cart be wilfully driven against the carriage of another, by which bodily injury is done to those within it; or if a drunken man be wilfully pushed against the complainant (q); but never where the act is merely the result of accident, or an injury is done in an amicable contest (if lawful), as in wrestling (r). An assault may also be committed by exposing a servant of tender years to the inclemency of the weather (s), by taking indecent liberties with a female pupil of thirteen years of age, without her consent, though she may not offer actual resistance (†); and even by a medical practitioner who wantonly strips a female under false pretence that he cannot otherwise judge of her illness, even though she, under such impression, acquiesces (u). Cases where a Battery is no Offence.]-There are many cases, however, in which a battery is no offence. Thus, whenever a man is first assaulted, he may lawfully strike with a violence not exceeding that which appears necessary for the defence of his person; though he cannot justify a battery manifestly excessive by setting up the first assault from his adversary (v). So he may remove a trespasser from his land, after requesting him to depart; and even without such request, where the party is proceeding to acts of destruction and violence, or is forcibly removing goods (w). The use of necessary force in exccuting legal process on the person, and for frustrating an attempt to escape, may also, at all times, be justified; but the force must be necessary and not wanton (x). And there are relationships which justify a battery in defence of another; thus, a husband may justify a battery in defence of a wife; a wife in defence of her husband; a parent in defence of his child; a child in defence of his parent; a master in defence of his servant; and a servant in defence of his master (y). But it has been said, that a servant cannot justify beat for common assault. Held an assault (8) R. v. Ridley, 2 Campb. 650, 653. ing another in defence of his master's son, though he were commanded to do so by his master, because he is not a servant to the son; and that a tenant may not beat another in defence of his landlord (z). A battery may also be justified when done in the way of domestic correction by a party having authority to employ it; as if a father correct his infant son; a schoolmaster his scholar; or a master his apprentice; provided the punishment be moderate, and the instrument of correction proper (a). And it has been holden, that an officer of the army may justify even a wounding, if done for disobedience of orders; and that a sentence of a council of war in his favour, on the petition of the soldier wounded, will conclusively entitle him to an acquittal (b). Legal Remedies for Assaults on one or more.]-It was formerly thought that a man could not be indicted for assaulting two persons in one charge; but the contrary is now ruled (c). Where the pro secutor complains of several assaults, he may include them in one indictment, inserting counts applicable to each; and may give evidence of all at the trial. A party assaulted not only has his option, either to proceed civilly or to indict, but he may take both courses (d); although such a proceeding would probably influence both the damages and the sentence; or he may seek the summary remedy given by 9 G. IV. c. 31, s. 27: by which, “ where any person shall unlawfully assault or beat any other person, it is 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), 51.; which fine shall be paid to some one of the overseers of the poor, or to some other officer of the parish, township, or place in which the offence shall have been committed, to be by such overseer or officer paid over to the use of the general rate of the county, riding, or division, in which such parish, &c. shall be situated, whether the same shall or shall not contribute to such general rate; and the evidence of any inhabitant of the county, &c. shall be admitted in proof of the offence, notwithstanding such application of the fine incurred thereby; and if such fine as shall be awarded by the said (z) Hawk. B. 1, c. 60, s. 24. (a) Ibid. (b) Lane v. Hegberg, Bul. N. P. 19. (c) R. v. Benfield et al. 2 Burr. 984. (d) Jones v. Clay, 1 B. & P. 191. justices, 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 offender to the common gaol or house of correction, there to be imprisoned for any term not exceeding two calendar months, unless such fine or costs be sooner paid; but if the justices, upon the hearing of any such case of assault or battery, shall deem the offence not to be proved, or shall find the assault and battery to have been 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" (e). Certificate of Dismissal of Complaint, or Payment on Conviction, a Bar to further Proceedings.]-By s. 28, it is enacted, "That if any person, against whom any such complaint shall have been preferred for any common assault or battery, shall have obtained such certificate as aforesaid, or, having been convicted, shall have paid the whole amount adjudged to be paid under such conviction, or shall have suffered the imprisonment awarded for the non-payment thereof, in every such case he shall be released from all further or other proceedings, civil or criminal, for the same cause" (ƒ). Cases to which Summary Jurisdiction does not extend.]-But by s. 29 it is provided, "That in case the justices shall find the assault or battery complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is from any other circumstance a fit subject for a prosecution by indictment, they shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same manner as they would have done before the passing of this act; provided also that nothing herein contained shall authorize any justices of the peace to hear and determine any case of assault or battery in which any question shall arise as to the title to any lands, tenements, or hereditaments, or any interest therein, or (e) It should also state the grounds of the dismissal, in order that the party benefited might obtain protection in the event of any after proceedings, Skuse v. Davis, 7 D. P. C. 774; 2 P. & D. 550, S. C. See Anon. 1 B. & Adol. 382, next page. (f) But it must be specially pleaded to any action for the assault, Harding v. King, 6 C. & P. 427, Gurney, B. accruing therefrom, or as to any bankruptcy or insolvency, or any execution under the process of any court of justice" (g). Indictment for a Common Assault. That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one C. D. in the peace of God and our said Lady the Queen, then and there being, did make an assault; and him the said C. D. then and there did beat (h), wound, and ill-treat, and other wrongs to the said C. D. then and there did, against the peace, &c. Punishment.]—The punishment on conviction upon an indictment for a common assault and battery, is fine or imprisonment, or both; the former alone is the more usual. On such an indictment, the court have no power to order the defendant to be kept to hard labour, or subjected to personal correction. 2. Assaults aggravated by the Nature and Degree of Violence used.]-Assaults aggravated by the mere degree of violence do not differ in kind from common assaults, unless they amount to some felonious act, as stabbing, maiming, or wounding; nor can the court pass on the offender, in respect of such aggravation short of felony, the punishment of hard labour. In general, therefore, it is sufficient to indict in the common form already given, upon which the court may inquire into all the circumstances attendant on the offence, and take them into consideration in apportioning the punishment. But where the offence consists of great violence, or includes an imprisonment, or is accompanied by a challenge, or is part of a series of misconduct, it is usual to insert a count in the indictment, stating the aggravations: a few instances of such indictments are therefore given. Indictment for an Assault and beating out an Eye. That B. B. late of, &c. being a person of a wicked and malicious disposition, on, &c. with force and arms, at, &c. in and upon M. the wife of T. W. violently did make an assault (she the said M. in the peace of God and our said Lady the Queen, (g) On an application for a certiorari, to remove a conviction under this act, it appeared from the deposition that the defendant had laid hands on the complainant in an indecent manner; and it was contended, that if any assault was committed, the felonious intent excluded the jurisdiction of the justices; but the court of king's bench refused to interfere, as the felonious intent did not necessarily appear, and of its existence the magistrates were the proper judges; Anonymous, 1 B. & Adol. 382. (h) It is always usual to allege a battery; as the defendant may be convicted of an assault, if that only is proved. then and there being), and her the said M. then and there did beat, wound. and ill-treat, so that her life was greatly despaired of; and that he the said B. B. with his right hand the said M. in and upon the right eye of her the said M. then and there unlawfully, violently and maliciously did strike, by means whereof the said M. then and there, the use, sight, and benefit of her said right eye entirely lost and was deprived of, and also by means of the premises she the said M. became sick, weak, languid, and distempered, and remained so sick, weak, languid, and distempered for a long time, to wit, from thence until the day of taking this inquisition, and other wrongs to the said M. then and there violently and maliciously did, against the peace, &c. [Add a count for a common assault, as in the last precedent.] Indictment for assaulting and imprisoning until a Promissory Note was given. That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one D. E. in the peace of God and our said Lady the Queen then and there being, did make an assault, and him the said D. E. then and there did beat, wound, and ill-treat, so that his life was greatly despaired of; and that he the said A. B. him and the said D. E. then and there with force and arms falsely, unlawfully, and injuriously, and against the will of the said D. E. and against the laws of this realm, without any legal warrant, authority, or justifiable cause, did imprison and detain in the dwellinghouse of one F. G. there situate, for the space of six hours and upwards, and until the said D. E. in order to be released from the said imprisonment, did sign and deliver to the said A. B. a promissory note under his hand, whereby he the said D. E. promised to pay unto the said A. B. six months after the date thereof, the sum of twenty pounds for value received; although he the said D. E. had received no valuable consideration for the said promissory note: and other wrong to him the said D. E. he the said A. B. then and there unlawfully and injuriously did, to the great damage of the said D. E. and against the peace, &c. [Add a count for a common assault.] Indictment for a violent Assault upon a Woman with Child, whereby she was delivered of a dead Child. That A. B. late of, &c. on, &c. with force and arms, at, &c. that is to say in the dwelling-house of one D. E. there situate, in and upon F. the wife of the said D. E. she being then pregnant with child, and in the peace of God and our said Lady the Queen, unlawfully, violently, and injuriously did make an assault, and her the said F. then and there did beat, wound, and ill-treat; and that he the said A. B. with a certain wooden table called a card-table, which he the said A. B. then and there lifted up in both his hands, her the said F. in and upon the belly and stomach of her the said F. then and there unlawfully, violently, and injuriously did several times strike and beat, thereby giving the said F. in and upon her said belly and stomach several grievous and dangerous bruises, by reason and means of which said striking and beating of her the said F. as aforesaid, and the bruises she the said F. received thereby, she the said F. afterwards, to wit, on, &c. in the same year, |