Chap. II. Grounds for justifying assault. Assault in self defence. Assault in defence of property. An assault may be justified by the person committing it on any of the following grounds: 1. That it was in defence of his person. 2. That it was in defence of his property. 3. That it was in defence of his family or friends. 4. That it was committed under the authority of the crown for the sake of preserving the public peace. 5. That it was moderate correction by an authorised person. 6. By a magistrate's certificate under statute 24 & 25 Vict. c. 100, s. 45. Proof that the plaintiff first assaulted the defendant, who thereupon necessarily committed the alleged assault in his own defence, is a sufficient answer to an action for assault (x). Where the plaintiff lifted up his stick and offered to strike the defendant, it was held to be a sufficient provocation to justify the defendant in striking the plaintiff (y). So if A strikes B. and B. in the heat of the moment returns the blow with a stick, B. is justified in so doing (2). The assault justified must however be commensurate with the provocation given, for "a man cannot justify a maim for every assault, as if A. strike B., B. cannot justify the drawing his sword, and cutting off his hand, but it must be such an assault whereby in probability the life may be in danger" (a), and Holt, C.J., says a man ought not in the case of a small assault to give a violent and unsuitable return, for hitting a man a little blow with a little stick on the shoulder is not a reason for him to draw a sword, and cut and hew the other" (b). 66 The assault which is pleaded in justification must be committed in self-defence, and not some time after the danger arising from the first assault is passed, for a man must not lie by and then in revenge strike the one who first assaulted him (c). An assault may be justified in defence of a man's property. Thus if one man enters the house of another and refuses to leave when requested to do so by the owner of the house or his servants, the owner is justified in turning him out, provided he use no unnecessary violence (d). So where one man trespasses on the land (x) Co. Lit. 212 b. (y) Penn v. Ward, 2 C. M. & R. 338. (z) Blunt v. Beaumont, 2 C. M. & R. 412; Oakes v. Wood, 3 M. & W. 150. (a) Per. Cur., Cook v. Beal, 1 Ld. Raym. 177. (b) Cockcroft v. Smith, 11 Mod. 43. (c) Reg. v. Driscoll, Car. & M. 214; Holt, C.J., Cockcroft v. Smith, 11 Mod. 43. (d) Weaver v. Bush, 8 T. R. 78; Polkinhorn v. Wright, 8 Q. B. 197. of another, the occupier after requesting the trespasser to leave Chap. II. is justified in using force to remove him (e), and it has been held that the owner of land is justified, as against a trespasser, in making if necessary a forcible entry for recovering possession of his land (ƒ), although in this case the owner would be liable to an indictment for a breach of the peace under the statute of Richard II. (g) An assault may be justified in expelling an intruder from a select vestry meeting (h) or from a vestry room (i). No action for assault will lie against churchwardens for removing a person who is guilty of indecent conduct in church (j); nor against a landlord for turning a tenant out of his house after the expiration of the tenancy (k), nor against a railway company for removing a trespasser on their line (1); nor against justices for ejecting a person who is misconducting himself in Court (m), provided that in all these cases no unnecessary violence is used. Where a tradesman tickets goods at a certain price, he is not bound to sell them at the price ticketed; and if a customer refuses to leave the shop (after having been requested to do so) unless the goods are sold to him at the marked price, he may be turned out (n). If a person conducts himself in a disorderly manner in a public-house, and refuses to leave at the request of the landlord, the landlord is justified in forcibly ejecting him, and if the person resists and lays hand on the landlord, he renders himself liable to an action for assault (o). Where a person creates a disturbance in a public-house or private dwelling place and refuses to leave when requested to do so, the landlord or occupier is justified in authorising a policeman to put him out, but the policeman is not justified in taking him into custody, unless he sees some breach of the peace committed (p). The owner of goods may use necessary force to recover them when they have been wrongfully taken from him. Thus, where (e) Holmes v. Bagge, 1 E. & B. 782; 22 L. J. Q. B. 301. (f) Harvey v. Brydges, 14 M. & W. 437; Taylor v. Cole, 1 Smith, L. C. (Ex.). (g) See post, p. 67, "Forcible Entry." (h) Dobson v. Fussy, 7 Bing. 305. (i) Jackson v. Courtenay, 8 E. & B. 8; 28 L. J. Q. B. 37. (j) Hartley v. Cook, 9 Bing. 728. (k) Newton v. Harland, 1 M. & G. 644. (m) Collier v. Hicks, 2 B. & Ad. 663. (p) Wheeler v. Whiting, 9 C. & P. Chap. II. the defendant, a gamekeeper, committed an assault in an attempt to take from the plaintiff dead rabbits which he had refused to give up, and which he held without the consent of the defendant's master to whom they belonged, it was held that the defendant was justified in so acting (q). Assault in de A man has a right to use necessary force to protect his family, fence of family. friends, or neighbours from the violence of another (r). Assault by authority of crown. An assault committed by a person by authority of the crown, is an act of state for which he is not liable (s). Thus, where the plaintiff unlawfully attempted to rescue a distress taken by the defendant, under due legal process, it was held that the defendant was justified in using force to prevent him (t). An assault may also be excused on the ground that it was committed for the purpose of preserving the public peace. For instance a person is perfectly justified in laying hands on another engaged in an affray (u). A parent is justified in administering moderate and reasonable chastisement to his child (v). So likewise a schoolmaster may moderately chastise his scholar (x)," for the authority of the schoolmaster is, while it exists, the same as that of the parent. A parent when he places his child with a schoolmaster, delegates to him all his own authority, so far as it is necessary for the welfare of the child" (y). The captain of a merchant ship may inflict the punishment of flogging on a mutinous member of the crew (z). The 24 & 25 Vict. c. 100, s. 42, enacts that where any person shall unlawfully assault or beat any other person, two justices of the peace (a), upon complaint by or on behalf of the party aggrieved, may hear and determine such offence, and if the justices (s. 44), upon the hearing of any such case of assault or battery upon the merits, where the complaint was preferred by or on behalf of the party aggrieved, shall deem the offence not to be proved, or shall find the assault or battery to have been justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the Chap. II. 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, and (s. 45), if any person against whom any such complaint shall have been preferred, by or on behalf of the party aggrieved, shall have obtained such certificate, or having been convicted shall have paid the whole amount adjudged to be paid, or shall have suffered the imprisonment awarded, in every such case he shall be released from all further proceedings, civil or criminal, for the same cause (b). A defendant is entitled, on application, to a certificate under s. 44, ex debito justitia, and the granting or withholding it is not within the discretion of the justices (c). Should they refuse, a mandamus will lie to compel them to grant it (d). Such certificate is a bar, although the subsequent proceeding is for a felonious assault, as the transaction is the same (e). A conviction under this statute, before a police magistrate, can only be proved by the production of the record of the conviction, or an examined copy of it. Therefore, where a magistrate, after hearing a case of common assault, ordered the accused to enter into recognizances and pay the recognizance fee, but did not order him to be imprisoned or pay any fine, and an action having been. subsequently brought for the same assault, the magistrate's clerk stated in evidence the above facts, but no record of the proceedings was put in: it was held, first, that the above was not a conviction within the meaning of 24 & 25 Vict. c. 100, s. 45, and therefore not a bar to the action: and, secondly, that the conviction, if any, was not proved (ƒ). The certificate, if pleaded in bar to an action, must be shown to have been granted on one of the grounds specified in s. 44 (g). When the defendant assaulted the wife, and for such assault was fined by the justices under the 24 & 25 Vict. c. 100, and paid the fine, it was held that an action by the husband in respect of the conse (b) These sections are, almost verbatim, a re-enactment of the repealed statute, 9 Geo. 4, c. 31, ss. 27, 28, and therefore decisions under that act may be considered as equally applying to the present one. (e) Hancock v. Soames, 28 L. J. M. C. 196, overruling Reg. v. Robinson, 12 Ad. & E. 672. (d) Costar v. Hetherington, 1 El. & El. 802, 28 L. J. M. C. 198. (e) Reg. v. Elrington, 1 Smith & B. 688, 31 L. J. M. C. 14. (f) Hartley v. Hindmarsh, L. R. 1 C. P. 553. (g) Skuse v. Davis, 10 Ad. & E. 635. Chap. II. quential damage to himself by reason of the assault was barred under s. 45 (h). What constitutes an imprisonment. Constructive SECTION II.-FALSE IMPRISONMENT. False imprisonment is the illegal detention of a man against his will. It is not necessary that he should be actually confined in a common prison as "the confinement of the person in anywise, is an imprisonment. So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment" (i). Any restraint put upon the liberty of a person by an exercise imprisonment. of authority, though no actual force is used, is a constructive imprisonment. Thus, where a person was placed under restraint of a sheriff's officer, who held a writ of capias, it was held to amount to an arrest, though there was no actual contact (k). So, if a bailiff who has a process against one, says to him, when he is on horseback or in a coach, "you are my prisoner, I have a writ against you," upon which he submits, turns back, or goes with the bailiff, though the bailiff never touched him, yet it is an arrest because he submitted to process (1). When a person was not permitted to go from one room to another without being accompanied by a policeman, it was held to be a constructive imprisonment (m). Partial re straint not an imprisonment. Responsibility for imprisonment. Partial restraint of the liberty of a person does not constitute imprisonment, as where a man is prevented from going in a particular direction, or in all directions but one. Patteson, J., observes, "imprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring him" (n). Every person, unless acting under legal authority or from some special cause warranted by necessity, such as the arrest of a felon, is responsible for a wrongful imprisonment directed or (h) Masper and Wife v. Brown, 1 C. P. D. 97. As to the operation of the statute where the person assaulted subsequently dies from the effect of the assault, see Reg. v. Morris, L. R. 1 C. C. R. 90. (i) 4 Blackstone's Com. p. 147. 2 Inst. 589. (k) Grainger v. Hill, 4 Bing. N. C. 212. (7) Bullen's Nisi Prius, p. 62. (m) Warner v. Riddiford, 4 C. B. N. S. 180. (n) Bird v. Jones, 7 Q. B. 742. |