Blanc, J. in Cooke v. Lloyd, Salop, Summer Assizes, 1803, Peake's Evidence, Append. xxxvi. But in Doe dem. Passingham v. Lloyd, Salop, Summer Assizes, 1794, Heath, J. admitted these books in evidence. See further on the sub, ject of these books, Lloyd v. Passingham, 16 Vesey, 59. The confession of the wife is not evidence against the defendant; but conversations between her and the defendant may be given in evidence. So letters written to her by the defendant are evidence against him; but the wife's letters to the defendant are not evidence for him. In a modern case, where the plaintiff and his wife were servants, and necessarily living apart in different families, Lord Kenyon, C. J. was of opinion, that letters written by the wife to the husband, before any suspicion of the adultery, might be read as evidence of the connubial affection which subsisted between the plaintiff and his wife, observing, at the same time, that, before he admitted the letters to be read, he should require strict proof when, and under what circumstances they were written, in order to shew that at this time there was not any suspicion of misconduct in the wife. In Hoare v. Allen', a witness was called by the husband to prove the representation made by the wife to him of the place to which she was going previously to her elopement, in order to remove all suspicion of connivance on the part of the husband. The Court of King's Bench were of opinion, that this evidence being part of the res gesta, was therefore admissible, IV. Of the Damages, THE damages given by the jury in this action are, in general, proportioned to the degree of the injury. Circumstances of aggravation of the injury, aud which may therefore operate as an inducement with the jury to give large damages, are, the plaintiff's having lived happily with his wife before her connection with the defendant, the unblemished character, and antecedent virtuous behaviour of the g Biker v. h Edwards v. Crock, 4 Esp. N. P. C. 39. Kenyon, C. J. i Hoare v. Allen, 3 Esp. N. P. C. 276. k Bull. N. P. 27. wife, a provision having been made for the children of the marriage by settlement or otherwise, and other similar topics which the extraordinary circumstances of the individual case may furnish. Proof is frequently adduced of the defendant being a man of fortune, by calling his banker, or producing a settlement, under which he may be entitled to any estate, real or personal. Circumstances of extenuation, on the part of the defendant, and which may tend to the mitigation or diminution of the damages are, the plaintiff's ill usage, or unkind treat-{ ment of his wife, evidence of his intolerable ill temper, of his having turned his wife out of his house', and refused to maintain her, &c. previously to the adulterous intercourse; gross negligence or inattention of the plaintiff to his wife's conduct, with respect to the defendant; the wanton manners of the wife, or first advances made by her to the defendant"; a prior elopement of the wife and criminal correspondence with another person, or having had a bastard before marriage; letters written by the wife to the defendant, before his connection with her, soliciting a criminal intercourse, &c. But the defendant will not be permitted to prove acts of misconduct of the wife subsequent to the commission of the act complained of in the actions. Although the damages recovered are under forty shillings, yet the plaintiff shall be entitled to full costs; this action not being within the statute 22 and 23 Car. 2. c. 9. (17.) It has been supposed, that in this action a new trial cannot be granted for excessive damages'; but in the case of Chambers v. Caulfield, 6 East, 256, Lord Ellenborough, C. J. delivering the opinion of the court said, that if it appeared to them, from the amount of the damages given, as compared with the facts of the case laid before the jury, that the jury must have acted under the influence, either of undue motives, or some gross error or misconception on the subject, the court would think it their duty to submit the question to the consideration of a second jury. 1 Bull. N. P. 27. m Per Bull. J. in Duberley v. Gunning, 4 T. R. 657. n Per Lord Ellenborough C.J. in Gardiner v. Jadis, March 2, 1805, London Sittings. Roberts v. Malston, Hereford, 1745, per Willes, C. J. Gilb. Evid. 113. Ed. 1761. p Per Lord Kenyon, C. J. Elsam v. q Per Lord Kenyon, C. J. S. C. s See Wilford v. Berkeley, 1 Burr. 609. (17) See this statute, post, CHA P. III. OF ASSAULT AND BATTERY. I. Of the Nature of an Assault and Battery, and in what Cases an Action for an Assault and Battery may be maintained. II. Of the Declaration. III. Of the Pleadings. IV. Of the Verdict and Judgment, V. Of the Costs. I. Of the Nature of an Assault and Battery, and in what Cases an Action for an Assault and Battery may be maintained. AN assault is an attempt, with force or violence, to do a corporal injury to another, as by holding up a fist in a menacing manner; striking at another with a cane or stick, though the party striking misses his aim; drawing a sword or bayonet; throwing a bottle or glass with intent to wound or strike; presenting a gun at a person who is within the distance to which the gun will carry; pointing a pitchfork at a person who is within reach; or by any other similar act, accompanied with such circumstances as denote at the time an intention (1), (coupled with a present ability) of using a Finch's Law, B. 3. c. 9. 1 Hawk. P. b Genner v. Sparks, 6 Mod. 173, 4. and C. c. 62. s. 1. Salk. 79. (1) Whether the act shall amount to an assault, must in every case be collected from the intention. Trespass for assault: Plea, son assault demesne. Replication, de injuria suá propria. The defendant and another person were fighting, and the plaintiff came actual violence against the person of another. For an assault, which is considered as an inchoate violence, the law has provided a remedy by an action of trespass vi et armis, at the suit of the injured party, for the recovery of damages commensurate to the injury sustained (2). A battery, which always includes an assault, is an injury inflicted on the person by beating, either with the hand or an instrument. The form of action prescribed by law, in the case of battery, is the same as that in assault, viz. an action of trespass vi et armis. In order to maintain this action, it is immaterial, whether the act of the defendant be wilful or not (3). Hence this action lies against a soldier who hurts one of his comrades while they are exercising, unless the defendant can shew such circumstances as will make it appear to the court, that the injury done to the plaintiff was inevitable, and that the defendant was not chargeable with any negligences: the merely pleading that the defendant committed the injury casualiter et per infortunium et contra voluntatem suam is not sufficient, for no man shall be excused of a trespass, unless it may be judged utterly without his fault. The defendant was uncocking a gun, and the plaintiff c Termes de la ley Battery, Com. Dig. d Weaver v. Ward, Hob. 134. Battery. e Underwood v. Hewson, Str. 596. and took hold of the defendant by the collar, in order to separate the combatants, whereupon the defendant beat the plaintiff. The plaintiff's counsel offering to enter into this evidence, it was objected on the other side, that the plaintiff ought to have replied this matter specially; but Legge, Baron, over-ruled the objection, observing, that the evidence was not offered by way of justification, but for the purpose of shewing that there was not any assault, for it was the quo animo which constituted an assault, which was matter to be left to a jury.-Griffin v. Parsons, Gloucester Lent Assizes, 1754. MSS. (2) For the law relating to indictments for assault and battery, see 1st Hawk. P. C. ch. 62. s. 1. 2. 1st East's P. C. ch. 8. s. 1. It must be observed, that the party injured may proceed against the defendant by action and indictment for the same assault, and the court, in which the action is brought, will not compel the plaintiff to make his election, to pursue either the one or the other; for the fine to the king, upon the criminal prosecution, and the damages to the party, in the civil action, are perfectly distinct in their natures. -Jones v. Clay, 1 Bos. and Pul. 191. (3) Neither does the degree of violence with which the act is done make any difference. Per Le Blanc J. 3 East's Rep. 602. standing near, it went off, and wounded him: it was holden, that the plaintiff might maintain trespass. This action lies not only against him who commits the injury, but against him also at whose command it is done: hence if A command B to beat another person, and B does it accordingly, A is guilty of the trespass as well as B. Although the plaintiff declares for an assault and battery, yet he may recover for the assault only. Although a person has been indicted for a felonious assault, by stabbing, and acquitted, the party injured, may, notwithstanding, sue him for damages in a civil action, if there has not been any collusion in procuring the acquittal"; and the same rule holds after indictment and conviction.. II. Of the Declaration. THIS is a transitory action, and consequently the venue may be laid in any county', except where it is otherwise directed by statute; as, where the action is brought against justices of the peace, mayors, or bailiffs of cities, or townscorporate, head-boroughs, port-reves, constables, tithingmen, churchwardens, overseers of the poor, &c. or other persons acting in their aid and assistance, or by their command, for any thing done in their official capacity; in these cases, the venue, by stat. 21 Jac. 1. c. 12. s. 5. must be laid in the county where the facts were committed; otherwise the jury, who try the cause, shall find the defendant not guilty, without any regard to any evidence given by the plaintiff touching the trespass, battery, &c. The provisions of the preceding statute having been found to be salutary, they have, by a late statute, (42 G. 3. c. 85. s. 6.) been extended to all persons holding a public employment, or any office, station, or capacity, civil or military, either in or out of the kingdom, and who, by virtue of such employment, have power to commit persons to safe custody; provided that, where any action shall be brought against such persons in this kingdom for any thing done out of this kingdom, the plaintiff may lay the act to have been done f 1 Roll. Abrid. 555. (V) pl. 2. g Lib. Ass. Auno 22. fol. 99. pl. 60. Bro. Trespass, pl. 40. Crosby v. Leng, 12 East, 409. i Adm. per Cur. S. C. 1 Corbett v. Barnes, Cro. Car. 444. |