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You are here: BAILII >> Databases >> United Kingdom Books >> Buller, Francis - An introduction to the law relative to Trials at Nisi Prius (excerpt from) [1817] BOOKS 1 (1817) URL: http://www.bailii.org/uk/other/books/1817/1.html Cite as: [1817] BOOKS 1

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OF ASSAULT AND BATTERY

IN treating of the action of assault and battery, it will be necessary to see what the law looks upon as such, (a) And first, an assault is an attempt

(a) Assault, which is an inchoate violence, differs from battery, for to create an assault it is not necessary to touch the person of another. Finch's Law, 202. Genner v. Sparkes, Salk. 79; for it is the intent, the quo animo, accompanied with a present ability to use violence, that constitutes an assault. Griffin v. Parsons, Selw. N. P. Ab. 21 (n). And the de-gree of violence makes no difference. Per Le Blanc, J. in Leame v. Bray, 3 East, 602. For an assault and battery a man may bring a civil action, and indict defendant at the same time, for they are are distinct remedies. Jones v. Clay, 1 Bos. and Pull. 191. And this action lies for a native Minorquin against a governor of Minorca, for such injury committed by him in Minorca; and such action, if the case require it, may be laid at Minorca, viz. at London, or it may be laid generally in any English county. Mostyn v. Fabrigas, Cowp. 161. But an assault cannot be laid to have been committed at divers days and times, for the assault is one en-tire individual act. Mitchell v. Neale, Cowp. 828. The authority of this case, however, was doubted by the court of C. B. in Burgess v. Freelove, 2 Bos. and Pull. 425; but its authority was restored by English v. Purser, 6 Last, 395, in which Lord Ellenborough distinguished between the words made an assault, in Michell v. Neale, and assaulted, in Burgess v. Freelove, on the ground that the latter might mean different assaults on different days. But the same distinction does not appear to have been taken in Burgess v. Freelove, which was decided merely on the difference between laying an assault diversis diebus et vicibus, and with a continu-ando. But (unless otherwise directed by statute) the venue may he laid in any county. Corbett v. Barnes, Cro. Car. 444.

or offer, by force or violence, to do a corporal hurt to another, as by pointing a pitchfork at him, when standing within reach; presenting a gun at him ; drawing a sword, and waving it in a menacing manner, &c. (Queen v. Ingram, H. 10 Ann. Salk. 384.) But no words can amount to an assault, though perhaps they may in some cases serve to explain a doubtful action, (1 Hawk. P. C. 133.); as if a man were to lay his hand upon his sword, and say, “ if it were not assize time, he would not take such language:" these words would prevent the action from being construed to be an assault, because they shew he had no intent to do him any corporal hurt at that time. (Tuberville v. Savage, M. 1669. 1 Mod. 3.) Secondly, a battery, which always includes an assault, is the actual doing an injury, be it ever so small, in an angry, or revengeful, or rude, or insolent manner; as by spitting in his face, or violently jostling him out of the way. But if two by consent play at cudgels, and one hurt the other, it is no battery, (Dalt. cap. 22. tamen vide Boulter v. Clerk); so if one soldier hurt another in exercise; but if he plead it, he must set forth the circumstances, so as to make it appear to the court that it was inevitable, and that he committed no negligence to give occasion to the hurt: for it is not enough to say, that he did it casualiter et per infortunium, contra, voluntatem suam, for no man shall be excused a trespass, unless it may be justified entirely without his default, (Weaver  v. Ward, E. 14 Jac. 1. Hob. 134.); and therefore it has been holden, that an action lay where the plaintiff, standing by to see the defendant uncock his gun, was accidentally wounded.—T. 10 Geo. 1. Underwood v. Hewson, per Fortescue and Raymond, in Midd. Str. 596.

And much more, if a man wantonly do an act by which another man is hurt; as by pushing a drunken man, he will be answerable in an action of assault and battery, but if he intend doing a right act, as to assist such drunken man, or prevent hirn from going along the street without help, and in so doing, an hurt do ensue, he will not be answerable.— Short v. Lovejoy, coram Lee, C. J. Guildhall, 1752. (a)

Where, by a sudden fright, a horse runs away with his rider, and runs against a man, it is no battery, and may be given in evidence on the general issue; but if it were occasioned by any one whipping the horse, such person would certainly be liable in an action upon the case; and, quære, in the other case, if the plaintiff were to prove that the horse had been used to run away with his rider, for in such case the rider is not free from blame.— Gibbons v. Pepper, E. 1696. 4 Mod. 405. 2 Salk. 637.

The plaintiff cannot give in evidence a conviction at the suit of the king for the same battery; for it is a general rule, that no record of conviction or verdict shall be given in evidence, but such whereof the benefit may be mutual, viz. such whereof the defendant, as well as plaintiff, might have made use, and given in evidence in case it had made for him.— Rex v. Warden of Fleet, M. 11 W. 3. 12 Mod. 339. at bar.

In an action of assault and battery, Mr. Serjeant Hayward would have proved that the plaintiff and the defendant fought by consent, and insisted that this was evidence on the general issue in bar of the action, for volenti non fit injuria. (Boulter v. Clark, at Abingdon, 1747, ante, Dalt. 22.) But Parker, Chief Baron, denied it, and said, the fighting being unlawful, the consent of the plaintiff to fight (if proved) would be no bar to his action, and that he was entitled to a verdict for the injury done him; and cited Winch, 49. 2 Lev. 174. and Webb v. Bishop, at Gloucester Lent Assizes, 1731, before Lord Chief Baron Reynolds, where, in an action for five guineas on a boxing match, the judge held it an illegal consideration, and the plaintiff was nonsuited. Vide etiam Matthew v. Ollerton, M. 1694. Comb. 218, where it was said, that if a man license another to beat him, ^:*such licence is void, because it is against the peace; and thereupon the plaintiff had a verdict, and 30s. damages, (b)