a constable, &c. it is sufficient to notify that he is constable, or that he arrests in the narne of the commonwealth. 1 Hale '583.

9. Bare words will not make an arrest, without touching the person, or otherwise confining him. But if an officer comes into a room, and tells the party he arrests him, and locks the door, this is an arrest; for he is in custody of the officer. So if he submits to the officer. 1 Salk. 70. Bull. N. P. 62. B. R. H. 287.

10. If the officer, after an arrest, suffer the prisoner to go at large, on a promise to return and find sureties, and he accordingly returns, it seems that he may detain him, though the contrary was formerly holden. Haw. B. 2. c. 13. s. 9.

But it has been settled that where an officer arrests a person on mesne civil process, and voluntarily suffers him to escape, he may retake him at any time before the return of the writ. 2 Term Rep. 172. But it is otherwise on an execution. See the difference between MESNE process and an EXECUTION. 2 Term Rep. 176, 7.

But if the party arrested do escape, the officer upon fresh suit may take him again and again, so often as he escapeth, altho' he were out of view, or that he shall fly into another town or county. Dalt, c. 169.

11. A warrant to arrest the party, to appear at the next sessions, &c. means the next sessions after the arrest, and not after the date of the warrant. 8 Term Rep. 110.

12. The warrant of a magistrate, not returnable at any particular time, is in force, till executed, during his life. Peake's Ca. N. P. 234.

V. WHAT IS TO BE DONE AFTER THE ARREST.

1. When a private person hath arrested a felon, or one suspected of felony, he may detain him in custody till he can reasonably dismiss himself of him; but with as much speed as conveniently he can, he may do any of those three things:

(1) He may carry him to the common jail, but that is now rarely done. 1 Hale 589. 2 Hale 77.

(2) He may deliver him to the constable, who may either carry him to jail, or to a justice of the peace. 1 Hale 589.

(3) He may carry him immediately to a justice of the peace of the county where he is taken. 1 Hale 580.

2. If the arrest be by warrant, then the officer must carry the party according to its direction : if it be to bring the party before that justice specially, he must carry him before the same justice; if before any justice of the county, then it is at the election of the officer, not of the party, before whom he will carry him. 1 Hale 582. 2. Hale 112.

3. If the arrest be in a different county from that in which the offence was committed, the party must be carried before a justice of the county where arrested, and by his warrant conveyed to a justice cf the county where the offence was committed. 1 Rev. Code 105.

4. But if the time be unreasonable, as in or near the night, whereby he cannot attend the justice, or if there be danger of a present rescue, or if the party be sick, he may secure him till the next day, or such time as it may be reasonable to bring him. 2 Hale 119.

5. And when he hath brought him to the justice, yet he is in law still in his custody, till the justice discharge, or bail, or commit him.

2 Hale 120.

6. But it is said, the constable is not obliged to return the warrant itself, but may keep it for his own justification, in case he should be questioned for what he had done; but only to return what he had done upon it. L. Raym. 1196.

ARSON. See Burning.

ASSAULT AND BATTERY.

I. Assault, what.

II. Battery, what.

III. In what cases they may be justified. IV. Remedy for.

I. ASSAULT, WHAT.

ASSAULT (assaultus, from the French assayler) is an attempt, with force and violence, to do a corporal injury to another, as by raising a stick or fist in a threatening or insulting 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; holding up a fork at a person who is within reach; or by any other similar act, accompanied with such circumstances as denote at the time an intention coupled, with a present ability of using actual violence against the person of another. Haw. B. 1. c. 62. s. 1. Selw. N. P 21.

2. And from hence it clearly follows that one charged with an assault and battery may be found guilty of the assault, and yet acquitted of the battery: But every battery includes an assault; therefore on an indictment of assault and battery, in which the assault is ill laid, if the defendant be found guilty of the battery, it is sufficient. Ibid.

3. It seems agreed at this day, that no words whatever can amount to an assault, notwithstanding the many ancient opinions to the contrary. Ibid.

II. BATTERY, WHAT.

Battery (from the Saxon batte, a club, or beatan, to beat, from whence cometh also the word battle) is, when any injury whatsoever, be it

ever so small, is actually done to the person of another, in an angry, or revengeful, or rude, or insolent manner, as by spitting in his face, or any way touching him in anger, or violently justling him out of the way, and the like. Haw. B. 1. c. 62. s. 2. 3 Bl. Com. 120.

III. IN WHAT CASES THEY MAY BE JUSTIFIED.

1. A person may justify an assault in defence of his person, or of his wife, or master, or parent, or child within age; and may even wound in defence of his person, though not of his possessions. 3 Salk. 46. Selw. N. p. 25. So a wife may justify in defence of her husband. 1 L. Raym. 62.

2. If an officer authorised by warrant lay hands on another to arrest him, or if a parent, in a reasonable manner, chastise his child, a master his servant, a schoolmaster his scholar, or a jailor his prisoner, and even a husband his wife, as some say; or if one confine a friend by force, who is mad, or if one wrests a sword from another, who offers violence therewith, in all those cases, and many others of a similar nature, it is justifiable. Haw. B. 1. c. 60. s. 23.

3. So, if a man endeavours to deprive me of my goods or possessions, I may justify laying hands upon him to prevent him, and in case he persists with violence, I may proceed to beat him away. 3 Bl. Com.

121.

4. Thus too in the exercise of an office, as that of church-warden or beadle, a man may lay hands upon another to turn him out of the church, and prevent his disturbing the congregation. Ibid.

5. The defendant may avail himself of these justifications, either by giving them in evidence, on the plea of not guilty, if indicted. (Haw. B. 1. c. 62. s. 3); or by pleading them specially, if sued; as, son assault demesne, mollitur manus imposuit, &c. 3 Bl. Com. 120, 1. And where these pleas would be proper, see Selwyn's Nisi Prius, ch. 3.

IV. REMEDY FOR.

1. The civil remedy for assault and battery, or for either, is by action of trespass vi et armis. 3 Bl. Com. 120, 1.

2. But the party injured may proceed against the defendant, both by action and indictment, for the same offence. Haw. B. 1. c. 62. S. 4.

3. And although in general, where there is an action and indictment depending for the same offence, the court will compel the prosecutor to make his election which he will pursue, before they will enter upon the criminal complaint (2 Burr. 720) yet it has lately been refused, in the case of assault and battery; on the ground that the fine, upon the criminal prosecution, and the damages to the party, in the civil ac

tion, are perfectly distinct in their natures. 1 Bos. & Pull. 191, Selw. N. P. 21, note (2).

4. The declaration must be positive, and charge," for that," omitting the whereas. Selw. N. P. 24. See Note to Lomax v. Hord, reported in 3 Hen. & Munf.

5. Against joint trespassers there can be but one satisfaction, and therefore if they are sued in one action, although they sever in pleas and issues, yet one jury shall assess damages for all, and if all the issues are found for the plaintiff, the jurors ought not to sever the damages, for, if they do, the verdict will be vitious. And if in such case judgment be entered for the separate damages, such judgment will be erroneous. But, before judgment, the defect of the verdict may be cured, by the entry of a nolle prosequi against all the defendants, except one, and taking judgment against that one only. Selw. N. P. 33. And this last is called taking judgment de melioribus damnis. 1 Wils. 30.

6. On the above principles, it has been held, that if a battery be committed by several, and a recovery had against one, such recovery may be pleaded in bar to an action brought against any of the others for the same battery. 'Esp. N. P. 319. Yelv. 68. See also S. P. 1 Hen. & Munf. 481. 2 Hen. & Munf. 355.

7. So if a trespass be joint, a release to one is good to all; for though a trespass be committed by several, yet it may be sued against one or all, for in trespasses all are principals, and each is answerable for his fellow's act; and as there can be but one satisfaction, a release to any one is a release of the trespass, and all have equal benefit. 'Esp. N. p.

415.

And the law is the same, even though it be expressly stipulated that the release should only operate to discharge the one released, as to the part which he tock, in the assault, and should not be deemed a satisfaction as to the other trespassers. 2 Hen. & Munf. 38.

8. So, if the plaintiff brings a joint action of trespass, and the parties sever in their pleas, and one is tried and found guilty, and damages assessed, the plaintiff may enter a nolle prosequi as to the others. 'Esp. N. P. 415.

9. So, where a joint trespass was committed, and the plaintiff brought his action against one, and recovered, it was held that he had made his election, and such recovery might be pleaded in bar to an action against the others. Ibid.

10. But, if in an action for assault and battery against A. and B. it be proved that the assault by A. was more violent than by B. the jury may give their verdict against both, to the amount which they think the most culpable ought to pay. 4 'Esp. Rep. 158.

11. On a judgment by default againt joint trespassers, the plaintiff cannot execute separate writs of inquiry, and sever the damages. But, before final judgment, the court will permit the plaintiff, in order to cure the defect, to set aside his own proceedings, on the payment of costs, and to issue a new writ of inquiry. 6 Term Ref. 199.

12. If trespass be brought against one, simul cum others, if nothing be proved against one, he may be examined as a witness for the rest. 'Esp. N. P. 419. Bull. N, P. 286. 1 Wash. 187.

(A) Warrant for an assault.

County, to wit:

Whereas complaint hath been made to me J. P. a justice of the peace for the county aforesaid, on the oath of A. J. that on the

day of instant, at the county aforesaid, A. O. of, &c. labourer, violently assaulted and beat him the said A. I. upon, &c. with, &c. (the part, weapon, and extent of the injury may be described, but it is not absolutely necessary). These are therefore to require you forthwith to apprehend the said A. O. and bring him before me, or some other justice of the peace for the county of aforesaid, to answer the

said complaint, and further to be dealt with according to law. Given under my hand and seal, &c.

Το

to execute.

(B) Recognizance of bail.

Be it remembered that on the

day of

in the year

A. O. of the county of labourer, A. B. of, &c. blacksmith, and B. B. of, &c. brewer, came before me J. P. a justice of the peace for the county of and severally acknowledged themselves to be indebted to A. G. governor or chief magistrate of the commonwealth of Virginia, and his successors in office, that is to say, the said A. O. in dollars, and the said A. B. and B. B. in dollars each, to

be respectively levied of their lands and tenements, goods and chattels, if the said A. O. shall make default in performance of the condition under written.

The condition of this recognizance is such, that if the above bound A. O. shall personally appear before the commonwealth's justices of the peace for the county aforesaid, at the next court to be held for the said county of then and there to answer to the said commonwealth for violently assaulting and beating A. J. of, &c. with which the said A. O. stands charged before me, and to do and receive what by the said court shall then and there be ordered and adjudged, and shall not depart thence without the leave of the said court, then, this recognizance shall be void, otherwise remain in full force and virtue. Acknowledged before me.

If the recognizance be forfeited, and judgment thereupon, execution must issue against the lands and tenements, goods and chattels. For though in Virginia, as in England, lands are not generally liable to execution, yet when the party binds his lands by recognizance, they may be taken in execution. See Rast. Ent. 546 a.

Το

(C) Mittimus, for want of sureties.

County, to wit:

constable, and to the keeper of the jail of the said county. Whereas A. O. of labourer, hath been brought before me J. P. a justice of the peace for the county of by virtue of my war