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a new assignment." (a) For, in such a case, the question is as to the degree and proportion of the beating to the assault. But if the plaintiff's answer to the plea of son assault demesne consists of an admission of the fact and a justification of it, this cannot, by the English authorities, be shown in evidence under the replication de injuria, but must always be specially replied. If the declaration contains but one count, to which son assault demesne is pleaded without the general issue, the defendant may give evidence of an assault by the plaintiff on any day previous to the day alleged in the declaration; and if the plaintiff cannot answer the assault so proved, the defendant will be entitled to a verdict.3 But if the general issue is pleaded, or the declaration contains charges of several assaults, the plaintiff is not thus restricted, and the defendant's evidence must apply to the assault proved.*

§ 96. Replication de injuria. In regard to the replication of de injuria, the general rule is, that, as it puts in issue only the matter alleged in the plea, nothing can be given in evidence under it which is beyond and out of the plea. The plaintiff cannot go into proof of new matter, tending to show that the defendant's plea, though true, does not justify the actual injury. He cannot, for example, show that the defendant, being in his house, abused his family and refused to depart, and, upon his gently laying hands on him to put him out, the defendant furiously assaulted and beat him. So, if the defendant justifies in defence of his master, the plaintiff cannot, under this issue, prove that his own assault of the master was justifiable. So, if the defendant, being a magistrate, justifies an assault and imprison

1 Curtis v. Carson, 2 N. H. 539. See, where the plea is moderate castigavit, Hannan v. Edes, 15 Mass. 347; or, molliter manus imposuit, Bennett v. Appleton, 25 Wend. 371. See also 1 Steph. N. P. 216, 220, 221; Dance v. Luce, 1 Keb. 884; s. C. Sid. 246; 1 Chitty on Pl. 512, n., 545, 627.

2 Penn v. Ward, 2 Cr. Mees. & Rosc. 338; Dale v. Wood, 7 J. B. Moore, 33 ; Pig. gott v. Kemp, 1 Cr. & Mees. 197; Selby v. Bardons, 3 B. & Ad. 1; 1 Cr. & Mees. 500; Bowen v. Parry, 1 C. & P. 394; Lamb v. Burnett, 1 Cr. & Jer. 291; 2 Chitty's Prec. 731, 732; Oakes v. Wood, 3 M. & W. 150.

* Randlé v. Webb, 1 Esp. 38; Gibson v. Fleming, 1 Har. & J. 483.
• Downs v. Skrymsher, Brownl. 233; Bull. N. P. 17; 1 Steph. N. P. 222.
6 King v. Phippard, Carth. 280.
6 Webber v. Liversuch, Peake's Ad. Cas. 51.

(a) It seems that the current of authori. demesne and the common-law replication, ty is still in the same direction. The de injuria, &c., the plaintiff could recover Court says in Steinmetz v. Kelly, 72 Ind. for the excess, no special replication being 442(a case decided in 1880), “It was, how. necessary. And see Brown v. Gordon, i ever, long ago settled, that in trespass for Gray (Mass.), 182 ; Mellen v. Thompson, assault and battery, on plea of son assault 32 Vt. 407. VOL II.


ment as a lawful commitment for a bailable offence, the plaintiff cannot show, under this issue, that sufficient bail was offered and refused. 1

§ 97. Moderate castigavit. To support the plea of moderate castigavit, the defendant must show that the plaintiff was his apprentice, by producing the indentures of apprenticeship. He must also produce evidence of misbehavior on the part of the plaintiff, sufficient to justify the correction given. The same rules apply where the relation is that of parent and child, or jailer and prisoner, or schoolmaster and scholar, or shipmaster and seaman. It must also be shown that the correction was reasonable and moderate; though in the case of shipmasters, if the chastisement was salutary and merited, and there was no cruelty, or use of improper weapons, the admiralty courts will give to the terms moderate correction" more latitude of interpretation.

§ 98. Molliter manus imposuit. Under the plea of molliter manus imposuit the matters justified are of great variety; but they will be found to fall under one of these general heads, namely, the prevention of some unlawful act, or resistance, for some lawful

If the force was applied to put the plaintiff out of the defendant's house, into which he had unlawfully entered, or to resist his unlawful attempt to enter by force, it is sufficient to show the unlawfulness of the entry, or of the attempt without showing a request to depart. But if the entry was lawful, as if the house were public, or, being private, if he entered upon leave, whether given expressly or tacitly and by usage, there it is necessary to show that he was requested to depart, and unlawfully refused so to do, before the application of force can be justified.5 And in all these cases, to make good the justification, it must appear that no more force was employed than the exigency rea


1 Sayre v. Earl of Rochford, 2 W. BL. 1165.

2 1 Saund. on Pl. & Ev. 107. In the case of a hired servant, the right to inflict corporal punishment, by way of discipline or punishment, is denied. Matthews v. Terry, 10 Conn. 455. If the servant is a young child, placed with a master in loco parentis, the ordinary domestic discipline would probably be quite justifiable.

3 1 Hawk. P. C. c. 60, § 23.

4 Watson v. Christie, 2 B. & P. 224; Brown v. Howard, 14 Johns. 119; Thorn v. White, 1 Pet. Adm. 173; Sampson v. Smith, 15 Mass. 365.

6 Esp. on Evid. 155, 156; Gregory v. Hill, 8 T. R. 299; Bull. N. P. 18, 19; Green v. Goddard, 2 Salk. 641; Williams v. Jones, 2 Stra. 1049; Green v. Bartram, 4 C. & P. 308; Rose v. Wilson, 1 Bing. 353; 8. C. 8 J. B. Moore, 362; Weaver v. Bush, 8 T. R. 78; Tullay v. Reed, i C. & P. 6; Adams v. Freeman, 12 Johns. 408.

sonably demanded.' (a) If there was a wilful battery, and it is justified, the defendant must show that the plaintiff resisted by force, to repel which the battery was necessary. And whenever the justification is founded on a defence of the possession of property, it is, ordinarily, sufficient for the defendant to show his lawful possession at the time, without adducing proof of an indefeasible title ;2 () and in such cases a temporary right of possession is sufficient. Thus, where no person dwelt in the house, but the defendant's servant had the key, to let himself in to work, this was held sufficient evidence of the defendant's possession, as against every one but the owner. So, where a county jail, the title to which was vested by statute in the justices of the county, was in the actual occupancy of the stewards of a musical festival, as it had been on similar occasions, as they occurred, for several years, but there was no evidence of any express permission from the justices, yet this was held a sufficient possession, against a person intruding himself into the hall without leave.4

1 Imason v. Cope, 5 C. & P. 193; Esp. on Evid. 156; Eyre v. Norsworthy, 4 C. & P. 502; Simpson v. Morris, 4 Taunt. 821; Bush v. Parker, 1 Bing. N. C. 72.

2 Skeville v. Avery, Cro. Car. 138; Esp. on Evid. 156; 1 Saund. on Pl. & Evid. 107. 8 Hall v. Davis, 2 C. & P. 33.

4 Thomas v. Marsh, 5 C. & P. 596.

(a) Hanson v. E. & N. A. R. R. Co., 62 land, assaults a person wrongfully holding Me. 84; Coleman v. N. Y. & N. H. R. R. possession of it against his will, although Co., 106 Mass. 160. And the party who the freeholder may be responsible to the justifies the use of force must prove the public in the shape of an indictment for a circumstances of justification. Ibid. See forcible entry, he is not liable to the other also Brown v. Gordon, 1 Gray (Mass.), party. I cannot see how it is possible to 182.

doubt that it is a perfectly good justifica(6) A Catholic priest has no right, tion, to say that the plaintiff was in posby virtue of his priestly character, to session of the land against the will of the forcibly remove from a room a person law- defendant who was owner, and that he enfully there, though the priest is about to tered upon it accordingly, even thongh in administer an office of religion to a sick so doing a breach of the peace was comperson at the latter's request. Cooper v. mitted. The doctrine of Newton v. HarMekenna, 124 Mass. 284.

land was questioned in Davis v. Burrell, The question whether a landlord, who 10 C. B. 821, and finally overruled in forcibly enters upon a tenant holding over Blades v. Higgs, 10 C. B. N. $. 713. after the expiration of his term, and expels The principle this decided in England is him, is liable to an action of tort for the affirmed in Massachusetts in the case of entry on the premises, or for an assault in Low v. Elwell, 121 Mass. 309 ; in which expelling the tenant, provided he uses no the case of Sampson v. Henry, 13 Pick. more force than is necessary, is one which (Mass.) 36, is criticised. And in accord has been decided differently in different with this decision are Sterling 1. Warden, courts. The early case of Newton v. Har51 N. H. 217; Kellam v. Janson, 17 Pa. laud, 1 M. & G. 644, decided in the affirma. St. 467 ; Rich v. Keyser, 54 Pa. St. 86. ative as far as trespass for assault and bat- Contra, Bliss v. Johnson, 73 N. Y. 529 ; tery is concerned. In Harvey r. Brydges, Parsons v. Brown, 15 Barb. (N. Y.) 590 ; 14 M. & W. 437, Parke, B., says, "When a Dustin v. Cowdry, 23 Vt. 631. See 4 Am. breach of the peace is committed by a free- Law Rev. 429. holder, who, in order to get possession of his

§ 99. Justification. If the assault and battery is justified, as done to preserve the peace, or to prevent a crime, the defendant must show that the plaintiff was upon the point of doing an act which would have broken the peace, or would manifestly have endangered the person of another, or was felonious; 1 and if the interference was to prevent others from fighting, he must show that he first required them to desist. If the trespass justified consisted in arresting the plaintiff as a felon, without warrant, the defendant must prove either that a felony was committed by the plaintiff, in his presence; or that the plaintiff stood indicted of felony; or that he was found attempting to commit a felony; or that he had actually committed a felony, and that the defendant, acting with good intentions, and upon such information as created a reasonable and probable ground of suspicion, apprehended the party in order to carry him before a magistrate.3 It seems also to have been held, that the defendant may in like manner justify the detention of the plaintiff, as found walking about suspiciously in the night, until he gave a good account of himself;4 or because he was a common and notorious cheat, going about the country and cheating by playing with false dice and other tricks, being taken in the fact, to be carried before a magistrate; or that he was found in the practice of other offences, in the like manner scandalous and prejudicial to the public.5

§ 100. Same subject. It is further to be observed, that, whenever the defendant justifies the laying of hands on the plaintiff, to take him into custody as an offender, he ought to be prepared with evidence to show that he detained him only until an officer could be sent for to take charge of him, or that he proceeded without unnecessary delay to take him to a magistrate, or peaceofficer, or otherwise to deal with him according to law.

Defences by magistrates and other officers will be treated hereafter, under appropriate heads.

1 Handcock v. Baker, 2 B. & P. 260.
2 Hawk. P. C. b. 1, c. 31, § 49; 1 East, P. C. 304.

8 Hawk. P. C. b. 2, c. 12, $$ 18, 19; 4 Bl. Comm. 293; 1 East, P. C. 300, 301; 1 Russ. on Crimes, 723–725; 1 Deacon, Crim. Law. 48, 49; Ledwith v. Catchpole, Cald. 291, per Ld. Mansfield; Rex v. Hunt, 1 Mood. Cr. Cas. 93; Stonehouse v. Elliott, 6 T. R. 315.

4 Hawk. P. C. b. 2, c. 12, $ 20. But this is now doubted, unless the defendant is a peace-officer. 1 East, P. C. 303; 1 Russ. on Crimes, 726, 727.

5 Hawk. P. C. b. 2, c. 12, § 20; Holyday v. Oxenbridge, Cro. Car. 234; 8. c. W. Jones, 249; 2 Roll. Abr. 546.

Esp. on Evid. 158; Rose v. Wilson, 1 Bing. 353.


$ 101. Scope of the chapter. Under this head it is proposed to consider only those matters which pertain to this form of action, for whatever cause it may be brought, and to the common counts, referring, for the particular causes of special assumpsit, such as Bills of Exchange, Insurance, &c., and for particular issues in this action, such as Infancy, Payment, and the like, to their appropriate titles.

§ 102. Contracts, express and implied. The distinction between general or implied contracts, and special or express contracts, lies not in the nature of the undertaking, but in the mode of proof. The action of assumpsit is founded upon an undertaking, or promise of the defendant, not under seal, (a) and the averment always

(a) When a contract under seal has wrongfully taken or detained, the owner been modified by a subsequent parol may waive the tort and recover on a count agreement, changing some of the contract for money had and received in assumpsit. provisions, the proper form of action on See post, SS 265, n. 1, 120, n. 9, and 108. the modified agreement is assumpsit, not But in such cases there must be some evi. covenant. But this is only true when the dence that the goods have been actually sealed contract is wholly or partly super- converted into money by the wrong-doer, seded by the new parol agreement, so that or that raises a presumption that he has performance by the parties after the parol assumed the ownership of the goods as modification is not an execution of the vendee. Thus, where the facts were that original contract, but an execution of the the plaintiff sent a certain number of logs modified contract. Thus, where in a sealed to the defendant, who owned and operated contract it is provided that the work shall a sawmill, to be sawed, and only a part of be finished on a certain day, or, upon the lumber was returned to the plaintiff, the happening of a certain contingency, leaving a large part unaccounted for, and upon such later day as a third person the plaintiff sued on the common counts, shall determine, the fact that the time is Sharswood, J., said that if it had been an extended under such provision does not action on the case for negligence, or there make it proper to sue in assumpsit, but had been a count upon a contract to keep the remedy is still in covenant. King v. as bailee, it might have been well, but that Lamoille Valley R.R.Co., 51 Vt. 369. An to support the action there must be some action of assumpsit on the common money evidence that goods had been actually concounts will lie to recover the amount of a verted into money by the wrong-doer, or tax paid by the plaintiff for the use of the the circumstances must be such as to raise defendant, although the duty of the de- a presumption that he had done so. Satfendant to pay the tax arose upon his con- terlee v. Melick, 76 Pa. St. 62; and to the tract under seal for the sale of land to same effect, Bethlehem v. Fire Co., 81 Pa. the plaintiff; for the action is not based St. 445. In the leading case upon this on the contract, which is only evidence of point, Longchamp v. Kelly, Dougl. 137, the duty, and this may be established as where the defendant took a masquerade well by a contract under seal as in any ticket to sell for plaintiff, and neither other way. Curtis v. Flint, &c. R. R. Co., accounted for the price nor returned the 32 Mich. 291.

ticket, Lord Mansfield held that it was a It is a settled rule that when goods are fair presumption that the defendant had

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