Carth. 416. Goddard and 21. 6 M. 261 1 Vent. 47. berts. the Acquittal, and the Circumftances which fhew the Profecution was malicious and without probable Cause: He may likewife give in Evidence the Circumstances of the Defendant, in Order to encrease the Damages. If the Action be brought against feveral, and one only be found guilty, it is fufficient; for there is a great Difference between this Action on the Cafe in Nature of a Confpiracy, and a Writ of Confpiracy at Common Law: For in this Cafe the Damage sustained is the Ground of the Action. He that gets off upon a Non Pros does not get off at all on the Merits of the Caufe; and to maintain a Confpiracy, it is neceffary to lay and prove an Acquittal; and therefore a Nolle Profequi will not maintain the Declaration, but if he plead Not Guilty, and the Attorney General confefs it, that will do. The Defendant's Name upon the Back of the Bill is a fufficient Evidence, and the best of the Defendant's being fworn to the Bill: But it may be proved that he was a Witness without having the Bill; but a Perfon's Name being indorfed on the Indictment, is no Evidence of his being a Profecutor. But though an Action do lie for a malicious ProfecuSavil and Ro- tion, yet it is not to be favoured; and therefore if the Indictment be found by the Grand Jury, the Defendant fhall not be obliged to fhew a probable Cause: But it fhall lie upon the Plaintiff to prove exprefs Malice: However, as it may come to be left to a Jury, it is advifeable for the Defendant to give Proof of a probable Caufe, if he be capable of doing it; and for this Purpose Proof of the Evidence given by the Defendant on the Parroll v. Indictment is good. And where the Facts lie in the Fishwick, Knowledge of the Defendant himself, he muft fhew a London, after probable Cause, tho' the Indictment be found by the Trinity 1772. Grand Jury, or the Plaintiff fhall recover without ing exprefs Malice. Cobb and Golding v. 6 Mod. 216. Johnson and prov If the Plaintiff do prove Malice, yet if the Defendant fhew a probable Caufe, he thall have a Verdict, and the Judge, not the Jury, is to determine whether he had a probable Caufe; and therefore, where the Plaintiff having brought an Action against the Defendant for a malicious Profecution for Perjury obtained a Verdict, upon a Motion for a new Trial the Court set it afide (it appearing upon the Report of the Judge, that there was a probable Cause) not as a Verdict against Evidence, but as a Verdict against Law. When the Action is for a malicious Profecution for Felony, the firft Part of the Defendant's Defence must be be to prove a Felony committed; and therefore if no- Ux'. body were by at the Time of the fuppofed Felony but the Browning, Defendant or his Wife, their Oath at the Trial of the Indictment may be given in Evidence to prove the Felony. In an Action for a malicious Profecution against the Lane and St. los Profecutor and the Juftice of Peace who committed the & al'. Str. 79. Plaintiff, the Jury gave 200l. against the Profecutor, and Post. 93. zol. against the Juftice; and King Chief Justice ordered the Verdict to be fo taken. But in Lowfield and Bankcroft, Trin. 5 G. 2. Lord Raymond in the like Action, Str. 910. where the Jury would have given Sool. against one and 100l. against each of the other three, faid it could not be done, and there was a Verdict against all for 1100l. IN CHAPTER III. Of Affault and Battery. 384. I Hawk. P. N treating of the Action of Affault and Battery, it Queen v. Inwill be neceffary to fee what the Law looks upon as gram, Salk. fuch. And firft, an Affault is an Attempt or Offer by Force or Violence, to do a corporal Hurt to another, as by pointing a Pitchfork at him, when ftanding within reach; prefenting a Gun at him; drawing a Sword, and waving it in a menacing Manner, &c. But no Words can amount to an Affault, though perhaps they may in c. 133. fome Cafes ferve to explain a doubtful Action; as if a 1 Mod. 3. S. P. Man were to lay his Hand upon his Sword, and fay, "If it were not Affize Time, he would not take fuch Language:" Thefe Words would prevent the Action from being conftrued to be an Affault, because they shew he had no Intent to do him any corporal Hurt at that Time. Secondly, a Battery, which always includes an Affault, is the actual doing an Injury, be it ever so small, in an angry, or revengeful, or rude, or infolent Manner; as by fpit- Dalt. cap. 22. ting in his Face, or violently juftling him out of the tamen Vide Way. But if two by Confent play at Cudgels, and one Boulter and hurt the other, it is no Battery; fo if one Soldier hurt Clerk. another in Exercife; but, if he plead it, he muft fet Hob. 134. forth the Circumftances, fo as to make it appear to the Court, that it was inevitable, and that he committed no Negligence to give Occafion to the Hurt: for it is not enough! poft. case of Short and Lovejoy coram G. Hall 1752. enough to fay, that he did it cafualiter et per infortunium, contra voluntatem fuam, for no Man fhall be excufed a Trefpafs, unlefs it may be juftified intirely without his Default; and therefore it has been holden, that an Action lay where the Plaintiff ftanding by to fee the Defendant uncock his Gun, was accidentally wounded. Trin. 10 Geo. 1. Underwood and Herfon. Per Fortefcue and Raymond, in Midd. Str. 596. I. And much more, if a Man wantonly do an A&t by which another Man is hurt; as by pufhing a drunken Man, he will be answerable in an Action of Affault and Battery, but if he intend doing a right Act, as to affift fuch drunken Man, or prevent him from going along the Street without Help, and in fo doing, an Hurt do ensue, he will not be answerable. Where by a fudden 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 Iffue: But if it were occafioned by any one whipping the Horfe, fuch Perfon would certainly be liable in an Action upon the Cafe; and, Quære, in the other Cafe, if the Plaintiff were to prove that the Horse had been used to run away with his Rider, for in fuch Cafe the Rider is not free from Blame. The Plaintiff cannot give in Evidence a Conviction at the Suit of the King for the fame Battery; for it is a general Rule, that no Record of Conviction or Verdict shall be given in Evidence, but fuch whereof the Benefit may be mutual, viz. fuch whereof the Defendant, as well as Plaintiff, might have made ufe, and given in Evidence in Cafe it had made for him. In an Action of Affault and Battery, Mr. Serjeant cause it is against the Peace; and thereupon the Plaintiff had a Verdict, and 30s. Damages. There are three Sorts of Defence to this Action. 1. Inficiation. 2. Matter of Excufe. 3. Juftification. Inficiation is the denying of the Fact, and that can only be by pleading the General Iffue, viz. Not Guilty. Matter of Excufe is an Admiffion of the Fact; but faying it was done accidentally, and without any Default in the Defendant; and that (as I have already faid) may be either pleaded or given in Evidence on the General Iffue. Hob. 134. Juftification is an infifting upon fomething that made it lawful for him to do the Fact laid to his Charge; it is therefore to be feen what is fufficient Matter of Juftifi- Cr. J. 367. cation. The moft general Matter of Juftification is, that the Plaintiff made the first Assault, and if Iffue be joined thereupon, the Defendant may prove an Affault on any Day before the Action brought; and the Plaintiff cannot give in Evidence a Battery at another Day, or at another Time in the fame Day, without a novel Affignment, which muft ftate the Battery to be on the fame Day mentioned in the Declaration, else it will be a Cr. Car. 229. Departure; though on fuch novel Affignment he may 514-15. give in Evidence a Battery at any other Day, the fame as he might if the Defendant had pleaded Not Guilty to the Declaration; but as the common Way is for the Plaintiff to have two or three Counts in his Declaration, fo that the Defendant is under a Neceffity of pleading the General Iffue to fome of them (for if he juftify two he admits two, and confequently, unlefs he can prove two Juftifications, must have a Verdict against him) he may prove another Battery without being put to make a novel Affignment. The Memorandum was generally of Michaelmas Term, Str. 1271. and the Fact on Son Affault was proved on a Day within the Term, and on a Cafe made, the Court held it well enough; for the Plaintiff need have given no Evidence on this Plea, unless to aggravate Damages, and the Court will not nonfuit him, because it is amendable by a new Cockcroft and Smith, Salk. 642. Dance and Lucy, Sid. 246. Bill. And if this had come out on the Defendant's Evidence, who had otherwise proved his Plea, he ought to have a Verdict unless the Plaintiff prove another Battery previous, which in fuch Cafe ought to be deemed the Foundation of the Action. If the Defendant prove that the Plaintiff firft lifted up his Staff, and offered to ftrike him, it is a fufficient Affault to juftify his ftriking the Plaintiff, and he need not ftay till the Plaintiff has actually ftruck him. However, every Affault will not juftify every Battery; but it is Matter of Evidence whether the Affault were proportionable to the Battery, and therefore, though the Plaintiff fet out a Maihem in his Declaration, yet the Plea of Son Affault demefne is the fame; and he need not plead that the Plaintiff mathemaffet et vulneraffet the Defendant, Nifi, &c. But that muft appear in Evidence; that is, it must appear that the Affault was in fome Degree proportionable to the Maihem; and therefore in Cockcroft v. Smith, Holt Ch. Juft. directed the Jury to give 1 Raym. 177. a Verdict for the Defendant, the firft Affault being by tilting the Form on which the Defendant fat, whereby he fell; the Maim was, that the Defendant bit off the Plaintiff's Finger. King & Ux' v. Phippard. Carth. 280. 1 Haw. P. C. 130. J Raym. 62. If the Defendant plead Son Assault, and the Plaintiff can justify it, he muft plead it, for he cannot give it in Evidence upon the general Replication de injuriâ fuâ propriâ. There are many other Matters which may be pleaded in Juftification: As if an Officer having a Warrant against one who will not fuffer himself to be arrested, beat or wound him in the Attempt to take him; fo if a Parent in a reasonable Manner chastise his Child, or a Master his Servant, or a Schoolmafter his Scholar, or a Gaoler his Prifoner; or if I beat one who wrongfully endeavours with Violence to difpoffefs me of my Lands or Goods, or who affaults my Wife, Parent, Child, or Mafter: But though all these Matters may be pleaded in Juftification, yet they must be pleaded differently; as for Example: In Affault and Battery against Hufband and Wife for a Battery by the Wife, the Defendants may plead that the Plaintiff was going to wound her Husband, and that she infultum fecit to defend him and to prevent the Plaintiff from beating him: In the fame Manner a Servant may justify an Affault in Defence of his Mafter; but not e con', because the Mafter may have an Action per quod Jervitium |