Greene v Jones
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 404
COURT OF KING'S BENCH
[295] 45. greene verms jones. Trin. 21 Car. II. Eegis, Eoll 1848. Middlesex, to wit.-Be it remembered, that otherwise, to wit, in the term of St. Hilary last past, before our lord the King at Westminster, came Anthony Greene by Robert Powlet, his attorney, and brought here into the Court of our said lord the King then there his certain bill against .Richard Jones, in the custody of the marshal, &c., of a plea of trespass, and there are pledges of prosecution, to wit, John Doe and Richard Hoe; which said bill follows in these words, to wit: Middlesex, to wit, Anthony Greene complains of Richard Jones, being in the custody of the marshal of the Marshalsea of our lord the King, before the King himself, of this, that he, on the 20th day of January, in the 20th year of the reign of our Lord Charles the Second, now King of England, &c. with force and arms, &c. upon him the said Anthony, at the parish of St. Clement Danes, in the county aforesaid, did make an assault, and him the said Anthony did then and there beat, wound, and ill-treat, so that of his life it was greatly despaired, and other wrongs to him did, against the peace of our said lord the now King, and to the damage of him the said Anthony of forty pounds : and thereof he brings suit, &c. And now at this day, to wit, on Friday next after the morrow of the Holy Trinity in this same term, until which day the said Richard Jones had leave to imparl to the said bill, and then to answer, before our lord the King at Westminster, comes as [296] well the said Anthony by his attorney aforesaid, as the said Richard by John Matcher his attorney ; and the said Richard defends the force and injury when, &o.; and as to coming with force and arms, or whatever that is against the peace of our said lord the now King; says, that he is not thereof guilty and of this he puts himself upon the country; and the said Anthony therefore likewise, &c.; and as to the residue (1) of (1) This includes a justification both of the wounding and beating charged in the declaration. The reason is, because the plaintiff, after he was arrested, assaulted the defendant, and resisted him in the execution of his office; in which case it was lawful for him to wound and beat the plaintiff in his own defence, and in order to enforce the process of the law. 21 H. 7, 39, pi. 51, S. C. Bro. Trespass, 218. Fitz. Trespass, 247, cites T. T. 14 H. 7, and 21 H. 7, 39, above cited. Cro. Eliz. 268, Pendkbury v. Elmott. 1 Inst. 316. 1 Sid. 246, Dance v. Lucy. 1 Hawk. P. C. 130, 1 VMS. SATOD. 296. TRIN. 22 CAR. II. REGIS 405 the trespass aforesaid by him the aaid Richard above supposed to be done, the same Richard says that the said Anthony ought not to have or maintain his aaid action thereof against him, because he says, that before the said time when the said trespass is supposed to be done, to wit, on the 25th day of September in the 20th year of the reign of our lord the now King, at the parish of St. Clement Danes in the said county of Middlesex, before the same lord the King in the Court of our said lord the King, (the same Court being at Westminster in the said county of Middlesex,) one William Wood sued out of the Court of the same lord the King a certain ivrit, commonly called a bill of Middlesex, to the Sheriff of the county of Middlesex directed, by which it was commanded to the same sheriff that he should take the said Anthony if, &c. and him safely, &c. so that he should have his body before our said lord the King at Westminster, on Friday next after three weeks of St. Michael last past, to answer the same William of a plea of trespass, and also to a bill of the said William against the said Anthony for twenty and six pounds upon an assumption, according to the custom fol. ed. 1 Bae. Abr. 155. But unless resistance, or an attempt to rescue himself, be shewn, the defendant cannot justify the beating, and still less the wounding, of the plaintiff in arresting him under process; but he must plead not guilty to the wmund-ing and battery, and a justification as to the assault, otherwise the plea will be ill upon demurrer. 2 Str. 1049, Williams v. Jones, S. C. Cas. temp. Hardr. 298. 1 Ld. Raym. 231, Tmscott v. Carpenter. 2 Vent. 193, L'urr v. Donne. See 2 Lutw. 929, 930, Patrick v. Johnson, where all the former authorities on both sides are collected; by which case it appears, that there are precedents which justify the battery, as well as the assault, by a molliter manus imposuit, to arrest the plaintiff, upon the ground that every laying of hands upon another without authority is battery. However, as these are prior in time to the case of Williams v. Jones, which was decided after time taken to consider of the case on both sides, it seems to be much the safest way to justify the assault only, and plead not guilty to the battery. .But perhaps it is not very material whether the arrest shall be considered as a justification of the battery or not. For if a bailiff, &c. do more than barely arrest a person, if he beat him, or otherwise ill-treat him after the arrest, without any resistance, or attempt made to rescue himself, he is subject to an action, and if he justify the battery by an arrest under process, the plaintiff may new assign, which will bring it to much the same thing; 21 Hen. 7, 21, pi. 5. S. C. cited 2 Lutw. 930, Patrick v. Johnson; and in the law of Nisi Prins, it is said that an officer, by way of molliter manus imposu.it, may justify the beating, without shewing any resistance or attempt to rescue, and cites Titley v. Foxhall, C. B. T. T. 31 Geo. 2. Bull. N. P. 19. See Willes' .Rep. 14, Kowe v. Tutt. 690, Titley v. F rxhaU.(a) (a) See 8 T. R. 299, Gfregory v. Hill, that a plea justifying beating and woimding, by way of molliter manus imposuit, to turn the plaintiff out of the defendant's house, is bad on demurrer, unless it shew that the plaintiff made resistance and assaulted the defendant. [See further 3 M. & W. 150, Oakes v. Wood.} But where the defendant pleads that the plaintiff attempted forcibly to enter his, the defendant's, house, he may justify beating and wounding the plaintiff in resistance of this attempt. 8 T. R. 78, Weaver v. flush. It seems clear that the defendant cannot in any case justify an actual beating and wounding, unless he shews in his plea that force was used or attempted on the part of the plaintiff. But still he may justify the beating, that is to say, what in law amounts to a battery, by way of molliter manus ; for it was held in 6 T. R. 562, Smith v. Edge, that a justification of "assaulting, seizing, and grasping the plaintiff," in order to turn him out of a vestry-room, amounted to a justification of a battery within the meaning of 22 & 23 Car. 2, c. 9, as to costs. So also in 7 Taunt. 689, Johnson v. Narthwood, 1 B. Moore, 420, S. C., a justification of " ill-treating " by way of mollUer mamis was held to admit a battery. Vet in neither of these cases was it attempted to be argued, that the pleas were bad on account of their justifying a battery; and see Willes, 14, Rmoe v. Tutte, supra. [3 M. & W. 28, Eawlings v. Till, ante, p. 14, note ().] If the beating in truth amounted to any thing more than a mere battery in law, the plaintiff must new assign. 406 GREENE V. JONES 1 WM8. SAUND. 297. of the Court of our said lord the King before the King himself to be exhibited; (2) whereupon Dennis Gauden Knight, and Thomas Davies Knight, being Sheriff of the said county of Middlesex, before the said time when, &c. to wit, on the same 25th day of September in the year above mentioned, at the parish aforesaid in the county aforesaid, made and directed his certain warrant to the said Richard, then being bailiff of the said Dennis Gauden Knight, and Thomas Davies Knight, commanding the same Richard, on the part of the King, by the same warrant, that he should take the said Anthony if, &c. and him safely, &c. so that he should have his body before our said lord the King at Westminster aforesaid, on Friday next after three weeks of St. Michael last past, to answer the said William Wood according to the tenor of the said warrant; whereby the said Richard afterwards, to wit, on the 20th day of October in the year abovesaid, at the parish aforesaid in the county aforesaid, and before the return of the same writ, took and arrested him the said Anthony according to due form of law. And the said Richard further says, that the said Anthony, after the taking and arresting of the said Anthony, to wit, oti the day and year aforesaid, at the parish aforesaid in the county of Middlesex aforesaid, with force and [297] arms, &c. upon the said Richard made an assault, and him the said Richard then and there would have beat, wounded, and ill-treated, unless the said Richard had then and there sooner defended himself against him the said Anthony. And so the said Richard says that the harm if any,(c) then and there happened to the same Anthony, was of the proper assault of him the said Anthony, and in defence of himself the said Richard; without this, that the said Richard is guilty of any beating and assault before the said 20th day of October in the year aforesaid, or at any time after-warda; and this he is ready to verify: wherefore he prays judgment if the said Anthony ought to have or maintain his said action thereof against him, &c. Demurrer in the usual form. And for causes of demurrer iti law upon that plea, he the same Anthony, according to the form of the statute in such case lately made and provided, shews, and to the Court of our lord the King here sets forth these causes following; that is to say, because it does not appear by the said plea of him the said Richard Jones, that the said writ, called a bill of Middlesex, was delivered to the said Sheriff of the county of Middlesex to be executed in due form of law at any time before the trespass and assault by the said Richard above in manner and...
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