria, and does not constitute a legal battery, Hob. 134, Scot v. Shepherd, 3 Wils. 403, Wakeman v. Robinson, 1 Bing. 213, as it would not include an assault: Co. Lit. 253. The intention of the party ought, it would appear, to be construed with reference to the principle, "that every man shall be presumed to contemplate that which is the natural and immediate consequence of his act :" he will be held liable for every act of negligence: thus-where the deft. was uncocking a gun, and the plt. standing by, and the deft. from want of care, allowed the gun to go off, and wound plt., he was held liable for a battery: ib.

The plt. should prove the allegations contained in his declaration by going into the circumstances of his case at length, as to the manner in which the assault and battery were committed, the deft.'s conduct and expressions, the degree of violence used, and the extent of the injury. Any admissions made by deft. of the assault, should be proved: ante, 48, "Admissions." Plt. cannot give in evidence a conviction on an indictment for an assault and battery: Jones v. White, 1 Str. 68. The plt. is not bound to prove the whole of the facts as stated; deft. may be found guilty of an assault only, though an assault and battery be stated: 4 Mo. 405, B. N. P. 94.

The day or place stated in the declaration is immaterial: B. N. P. 86; Webb v. Turner, Str. 1095. Where son assault is pleaded, and the declaration is entitled generally of the term, an assault within the term may be proved: post, " Declaration;" 2 Str. 1271; 1 Wils. 171, s. c. The plt. may prove as many distinct assaults, &c., as there are counts in the declaration, B. N. P. 86, Webb v. Turner, Str. 1095; or, if the assaults are laid with a continuando, he may prove any assaults committed within the days laid in the continuando, B. N. P. 86, and one assault before the day stated: ib. If there is but one count in the declaration, the plt., after having elected to prove one assault and failed, will not be allowed to give evidence of another: Stante v. Pricket, 1 Camp. 473. And, when the declaration contains two counts, and the deft. suffers judgment by default on one, and pleads not guilty to the other, and on the trial one trespass only is proved, the deft. will be entitled to a verdict: Compare v. Hicks, 7 T. R. 727. And, where the declaration contains two counts, and there is a justification pleaded to one of them, which is admitted by the replication, the plt. cannot reco

ver, unless he show that two were committed: Atkinson v. Matteson, 2 T. R. 172; 1 Selw. N. P. 38. Where, upon an issue on son assault demesne, and the declaration confines the plt. to one assault only, the

deft. proves that he was assaulted before the day mentioned in [*105] the declaration, *the plt. cannot give in evidence an assault on the day without new assigning: Randle v. Webb, 1 Esp. Rep. 38, ante, 98. But, upon not guilty pleaded, the plt. may give in evidence an assault and battery at any time or place: Brownl. 233. Though the declaration contain several counts, yet if deft. pleads that the assaults therein mentioned are one and the same, which the plt. does not deny, he cannot give in evidence more than one assault: Gale v. Dalrymple, R. & M. 118. Plt. should, in such case, have demurred, or denied they were the same. When the action is brought against several for a joint trespass committed at a particular time, he must confine himself to that period; and, if all the defts. were not then concerned in the trespass committed at that time, the plt. cannot have recourse to a trespass committed at any other time, when some only of the defts. were concerned, who were not implicated in the first transaction, for some of the defts. might thereby be subjected to damages for a trespass in which they had no concern: Sedley v. Sutherland, 3 Esp. Rep. 202.

Where deft. pleads specially, the plt. should be prepared with evidence to rebut the facts stated in deft.'s pleas: much of this may, indeed, be done by a cross-examination of deft's witnesses. If plt. has replied specially, he must be prepared to prove the facts stated in the order of the replication; as, in the case of plt.'s assault in defence of possession, or under a claim of right of way, &c., if access be replied, it must be proved by plt. As an assignment admits the justification mentioned in the deft.'s plea, that assault is out of the question, and the plt. must go into evidence of the one set out in the new assignment, and produce his evidence as he would in support of a declaration.

Alia Enormia.] The plt. will not be suffered to give in evidence injuries which the plt. received, unless expressly stated in the declaration: Lowden v. Goodrick, Peake, 46; see post, "False Imprisonment" and "Trespass;" evidence under "Alia Enormia."

The

Damages.] The plt. cannot give in evidence any special damage but that stated in the declaration, post, "Damages," nor any remote consequence as special damage: Moore v. Adam, 2 Chit. Rep. 198. special damage must be the clear immediate result of the act which is complained of: ib. The damages may be assessed, not for the mere corporal injury, which in many cases may be very trifling; and the jury are not obliged to confine themselves to the mere pecuniary loss, but may award exemplary damages in proportion to the malicious or insulting conduct of the deft. Although the plt. is not at liberty to prove several assaults under his pleading, in order to support a verdict, he may give them in evidence as evidence of malice, and thus increase the damages: 2 Ph. Ev. 194. The circumstances which accompany and give character to the assault, may be given in evidence to enhance the damages: Bracegirdle v. Orford, 2 M. & S. 77. Time and place, when and

where the assault was committed, may frequently enhance the damages : 3 Wils. 19. Heath, J., observed, in Merest v. Harvey, 3 Taunt. 442, "It goes to prevent the practice of duelling, if juries are permitted to punish insult by exemplary damages: Bracegirdle v. Orford, 2 M. & S. 77. In a joint action against several deft.'s, the damages cannot be severed, so as to give more damages against one than the other; but a verdict may be given against both to the amount which the jury think the most culpable ought to pay: Brown v. Allen & or., 4 Esp. Rep. 158; Lowfield v. Bancroft, Str. 910; Sel. N. P. 39. And the plt. can have but one satisfaction in the damages, though the assault and battery be committed by several, and though the action be brought either jointly or severally: 11 Co. 67.; Cro. J. 118: ante, 96, as to judgment recovered, and post, that title. As to the proof of admissions by co-trespassers, vide ante, 52. Where there has been a maihem or wounding, the court may, upon view, increase the damages: Cooke v. Beal, 1 Ld. Raym. 176, *3 Salk. 115, s. c. But upon a motion to increase the damages super visum vulneris, it should be proved to be the same wound for which the damages were given, but the court will not allow fresh evidence to be adduced: B. N. P. 21. On a view of the party and examination of the surgeon ore tenus in court, the damages were increased from £11 14s. to £50: Burton v. Baynes, Barn. 153. But, where the judge who tries the cause is satisfied with the verdict, the court will not increase the damages: Brown v. Seymour, 1 Wils. 5.

[*106]

When there is no plea of the general issue, deft. having admitted the facts stated in the declaration, usually begins, and in such case he is entitled to the general reply.

General Issue.] Under this plea deft. may give in evidence any matter denying the facts stated in the pleadings, showing he was not the trespasser, and that no assault was committed. Matters of excuse, as we have seen, may be given in evidence under this plea, but not matters in justification, which must be specially pleaded, unless in some actions against justices of the peace and other public officers: see "Justices of Peace," "Officer," &c.: as, by proving what was said at the time, to show the intention or object of the parties, for every thing which passes at the time is part of the transaction on which the plt.'s action is founded: B. N. P. 17. Deft. may extract this evidence by the cross-examination of witnesses: Moore v. Adam, 2 Chit. Rep. 198. Where, in an action for an assault and battery, and not guilty pleaded, evidence was offered that the battery was given by way of punishment for misbehaviour on board the ship of which the deft. was captain, and it was insisted that the conduct of the deft., at the time of the assault, being necessarily in evidence, proved that misbehaviour, Lord Eldon, C. J., was of opinion, that as there was no justification pleaded, the jury should give damages to the amount of the injury suffered, without less-. ening them on account of the circumstances under which it was inflictVOL. I.

16

ed; and the Court of Common Pleas were of opinion that this direction was right: Watson v. Christie, 2 B. & P. 224. In an action of trespass for an assault which took place amongst the multitude, the court granted a rule that plt. should disclose his place of residence and occupation to the defts.: Johnson v. Birley, 5 B. & A. 540, 1 D. & R. 174, s. c.

Plaintiff's first Assault.] Under this plea, deft. will be bound to show that plt. committed the first assault, and that it was such as to require the deft.'s self-defence, and the consequent assault on plt. The law will permit any degree of violence to be justified, if it be necessary for the safety of the deft.: Cockcroft v. Smith, Salk. 642; 1 Ins. 282, b. 283, a. However, every assault will not justify every battery; and it is matter of evidence whether the assault were proportionable to the battery; and so, though son assault is a good plea in maihem, it must appear that the assault was in some degree proportionable to the maihem: ib. B. N. P. 18; 1 Sid. 246. If son assault demesne be pleaded without the general issue, and the declaration confines the plt. to the proof of one assault only, ante, 104, the deft. may prove the plt.'s assault on him to have taken place at any day before the action brought, and is not confined to that laid in the declaration; and, if the plaintiff cannot answer the assault of that day, he will have a verdict against him, for he is not allowed to go into evidence of an assault or battery at another day or place, 1 Esp. Dig. 340; but this is not the case where the declaration comprises more than one assault, or when the general issue is pleaded with the justification of son assault, for then the deft. is bound to justify the assault proved: Brownl. 233.

Moderate Correction.] *A justification on the ground of moderate correction of a servant or apprentice, &c., must be proved by evidence, [*107] though plaintiff is such servant or apprentice. If there be any writ

ten contract of hiring between plt. and deft., the same should be produced, and proved in the usual way; if not, the plt.'s retainer must be proved by other means. If the justification be against an apprentice, the indenture of apprenticeship should be produced and proved. Evidence of the plt.'s faults must be adduced, which must be sufficient to warrant the assault in question. In an action at the suit of a seaman for an assault, which deft. justified on account of disobedience, &c., if plt. was found guilty of it by a court martial, the sentence should be fully proved as well as pleaded, as an estoppel against plt.'s disputing the fact of disobedience, &c.: Hannaford v. Hunn, 2 C. & P. 148.

Defence of Relative, Servant, &c.] The facts of relationship or service must be proved; see post, title "Seduction." Also, that deft.'s interference was necessary for deft. See evidence, supra, under "SelfDefence," 106.

To Preserve the Peace.] The facts stated in the plea must be fully proved, especially that the king's peace was then being broken, or about to be so.