If, in an action for an assault, the defendant plead that he was possessed of a public house, in which the plaintiff was making a disturbance, and that, the plaintiff refusing to depart, the defendant laid hands on him, and turned him out. This plea is proved, if it be shewn. that, in consequence of the plaintiff refusing to go, the defendant assaulted him, with a view of turning him out of the house, though in fact the defendant could not succeed in actually turning the plaintiff out. If A. comes up to attack B., and B puts himself into a fighting attitude to defend himself, this is not an asault by B., and will not, in an action by B. against A for an assault, support a plea by A. of son assault demesne. In criminal cases the definition of a wound is, an injury to the person, by which the skin is broken. A defendant’s counsel, in addressing the jury, has no right to say to the jury that he shall call witnesses, unless they inform him that they are satisfied that the defendant is entitled to a verdict as the case stands, he must either call his witnesses, or close his case without saying anything about them.
Lord Lyndhurst CB said: ‘If the violence which occurred took place in an endeavour by the defendant to turn the plaintiff out of the house, the third plea is proved. However, this plea does not profess to justify any wounding; therefore, if there was a wound, the plaintiff is entitled to recover for that. It is proved that the plaintiff was cut under the eye, and that it bled; and I am of opinion that that is a wound. If you think that the assault was not committed in an endeavour to turn the plaintiff out of the house, the justification entirely fails.’
Judges:
Lord Lyndhurst CB
Citations:
[1834] EWHC Exch J79, [1834] EngR 1141, (1834) 6 Car and P 684, (1834) 172 ER 1419
Links:
Torts – Other
Updated: 23 July 2022; Ref: scu.317817
