was always admitted that if a squatter or mere trespasser, who had no title to the possession, has, whether by accident or by the contrivance of the rightful possessor, left the premises vacant, the latter may then lawfully enter with or without force, and when the squatter returns may rightfully defend his newly-regained possession against such squatter, and use the necessary force and no more for that purpose and to that extent. And the general rule is, that, if a freeholder entitled to possession finds one in possession who has no right as against him, he may use force to obtain the possession; and though he may commit an offence for which he may be punished, yet he is entitled to keep the possession so won, and the ejected person cannot maintain any civil remedy.2 There may be an offence punishable criminally, but that will not affect the rightfulness of the acquired possession.

Turning out trespasser with assistance of constable.-It frequently happens, that the occupier of a house, in desiring to turn out an unwilling guest, visitor, or trespasser, calls to his assistance a constable. It is true that the constable in such a case is often requested, and if so it is his duty to attend as a spectator, and on the ground that a breach of the peace is likely to be committed. He may on request assist in expelling the intruder; but in so acting the constable has no other or greater power than any other person acting at the occupier's request. He may be a convenient witness in the event of future proceedings, but unless some breach of the peace occurs in his presence on the part of the intruder, the constable has no right to take such intruder into custody. By refusing to quit the premises, such intruder may render himself liable to a civil action, but he commits no crime by merely remaining longer and giving more trouble and annoyance than he ought to do. If, without being first struck, he strike the occupier, he may then be apprehended by the constable and taken before a justice and charged with an assault. But until such wrong is committed, all that the constable can justifiably do is merely to assist the occupier in pushing out the intruder, using no more force than is necessary; and if the intruder's conduct is such as reasonably appears 1 Browne v Dawson, 12 A. & E. 629. Harvey v Bridges, 14 M. & W. 442; 1 Exch. 261., Jones v Chapman 19 L. J. Exch. 456.

2

likely to lead to an immediate breach of the peace, the constable may then, and not before, apprehend such intruder for such conduct, and charge him with an assault, or the intruder may be bound over to keep the peace.1

Assaults in prize-fighting. Though the essence of an assault is its being committed against the will of the assaulted, yet this element is wanting in the case of a mutual fight between two persons with weapons or without. In such cases, if one sue the other for the assault, leave and licence cannot be pleaded in defence, because the law views such a practice as illegal, and any licence founded on it is void. It is true the damages in such a case would be small if the remedy be by action, and the punishment small if the remedy be by indictment. Prizefights however are frequently brought about, and lead sometimes to charges of murder or manslaughter, and on that account will be noticed under those heads of law. Even in their mildest form, these fights involve all the spectators in the common guilt of committing an assault or breach of the peace. And on that account, if one of the combatants strike a bystander in the heat of the quarrel, he will be liable to an action, though the damages recovered might be small on account of the surrounding circumstances.3

Assault in executing legal process. As a general rule, assaults committed by officers of the law, such as constables, bailiffs of the sheriff, and others duly authorised, stand on a different footing from assaults committed by ordinary subjects. As between individuals an assault is prima facie a wrong, and requires to be justified on one or other of the grounds already stated. But as between a constable, or bailiff, and another party, as it is the duty of the former in executing the process of the law to arrest individuals, and an arrest cannot usually be made without an assault, thus, what is with difficulty justi

1 Wheeler v Whiting, 9 C. & P. 265. 2 Boulter v Clark, Bull. N. P. 16, 17. 3 James v Campbell, 5 C. & P. 372.

To discourage and render more difficult the associating of persons for prize-fights, the legislature has imposed a fine of two hundred to five hundred pounds on any railway company that knowingly provides special trains to facilitate such meetings.-31 & 32 Vic. c. 119, § 21.

fiable in the one case may be easily justifiable in the other. It is not intended here to state all the circumstances and occasions on which a constable or bailiff may arrest an individual, as much of this part of the law belongs more properly to the law of arrest; but it often happens that excessive violence is used in the course of an arrest, provoked as it sometimes is by the conduct of the party arrested. In such cases the chief question is, whether such violence was excessive and unnecessary, having regard to the conduct of the party arrested, and to the assumed fact, that the warrant or authority of the constable or bailiff was regular and lawful.1 It may sometimes be necessary to touch a person even to serve him with process. And in cases of arrest it is to be remembered, that a constable has power to arrest only under certain circumstances, and if those circumstances do not exist, and he has no reasonable cause for what he did, he commits an assault for which an action of trespass is the remedy.3

It is also a fundamental rule, that in all cases, other than arrest for felony or treason, or such indictable offences as require no warrant to authorise the arrest, the constable must, at the time of the arrest, have the warrant in his personal possession ready to be produced and shown to the party arrested. The law is tender of

the liberty of all men, and no one is bound, in the cases last mentioned, to surrender his person to the custody of another, except when some lawful warrant is shown, which puts all doubt as to the legality of the cause of arrest at an end. Thus, an arrest for disobeying an order of justices or other like offence may be authorised by statute when a warrant of a justice of the peace is obtained: but in such cases it is not enough to justify the actual arrest, that a warrant has been actually obtained. It is further necessary that it be forthcoming for the inspection and satisfaction of him whose liberty is to be infringed, and who may want to know why his liberty is infringed. And if the warrant is not produced on request, the party assaulted may resist

1 R. v Milton, M. & M. 107 ; 3 C. & P. 31; Imason v Cope, 5 C. & P. 193; Levy v Edwards, 1 C. & P. 40. 2 Harrison Hodgson, 10 B. & C. 445. 3 Stocken v Carter, 4 C. & P. 477; R. v Birnie,

1 M. & Rob. 160.

to any extremity and at all hazards in defence of his freedom, and that wholly irrespective of whether there may or may not be good cause for a warrant.1

Remedies for assault generally.-An assault is a violation of legal right, which has this remarkable feature, that the assaulted person has usually three alternative remedies. The motive of an assault is of somewhat ambiguous character. It is seldom purely malicious, and is more frequently the result of sudden passion or anger, and thus has little of that settled malice which is the usual ingredient of crime. It is also usually followed rather with insult than pain, and so a criminal punishment of a severe kind is not called for. Yet some satisfaction is due to wounded feelings, or to that moderate pain which usually results. There being much variety in the attendant circumstances, the law assigns damages by way of action as one remedy, or in the more serious cases, an indictment. But both these remedies are tedious, and hence there is a third remedy of a summary and expeditious character, which is administered through the intervention of justices of the peace, who have power either to fine or to imprison the offender.2

Punishment of assault by justices of the peace. When it is deemed suitable to resort for a summary remedy to justices of the peace, they may hear a complaint by or on behalf of the party aggrieved, for any unlawful assault or battery; and if the charge is proved, they may commit the defendant to the common gaol or house of correction, with or without hard labour, for a term not exceeding two months. Or the justices may merely impose a fine not

Galliard v Laxton, 2 B. & S. 363; Codd v Cabe, 45 L. J., M. C. 101.

2 This notion of treating an assault as partly a civil and partly a criminal offence is by no means modern. Solon was said to have made a great improvement in the law of Athens when he allowed third parties to prosecute for assaults or personal injuries, for thereby it was said he gave all an interest in enforcing the law.— Plut. Sol. And this was only another way of saying that he made assault punishable criminally as well as civilly. And a glimmering of this state of the law soon arises even among barbarous tribes, for among the Kaffirs when an assault is committed, the chief of the tribe prosecutes and gets his fine, the impressive maxim being, that no man can eat his own blood.-Maclean's Kaffers, 35.

exceeding, together with costs, five pounds; and failing payment of such fine, then the defendant may be imprisoned with or without hard labour for two months, unless the fine and costs be sooner paid.1

It is to be observed, that, though an assault may be treated as an indictable offence, and so may be prosecuted by any person, yet in cases before justices of the peace, the complaint must be made "by or on behalf of the party aggrieved," otherwise the justices cannot entertain it. Where children or idiots are assaulted, it is reasonable to allow the complaint to be made by a parent or guardian, having the care of the person assaulted; but in other instances, if a mere stranger interfere, and the assault is not an aggravated one, as is noticed in the next paragraph, the proceeding should be by indictment.

Justices punishing for assaults on women and children.— Where the assault is an aggravated assault, by which is meant an assault or battery made upon any male child under fourteen, or upon any female of whatever age, and whether the complaint is made on behalf of the party aggrieved or otherwise, the justices may in like manner hear and decide the case, if in their opinion the assault cannot be adequately punished as a common assault. And if the aggravated assault is proved, the justices may imprison the offender for six months with or without hard labour, or may impose a fine of twenty pounds, and failing payment, a like imprisonment. And over and above this punishment, they may order the offender to enter into recognizances to keep the peace, and be of good behaviour for six months after the expiration of the sentence.2

In

Though a common assault can only be punished by justices, when the party aggrieved or some one on his behalf complains, it is thus otherwise when the assault is committed on a child under fourteen, or on a female. the latter case any person whatever may prefer the complaint, and thereby procure the punishment, though, as will be seen, the punishment may not be final, unless the party assaulted is the complainant.

Justices are to give certificate in assault cases.-The justices may not only decide cases of assault, but their decision is declared to be final and conclusive in several 1 24 & 25 Vic. c. 100, § 42. 2 24 & 25 Vic. c. 100, § 43.