I Esp. Dig. 394. Fetter v. Beale, Yelv. 68. And if the plaintiff has once recovered damages for the assault and battery, he cannot afterwards recover, in a new action, for any further mischief or injury arising from the same battery. As where, after the plaintiff had recovered damages for the battery, a piece was cut out of his skull, in consequence of the former wounding, for which he brought a new action; but it was held not to lie; for the battery itself is the ground of the action, and the injury the measure of the damages; but here the ground of the action was gone, by the first recovery. So, if a battery has been committed by several, and a Broome v. Wooton, recovery had against one, such recovery may be pleaded in bar to an action brought against any of the others for the same battery. For plaintiff can receive but one recompense for the same injury. Mass, Stat. Feb. 13, 1787, sec. 1. Blackmore v. Tidderly, Ld. Raym. 1089. Macfadzen v.Olivant, 6 East's Rep. 388. 1 Selw. 27. Co, Litt. 282. b. Matthews v. Cary, 3 Mod. 137, 138. The statute of limitations is also a good plea in bar. By this statute it is provided, that actions of assault and battery must be commenced within three years next after the cause of such actions, and not after. If defendant mistakes the limitation of time, and pleads not guilty within six years, the plea will be bad on demurrer. From a recent case, it appears that this demurrer must be special. In framing justification in defence of possession, it is not necessary for the defendant to set forth the particulars of his title; it is sufficient for him to state that he was possessed, &c.; for this is merely inducement and conveyance to the substance of the plea. This being a transitory action, in which the time or place are merely inducement, the place cannot be traversed without special cause of justification; as if a constable of a town, of another county, arrests the body of a man that breaketh the peace there, he may traverse the county, because such justification is local; but he must not confine his traverse to the county merely, but must extend it to "all other places, saving the town whereof he is constable." When the defendant justifies under a writ, warrant, precept, or any other authority, he must set it forth in his plea, If a justification be at the same time and place, it is need- King & Ux. v. Phipless to aver that it is the same trespass. pard. Ld. Raym. 120. Where the defendant pleads a local justification, the serle v. Darford, plaintiff may vary in his replication, either in time or place, from the time or place laid in the declaration, and it will not be a departure. 1 Selw. 31. I Inst. 282, b. In framing pleas of justification, care must be taken, that the battery be admitted and confessed; otherwise, on de- 1 Selw. 30. murrer, the plaintiff will be entitled to judgment; for it is a rule of pleading, that the party justifying must shew and admit the fact. V. Of the evidence on the part of the plaintiff. 1 Stra. 68. As the plaintiff in this action may also prosecute the defendant, by indictment for a breach of the peace, the Jones v. White, plaintiff cannot, therefore, give in evidence, in the action, a conviction on an indictment for the same assault: For it is a rule of evidence, that no verdict shall be given in evidence, except where the parties have been the same; and in one case the commonwealth is a party, and in the other, the plaintiff. Nor is any thing to be admitted in evidence, of which both parties have not equal benefit; that is, such Esp. Dig. 396. as either party should be equally at liberty to give in evidence, in case it made for him. In this action, plaintiff cannot give in evidence remote, or not obviously probable effects of the battery, unless they are stated in the declaration, under a per quod. I Mass. T. R. 12. I Mass. T. R. 12. But obviously probable effects of the battery may be given in evidence, although not laid in the declaration; and the Avery v. Ray & al, jury are to judge whether these effects did, or did not, necessarily, or beyond reasonable doubt, result from the bruise or wound. As in this case: The declaration was general, containing no allegation of any special damage: nor was it stated that the wounding, bruising, &c. were followed by any particular ill consequence; yet the physician who attended the plaintiff in consequence of the injury, was allowed to testify as to a fever, which the plaintiff had, and which the physician thought might have originated from the battery. Same Case, 1 Esp. Dig. 397. Dickinson v. Davis, ↑ Stra. 480. Watson v. Christie, 2 Bos. & Pull. 224. Avery v. Ray & al. Same Case. Litt. sect. 485. 1 Esp. Dig. 398. VI. Of the evidence on the part of the defendant. There is a difference to be observed between what may be given in evidence on son assault demesne, and on not guilty. If defendant pleads son assault demesne, and plaintiff replies de injuria sua propria, &c. plaintiff shall not be allowed to give in evidence, a battery at another day or place than that laid in the declaration; but, upon not guilty pleaded, plaintiff may give in evidence, an assault and battery, at any place, or at any time, before action brought. In an action by husband and wife, for a battery of the wife, on the general issue pleaded, defendant shall not be allowed to prove, or go into evidence, that the woman is not wife of the plaintiff; it should be pleaded in abatement, that plaintiff might meet the objection fairly. In this action, defendant may give in evidence, in mitigation of damages, such provocations as do not amount to a justification; for if they amount to a justification, they ought to be specially pleaded. But the provocations thus offered in evidence, in mitigation of damages, must be immediate, and such as happened at the time of the assault. For where the intervening time between the provocations and the assault, is long enough for the restoration of the passions, the evidence will not be admitted. As in this case: The defendant offered to prove in mitigation of damages, that plaintiff had propagated a most infamous story, concerning the defendant's sister; and that this provoked him to the assault complained of: But it appearing, that nothing of this kind passed at the time of the assault, the court refused to admit the evidence. VII. Of the verdict, and damages. In assault and battery, if the jury find, upon the plea of not guilty, the defendant guilty in another town, or at another day, than the plaintiff has laid, yet shall the plaintiff recover, for it is transitory. As to the damages, it is a general rule, that the plaintiff shall have but one recompense in damages, though the assault and battery be committed by several, and though his action be brought either joint or several. Hummerston, Cro. Jac. 118. As where in assault and battery against two, one pleaded not guilty, and the other pleaded son assault demesne, and Crane & Hill, v. both issues were found for the plaintiff; it was held that there should be but single damages assessed. So where one defendant had pleaded specially, and plaintiff demurred, and had judgment on demurrer; it was adjudged that there should be but single damages assessed. Sir J. Heydon's Case, 11 Co. 7. Rodney v. Strode, Therefore where plaintiff declares jointly, the jury cannot sever the damages, so as to give greater against one Carth. 19. than another. But if the jury find otherwise, the plaintiff may enter a nolle prosequi against all but one, and have 1 Esp. Dig. 398. judgment against him. But in this, as well as other actions of trespass against Ibid. 399. several, the jury may find some guilty, and others not guilty. And in the case of an action against husband and wife, Ibid. the jury may find the wife guilty, and the husband not guilty; and so, vice versa. VIII. Of the costs. Mass. Stat. Mar. 11, By statute it is enacted, that no action shall be sustained in any court of common pleas, where the damage demanded does not exceed twenty dollars, unless by appeal from a 1808, sect. z. justice of the peace, saving such actions wherein the title to real estate is concerned; and if, upon any action originally brought before the court of common pleas, judgment shall be recovered for no more than twenty dollars, debt or damage, in all such cases, the plaintiff shall be entitled, for his costs, to no more than one quarter part of the debt or damage so recovered. IX. Of assault and battery, considered as an offence against the peace. An assault and battery is not only a private injury, but is also a public wrong; inasmuch as it involves a breach of the peace. The offender is therefore liable, not only to the injured party, in an action for damages, but also to the commonwealth, on indictment, in a court of record, or on complaint, before a justice of the peace; whose duty it is, in case of a high-handed assault and battery, to recognize Bl.Com. 216. 1795. Authority of justices of the peace in case of breach of the peace. the offender to appear and answer for his offence before the next court of common pleas, in the same county. By statute it is enacted, that every justice of the peace, Mass. Stat. Jan. 29, within the county for which he may be commissioned, may cause to be stayed and arrested, all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this commonwealth; or such others as may utter any menaces or threatening speeches; and upon view of such justice, confession of the delinquent, or other legal conviction of any such offence, shall require of the offender to find sureties for his keeping the peace, and being of the good behaviour; and in want thereof, to commit him to prison, until he shall comply with such requisition. And may further punish the breach of the peace, in any person that shall assault or strike another, by fine to the commonwealth not exceeding twenty shillings, and require sureties, as aforesaid; or bind the offender, to appear and answer for his offence, at the next court of general sessions of the peace, as the nature or circumstances of the case may require. By a subsequent statute, the jurisdiction of this offence Mass. Stat. Mar. 9, is transferred from the sessions to the common pleas; 1804, act 17, sect. 3 to appear before which last court, it is now the duty of the justice to bind the offender. What fine a justice may impose for an assault and battery. & 4. 1805, act 21, sect. 4. The offence. X. Of maiming; and how punished. By statute, it is enacted, that if any person, with set purMass. Stat. March 15. pose, and aforethought malice, or intention to maim or disfigure, shall unlawfully cut out or disable the tongue, put out an eye, cut off an ear, slit the nose, or cut off the nose or lip, or cut off or disable a limb or member of any person; every such offender, and every person privy to the intent aforesaid, who shall be present, aiding and abetting in the commission of such offence, or, not being presWhat court has cog- ent, shall have counselled, hired, or procured the same to be done, upon due conviction thereof in the supreme judicial court, shall be punished by solitary imprisonment for such term, not exceeding one year, and by confinement to hard labour;-or by imprisonment in the common gaol, for such term, not exceeding ten years, commencing from the expiration of such solitary imprisonment, as the justices of the said court, before whom the conviction may be, nizance of this of fence. Punishment. |