Neutral Citation Number: [1834] EWHC Exch J79
(1834) 172 ER 1419, Exch Ch  

IN THE COURTS OF EXCHEQUER

  08 December 1834 

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Between:

MORIARTY
v
BROOKS

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Assault. The declaration stated, that the defendant had assaulted, beaten, and wounded the plaintiff. Pleas, first, to the whole declaration, not guilty; second (as to the assault and battery only), son assault demesne; third (to the assault and battery only), a special plea, which stated that the defendant was possessed of a public-house, and that the plaintiff was there making a noise and disturbance, and conducting himself in a quarrelsome manner; that the defendant requested him to depart, and that he refused to do so; and that the defendant then gently laid hands on him, and removed him from the house. Replication, de injuria.

From the evidence on the part of the plaintiff, it appeared that the plaintiff was in the defendant's public-house, and that, in consequence of a dispute between them respecting payment for a pot of half-and-half, the defendant struck the plaintiff, who thereby received a cut under the eye, which bled.

Bompas, Serjt., in addressing the jury for the defendant, said that he must call witnesses, unless the jury were satisfied by the evidence that the defendant was entitled to a verdict.

Lord Lyndhurst, C. B.: You have no right to ask the jury their opinion in that way; you must either call your witnesses, or else close your case without saying anything about them.

The evidence for the defendant proved, that the plaintiff was in the defendant's public-house, and that, after the dispute respecting the pot of half-and-half, the defendant came up to the plaintiff as if to attack him, and that the plaintiff then put himself into a fighting attitude, and a scuffle ensued, in which the plaintiff received  a cut over the eye, which bled; and that the defendant did not turn the plaintiff out of the house, but, a the conclusion of the scuffle, let him stay where he was before.

Lord Lyndhurst, C. B.: If a person comes up to attack me, and I put myself in a fighting attitude to defend myself, this is not an assault on my part, and will not make out for that person a plea of son assault demesne. Besides, it appears that the defendant did not turn the plaintiff out; he only laid hold of him, and struck him.

Bompas, Serjt.: If the defendant laid hold of the plaintiff for the purpose of turning him out, it would be sufficient to support the plea.

Thesiger, in reply: The special plea does not go to the wounding; and the plaintiff is clearly entitled to a verdict on that part of the case. If the defendant committed the assault in endeavouring to turn the plaintiff out, I admit that the special plea is proved; but, if he did it merely to wreak his vengeance on the plaintiff, even that part of the defence will frail.

Lord Lyndhurst, C. B.: The first question is, whether this assault was committed by the defendant in endeavouring to turn the plaintiff out of the house. If the jury think so, I think that the special plea is made out; and whether too great violence was used is immaterial, as there is no new assignment. The special pleas do not justify the wounding; and, if there was a wound, the plaintiff is entitled to recover for that.

Bompas, Serjt.: I should submit, that what is proved does not amount to a wound.

Lord Lyndhurst, C. B.: The definition of a wound in criminal cases is an injury to the person, by which the skin is broken. If the skin is broken, and there was a bleeding, that is a wound.

His Lordship (in summing up) 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.

Verdict for the plaintiff on all the issues:
Damages 1s.
Thesiger, and Mansel, for the plaintiff.
Bompas, Serjt., for the defendant.