act; and that after the commission of such trespasses and before the commencement of this suit, to wit, on [&c.], upon complaint thereof before them made by the plaintiff accordiug the said statute, the said — appeared before, Esquire, Mayor, and, Esquire, then being justices of our lady the queen, assigned to keep the peace of our said lady the queen in and for the borough of in the county of and wherein the said trespasses were committed, and to hear and determine divers offences and misdemeanors therein committed, to answer the said trespasses, and the said defendant was by them the said so being such justices as aforesaid, after hearing the said complaint of the plaintiff on the prosecution and at the instance of the plaintiff, then and there, under the hands and seals of the said - and convicted of the trespasses in the said declaration did on that occasion also under

mentioned; and the said

and

and

their hands and seals by their said conviction adjudge the said — for such trespasses to forfeit and pay the sum of £2, and also to pay 4s. 6d. for costs; and the said and did also thereby then and there direct that the said sum of £2 should be paid unto, the treasurer of the said borough, to be by him applied according to the directions of the statute made and passed in the session of parliament holden in the fifth and sixth years of the reign of his late majesty King William the Fourth, intituled "An Act to provide for the Regulation of Municipal Corporations in England and Wales;" and the said and did also thereby then and there order that the said sum of 4s. 6d. should be paid to the plaintiff; and the said — avers that he did afterwards, to wit, on the day and year last aforesaid, pay the said sum of £2 unto the said and did also then pay the said sum of 4s. 6d. to the plaintiff according to the said conviction and adjudication, whereby and by force of the statute in such case made and provided the said then became and still is released from all further and other proceedings for the said trespasses; and this the said is ready to verify, &c.

DEFENCE OF THE PERSON.

1. Son Assault Demesne. (g)

1. Not guilty, ante, 714,] 2. And for a further plea in this behalf (h) the defendant says that the plaintiff, just before the said time when &c., to wit,

(g) This form was held good on special demurrer; Wise v. Hodsall, 11 A. & E. 816; see Steph.; 3 Chit. Pl. Index in voc. and notes; Com. Dig. Pleader, 3 M. 15: 1 Saund. 296, note. A wounding may be justified in self defence; but in defence of the possession of property the plea must be only molliter manus imposuit, unless there be re

sistance &c. on the plaintiff's part; id.; Alder son v. Waistell, 1 C. & K. 358. If a man be attacked, he has a right to defend himself by striking blows in return, but not to revenge by subsequently striking an unnecessary blow; Reg. v. Driscoll, 1 Car. & M. 214.

(h) If the plea be pleaded to part only of the declaration, it must be here confined ac

on the day and year in the declaration mentioned, with force and arms assaulted him the defendant, and would then have beat, bruised and otherwise. illtreated him if he had not immediately defended himself against the plaintiff, wherefore the defendant did then defend himself against the plaintiff, as he lawfully might for the cause aforesaid; and the defendant further saith that if any hurt or damage then happened or was occasioned to the plaintiff, the same happened and was occasioned by the said assault of him the plaintiff upon the defendant and in the necessary defence of himself against the plaintiff; and this the defendant is ready to verify.

2. Plea that the Defendant assaulted the Plaintiff in endeavouring to prevent him from assaulting, &c. a third Person, and to preserve the Peace. (i)

1. Not guilty, ante, 714.] 2. And for a further plea in this behalf as to the said assaulting, beating and illtreating (k) the plaintiff as in the said [first count of the said] declaration mentioned, the defendant says that the paintiff, just before the said time when &c. in the said [first count of the said] declaration mentioned, to wit, on the day and year [in that count] above mentioned, with force and arms &c. had made an assault upon one E. F. (1) and was then and at the said time when &c. beating and illtreating the said E. F., in breach of the peace of our said lady the queen, wherefore the defendant at the said time when &c., to preserve the peace of our said lady the queen, and to part the plaintiff from, and to prevent him from further beating and illtreating, the said E. F., gently laid his hands upon the plaintiff as he lawfully might for the cause aforesaid, which are the same assaulting, beating and illtreating the plaintiff in the said [first count of the said] declaration mentioned, and whereof the plaintiff hath above thereof complained against the defendant; and this the defendant is ready to verify, &c.

cordingly. Take care that the plea be not made to answer mere matter of aggravation; see an instance, Griffiths v. Dunnett, 8 Scott, N. R. 836. See notes (s) and (y), post. Where there are several assaults there should be a separate plea of son assault demesne to each count, if each assault be justified in selfdefence. Declaration, that defendant assaulted plaintiff and wrenched a stick from his hands, and with the said stick and with his fists gave the plaintiff blows, &c. Plea, as to the assaulting the plaintiff with the stick and with his fists giving him blows, &c. son assault demesne. Held, after verdict, that the plea sufficiently justified the battery with the stick as well as the assault; Blunt v. Beau

PART II.

mont, 2 C. M. & R. 412.

(i) It is said to have been decided that merely to collar a man to prevent his fighting with another is an assault or battery; Griffin v. Parsons, 1 Sel. N. P. 27, (n.)

(k) Take care not to plead this plea to the whole of a count, if it contain allegations which the defendant cannot justify by the plea; see notes (g) and (h), supra.

(1) See another similar form, stating instead of the name here, "a certain boy whose name is to the defendants unknown;" and replication that the boy was plaintiff's son, and that he was moderately correcting him, Winterbourne v. Brooks, 2 Čar. & K. 16.

3 B

3. Plea that the Defendant assaulted the Plaintiff in Defence of the Defendant's Father, or Son, &c., whom the Plaintiff had attacked. (m)

1. Not guilty, ante, 714.] 2. And for a further plea in this behalf, [as to the said assaulting, beating, bruising, wounding and illtreating the plaintiff, and as to the rending, tearing, damaging and spoiling the wearing apparel of the plaintiff, (n)] the defendant saith that the plaintiff, just before the said time when &c., to wit, on the day and year in that behalf above mentioned, with force and arms, &c. made an assault upon E. F., then being the father [or "mother," or "wife," "son," " daughter," "servant," or "master," as the case may be] of the defendant, and would then have beat, bruised and illtreated him the said E. F., if he the defendant had not immediately defended the said E. F., wherefore he the defendant did then defend the said E. F. against the plaintiff as he lawfully might for the cause aforesaid, and in so doing did necessarily and unavoidably (0) a little beat, bruise, wound and illtreat the plaintiff, and rend, tear, damage and spoil the said wearing apparel in the said [first count] mentioned, doing no unnecessary damage to the plaintiff on the occasion aforesaid; and so the defendant says that the alleged hurt and damage that then happened to the plaintiff and his said wearing apparel were occasioned by the said assault so made by the plaintiff upon the said E. F., and in the necessary defence of the said E. F. against the plaintiff, which are the same alleged trespasses in the introductory part of this plea mentioned, and whereof the plaintiff hath above thereof complained against the defendant; and this the defendant is ready to verify, &c.

4. Replication De Injuria.

See form, ante, 719; but reply excessive violence as in next form, where it can be established, and the defendant may probably be able to prove that the plaintiff began the affiay. As to new assigning, see ante, 718, obs.; injra, 736.

5. Replication of Excess, to a Plea of son Assault Demesne. (p) And as to the said [second] plea, the plaintiff saith that the defendant at the said time when, &c. of his own wrong committed the trespasses in the said declaration mentioned to a greater degree and extent, and with more

(m) See Com. Dig. Pleader, 3 M. 15; Buru's J., tit. "Assault."

(n) See note (k), supra, 723.

(0) See Barfoot v. Reynolds, 2 Stra. 953. (p) Where the plaintiff does not proceed for a totally different trespass to that attempted to be justified, but contends that the

defendant, though justified to some extent, was guilty of excess, he should not reply de injuria or new assign, but reply as above; see form and rejoinder, Bone v. Daw, 3 Ad. & E. 711; and observations of Patteson, J., id.; Penn v. Ward, 2 C. M. & R. 338; see the form, post, 736.

force and violence than was necessary for the purpose in the said [second] plea mentioned, in manner and form as the plaintiff hath above complained; and this the plaintiff is ready to verify, &c.

DEFENCE OF THE POSSESSION OF PERSONALTY.

Justification of an Assault, &c. in resisting a Rescue of Cattle distrained damage feasant. (q)

1. Not guilty, ante, 714.] 2. And for a further plea in this behalf, the defendant says that at the time of the distress hereinafter mentioned the defendant was lawfully possessed of a certain close called, situate in the parish of ——, in the county of, and that before the said time, when &c., to wit, on the day and year in the declaration mentioned, divers cattle, to wit, one gelding and one mare, were in the said close doing damage there; wherefore the defendant, before the said time when &c., to wit, on the day and year aforesaid, took the said cattle in the said close so doing damage there in the name of a distress, and drove the same cattle out of the same close towards the common pound there, to wit, in the county of aforesaid, in order to impound the said cattle therein as a distress for the damage so by them done in the said close; and the defendant further says, that whilst he was driving the said cattle so distrained towards the said common pound, and before the said cattle were impounded therein, to wit, at the said time when &c., the plaintiff, with force and arms &c., and with a strong hand did endeavour, as much as in him lay, to rescue and take the said cattle so distrained as aforesaid out of the custody and possession of the defendant, against the will of the defendant; whereupon the defendant did then and there, for the preservation of the said distress and in defence of his possession thereof, gently lay his hands on the plaintiff and did resist and oppose the plaintiff in order to prevent him from rescuing the said distress, as it. was lawful for him the defendant to do, which are the supposed trespasses in the [introductory part of this plea] mentioned, and whereof the plaintiff hath above complained against the defendant; and this he is ready to verify, &c.

(q) See Field v. Adams, 12 A. & E. 649; and see another plea justifying in defence of

possession of a steam vessel, Dean v. Hogg, 6 C. & P. 54.

DEFENCE OF A HOUSE, &c.

1. Plea to an Assault that Plaintiff was unlawfully in a House, and refused to leave when requested, whereupon Defendant as Servant of the Occupier assaulted the Defendant in removing him. (r) OBS. In pleas of this kind care must be taken that the cause or ground of justification warrants or covers all the trespasses charged in the declaration to which the plea is pleaded. A wounding cannot be justified merely in defence of possession; Gregory v. Hill, 8 T. R. 299; Com. Dig. "Pleader," 3 M. 16; Oakes v. Wood, 2 M. & W. 791. Aliter, if plaintiff attempt to enter the house with force, or assault the defendant or his family in attempting to remove him; ibid. An imprisonment can only be justified, if, being in the defendant's house, the plaintiff assault the defendant after being requested to leave, Reeve v. Taylor, 4 Nev. & Man. 469; Bone v. Daw, 3 A. & E. 711; or make an affray or other breach of the peace, (Timothy v. Simpson, 1 C. M. & R. 757; S. C. 6 C. & P. 499, cited ante, 717), continued in presence of the defendant, or which he has reasonable ground to expect the plaintiff will renew, Baynes v. Brewster, 2 Q. B. 375. See post, "Peace, Breach of," 744; otherwise the mere fact of a party refusing to leave a house when requested will not justify giving him in charge to a policeman, Wheeler v. Whiting, 9 C. & P. 269, unless his acts amount to a breach of the peace, Wooding v. Oxley, 9 C. & P.

A plea which professes to justify several assaults and false imprisonments laid in separate counts, must show distinct occasions upon which the defendant was justified in committing each particular trespass. Therefore in M'Curday v. Driscoll, 1 C. & M. 618, this plea was held bad, which was pleaded to several counts of the above description, and after justifying under process, alleged that the plaintiff forcibly resisted the execution of the process, wherefore the defendants, in order to arrest the plaintiff and to overcome his resistance, committed the trespasses. Bayley, B., observed, "There are six assaults and four imprisonments laid in the declaration; the party justifying is bound to cover the whole. I see no reason which you give for assaulting him six times. You profess to justify four imprisonments; you should have shown that circumstances existed by which you had a right to imprison him, whereupon you imprisoned him once; and then that such and such circumstances occurred whereby you had a right to imprison him again, wherefore you imprisoned him on the second occasion, and so throughout; but here you do not show any different occasions." On the other hand, it is sufficient to prove so much of a plea as substantially sustains the cause of justification, and covers the trespasses which the plea professes to answer. In Atkinson v. Warne, 1 C. M. & R. 827; 3 Dowl. 483, S. C., to a declaration for assault and imprisonment, the plea justified the apprehension of the plaintiff on a charge of felony, alleging his resistance, wherefore defendant beat him, &c. The evidence supported the justification as to the arrest for felony; but the plaintiff's resistance was not proved. The Court held that the verdict was right, the defendant having proved as much of his plea as was necessary to cover the declaration, and it not being necessary for him to prove what was unnecessarily alleged.

1. Not guilty, ante, 714.] And for a further plea in this behalf, [or if only part (s) of the declaration can be justified, say, "as to so much of the

(r) Piggott v. Kemp, 1 C. & M. 197. It was there held on special demurrer, that de injuria was a good replication to the above plea; see Bardons v. Selby, 1 C. & M. 500, ante, 718. But it would not be a good replication if the plaintiff showed title to, and not mere possession of the house, &c.; Vivian v. Jenkin, 3 Ad. & E. 741. Where the plaintiff relies on excessive violence on defendant's part, as an answer to the justifi

cation, he should new assign or reply such excess, ante, 724, Form 5. As to evidence to support this plea, Jelly v. Bradly, 1 C. & Marsh. 270.

(s) Of course this must be copied from the allegations of the declaration, taking care to exclude any circumstance (such as the imprisonment of the plaintiff) which the body of the plea will not justify; see post, notes (y) and (a).