What does not amount to an assault-lawful chastisement.] If a parent in a reasonable manner chastise his child, or a master his servamt (1), being actually his servant at the time, or a schoolmaster his scholar (2), or a gaoler his prisoner, or a husband his wife, or if one confine a friend who is mad, and bind and beat him, in such circumstances it is no assault. Hawk. P. C. b. 1, c. 30, s. 23. Com. Dig. Pleader, (3 M. 13.) A defendant may justify even a mayhem, if done by him as an officer of the army for disobedience of orders, and he may give in evidence the sentence of a council of war, upon a petition against him by the plaintiff; and if by the sentence the petition is dismissed, it will be conclusive evidence in favor of the defendant. Lane v. Degberg, B. N. P. 19. In all cases of chastisement it must, in order to be justifiable, appear to have been reasonable. 1 East, P. C. 406; and see post, title, Murder.

What does not amount to an assault-self-defence.] A blow or other violence necessary for the defence of a man's person against the violence of another will not constitute a battery. Thus if A. lift up his stick and offer to strike B., it is a sufficient assault to justify B. in striking A., for he need not stay till A. has actually struck him. B. N. P. 18. But every assault will not justify every battery, and it is matter of evidence whether the assault was proportionable to the battery; an assault may [*261] indeed be of such a nature as to justify a mayhem; but where it appeared that A. had lifted the form upon which B. sat, whereby the latter fell, it was held no justification for B.'s biting off A.'s finger. B. N. P. 18. In cases of assault, as in other cases of trespass, the party ought not in the first instance to beat the assailant, unless the attack is made with such violence as to render the battery necessary. Weaver v. Bush, 8 T. R. 78; 1 Russell, 609. Where a man strikes at another within a distance capable of the latter being struck, nature prompts the party struck at to resist, and he is justifyed in using such a degree of force as will prevent a repetition. Per Parke, B., Anon. 2 Lewin, C. C. 48.

The rule on this point is well laid down by a writer on Scotch law, "though fully justified in retaliating, the party must not carry his resentment such a length as to become the assailant in his turn, as by continuing to beat the aggressor after he has been disabled, or has submitted, or by using a lethal or ponderous weapon, as a knife, poker, hatchet, or hammer, against a fist, or cane, or in general pushing his advantage, in point of strength, or weapon, to the uttermost. In such cases the defence degenerates into aggression, and the original assailant is entitled to demand punishment for the new assault committed on him after his original attack had been duly chastised." Alison's Princ. Cr. Law of Scot. 177; 1 Hume, 335 (3).

What does not amount to an assault—interference to prevent breach of the peace, &c.] A man may justify an assault and battery, in preventing the commission of a felony or breach of the peace, or in the suppression of a riot, &c., as if he force a sword from one who offers to kill

(1) A master has no right to correct his hired servant. Commonwealth v. Baird, 1Ashmead, 267. The authority of the master to correct his apprentice is personal. People v. Phillips, 1 Wheeler's C. C. 159.

(2) Morris's case, 1 Rogers' Rec. 53.

(3) State v. Wood, 1 Bay. 282. Elliott v. Brown, 2 Wend. 497.

another therewith, or gently lay his hands upon another, and thereby stay him from inciting a dog against a third person. Hawk. P. C. b. 1, c. 60, s. 23; 1 Russell, 608; Com. Dig. Pleader, (3 M. 16.) See Timothy v. Simpson, 1 C. M. and R. 757.

Although where there is an actual assault, any one may interfere between the parties to prevent a further breach of the peace, and may justify an assault in so doing, yet a further privilege is given to persons standing in a particular relation. Thus in the case of husband and wife, where the latter is charged with a battery, it is a justification for her that A. B., the person struck, was going to wound her husband, and that she committed the assault to defend him, and prevent A. B. from beating him. B. N. P. 48; 1 Lord Raym. 62. So the husband may justify a battery in defence of his wife. In like manner, a child may justify any assault in defence of his parent. B. N. P. 18; Hawk. P. C. b. 1, c. 60, s. 23.

Though a servant may justify an assault in defence of his master, yet it has been said that a man cannot justify an assault in defence of his servant, because he may have an action per quod servitium amisit; but the servant can have no action for an assault upon his master. Leward v. Baseley, 1 Lord Raym. 62; 1 Salk. 407; B. N. P. 18. The reason ap[*262] pears to be an insufficient one, since it would be equally applicable to the case of a husband committing an assault in defence of his wife, for an injury to whom an action per quod consortium amisit will lie. Hawkins, though he states that there are opinions to the contrary, lays down the rule as including the case of a master committing an assault in defence of his servant. Hawk. P. C. b. 1, c. 60, ss. 23, 24. And this also was the opinion of Lord Mansfield, "I cannot say," he observes, "that a master interposing when his servant is assaulted, is not justifiable under the circumstances, as well as a servant interposing for his master. rests on the relation between master and servant." Tickell v. Read, Lofft. 215; 1 Russell, 608. A servant cannot, as it seems, justify an assault in defence of his master's son. Hawk. P. C. b. 1, c. 60, s. 24; 1 Russell, 609. Nor a tenant in defence of his landlord. Leward v. Baseley, 1 Lord Raym. 62.

It

What does not amount to an assault-defence of possession.] A man may justify an assault and battery in defence of his lands or goods, or of the goods of another delivered to him to be kept. Hawk. P. C. b. 1, c. 60, s. 23 (1). In these cases, unless the trespass is accompanied with violence, the owner of the land will not be justified in assaulting the trespasser in the first instance; but should request him to depart or desist, and if he refuses, should gently lay hands on him for the purpose of removing him, and if he resist with force, then force may be used in return by the owner, sufficient to effect his expulsion (2). Weaver v. Bush, 8 T. R. 78; 2 Roll. Ab. 548; 1 East, P. C. 406; B. N. P. 19. But it is otherwise, if the trespasser enter the close with violence, in which case the owner may, without a previous request to depart, use violence in re

(1) A person, who has purchased a ticket for a public ball, has no right to assault the master, should he refuse him admittance. Simon's case, 3 Rogers, 39.

(2) The force used must not exceed the necessity of the case. Baldwin v. Haydon & al., 6 Conn. 453. State v. Lazarus, 1 Rep. Const. Ct. 34. Wartrous v. Steel, 4 Verm. 629. Shain v. Markham, 4 J. J. Marsh. 578.

turn, in the first instance. Green v. Goddard, Salk. 641; Tullay v. Read, 1 C. and P. 6 (a); B. N. P. 19. But by this must be understood a force proportioned to the violence of the trespasser, and only for the purpose of subduing his violence. See 1 Russell, 609, (n.) "A civil trespass," says Holroyd J., "will not justify the firing a pistol at the trespasser, in sudden resentment or anger. If a person takes forcible possession of another's close, so as to be guilty of a breach of the peace, it is more than a trespass; so, if a man with force invades and enters into the dwelling of another. But a man is not authorized to fire a pistol on every invasion or intrusion into his house. He ought, if he has a reasonable opportunity, to endeavor to remove the trespasser without having recourse to the last extremity." Meade's case, 1 Lewin, C. C. 185, stated post. It seems that in all cases of resistance to trespassers, the party resisting will be guilty in law of an assault and battery, if he resists with such violence that it would, if death had ensued, have been manslaughter. Vide post, titles Manslaughter and Murder.

What does not amount to an assault-execution of process by officers, &c.] A peace officer, or sheriff's officer may justify laying hands upon a party to arrest him. 2 Roll. Ab. 546. 2 Roll. Ab. 546. But a *sheriff's [*263] officer, in order to justify this, must have a writ or warrant. Harrison v. Hodgson, 10 B. and C. 445 (b). A peace officer, like others, must only use the degree of force necessary for the occasion, and will be answerable for the excess; as where a constable had apprehended a boy fighting, and a by-stander said, "you ought not to handcuff the boy," upon which the constable gave him a blow with a stick, and took him to the watchhouse : in an action by the party struck, against the constable, it appeared that the plaintiff had placed himself before the defendant for the purpose of preventing him from taking the boy to the watchhouse. Burrough, J., said, "there can be no doubt that the constables were right in stopping the fight, and would be justified in apprehending any one who aided or abetted those who fought, but it did not appear that the defendant did either. If they thought that as the defendant was apprehending the boy, the plaintiff placed himself before the defendant to hinder him from doing so, that would justify the defendant in detaining the plaintiff at the watchhouse, but not in beating him; but if the plaintiff only said, 'you have no right to handcuff the boy,' the defendant was clearly a wrongdoer as to the whole." Levy v. Edwards, 1 C. and P. 40 (c). So, where one of the marshals of the city of London, whose duty it was on the days of public meetings in the Guildhall, to see that a passage was kept for members of the corporation, directed a person in front of the crowd to stand back, and on being told by him that he could not, for those behind him, struck him immediately on the face, saying, that he would make him, it was ruled that in so doing, he exceeded his authority; that he should have confined himself to the use of pressure, and that he should have waited a short time, to afford an opportunity for removing the party in a more peaceable way. Imason r. Cope, 5 C. and P. 193 (d).

A coroner; Garnett v. Ferrand, 6 B. and C. 611 (e); and a magistrate upon a preliminary inquiry; Cox v. Coleridge, 1 B. and C. 37 (ƒ); may

(a) Eng. Com. L. Rep. xi. 297. (b) Id. xxi. 109. (c) Id. xi. 306. (d) Id. xxiv. 274. (e) Id. xiii. 237. (ƒ) Id. viii. 20.

justify a forcible exclusion of a party from the room, even although he be the attorney of the person accused. Where, however, the inquiry is of at final and judicial nature, all persons have a right to be present. Daubney v. Cooper, 10 B. and C. 237 (a).

Summary conviction bar to an indictment for assault.] A summary. conviction under the stat. 9 Geo. 4, c. 31, s. 27, is a bar to an indictment for the same assault. By sec. 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, (a certificate that the justices deem the offence not to be proved, or to have been justified, or so trifling as not to merit any punishment, and accordingly dismiss the complaint) or having been convicted, shall have paid the whole amount adjudged to be paid, or have suffered the punishment awarded for non-payment; in every such case, he shall be released from all further or other proceedings, civil or criminal for the same cause."

[*264] By sec. 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 thereon, and shall deal with the case in all respects in the same manner as they would have done before the passing of the act provided also, that nothing therein contained shall authorise any justice 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 accruing therefrom, or as to any bankruptcy, insolvency, or any execution, under the process of any court of justice.'

It seems where the assault is with intent to coinmit a felony, it is optional with the justices whether they will convict the offender of a common assault, or direct him to be indicted. Where the charge was of such an assault, and the magistrates proceeded to convict, on an application for a certiorari to quash the conviction, Lord Tenterden said that the conviction was for a common assault, and that the act gave the justices a discretionary power to judge whether the charge amounted in substance to more than a common assault. Parke, J., observed, that at all events a certiorari could hardly be granted, for if the magistrates had no jurisdiction, the conviction was a nullity. Virgil's case, 1 Lewin, C. C. 16, (n.) And see Anon. 1 B. and Ad. 382 (b).

Conviction of an assault upon an indictment for felony.] By the recent act amending the law relating to offences against the person, 7 Wm. 4 and 1 Vict. c. 85, s. 11, it is enacted, "that on the trial of any person for any of the offences hereinbefore mentioned, or for any felony whatever, where the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony, and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding; and when such verdict shall be found, the court shall have power to imprison the person so found guilty of an assault for any term not exceeding three years."

(a) Eng. Com. L. Rep. xxi. 64. (b) Id. xx. 405.

This section applies to offences committed before it came into operation. Hagan's case, 8 C. and P. 167 (a). A person indicted for bestiality, cannot be found guilty of an assault under the above clause; but if acquitted of the capital charge, he may be detained in custody, and indicted for a misdemeanor in attempting to commit a felony. Eaton's case, 8 C. and P. 417 (b).

Where a man, indicted for a rape, had had connection with a married woman, to which she consented, under the belief that he was her husband, he was acquitted of the capital offence, and found guilty of an assault under this section. Williams's case, 8 C. and P. 286 (c). See also Saunders's case, Ib. 265 (d).

But the offence of carnally knowing and abusing a female child under ten years of age, is not a felony which includes an assault within the above statute, even although it be stated in the indictment *that the [*265 ] prisoner made an assault on the child; and the prisoner must either be found guilty of the whole charge, or acquitted. Per Patteson, J., Banks's case, 8 C. and P. 574 (e). So an attempt to commit the misdemeanor of having carnal knowledge of a girl between ten and twelve years of age, is not an assault within the act. Meredith's case, Ib. 589 (ƒ).

Where a prisoner was indicted under the 7 Wm. 4 and 1 Vict. c. 85, s. 3, for a highway robbery, accompanied with violence, and the jury returned a verdict finding the prisoner guilty of an assault, but "without any intention to commit any felony." It was held by Park, J., and Alderson, B., that such special finding did not take the case out of the operation of the 7 Wm. 4 and 1 Vict. c. 85, s. 11. Ellis's case, 8 C. and P. 654 (g).

Where a party is convicted of an assault under the above enactment, and sentenced to imprisonment, hard labor may form a part of the sentence. Williams's case, and Ellis's case, supra.

Under this head are comprised certain assaults, to which, being of an aggravated character, the legislature has attached additional punishments. Various other enactments of the same nature will be found stated in a subsequent part of this work in connection with the offence, with intent to commit which, the assault is charged to have been made.

In prosecuting for the offence of an aggravated assault, the statute

(a) Eng. Com. L. Rep. xxxiv. 338. (b) Id. 457. xxxiv. 531. (ƒ) Id. 539.

(c) Id. 392. (d) Id. 383. (e) Id. (g) Id. 570.