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![handle is hein.slavery/ssactsengr0545 and id is 1 raw text is: WEBBER V. LIVERSUCH
[51] Wednesday, Dec. 9. At Guildhall.
WEBBER v. LIvERSUCH.
(Where to an action for an assault the defendant justifies in defence of his master,
the plaintiff cannot shew his assault on the master to have been justifiable on
the general replication, de injuria sua propria, but must new assign.)
Trespass for ail assault and battery, to which the defendant pleaded three
several pleas; viz. first, not guilty; secondly, that the plaintiff having made an
assault upon James Liversuch, the defendant's father and master, the defendant
in his defence, molliter manus imposuit, &c. ; thirdly, that James Liversuch and
plaintiff being fighting, defendant molliter manus imposuit, to preserve the peace.
To these justifications the plaintiff made the general replication, de injuria sua
propria.
The first witness called by the plaintiff proved, that before the defendant com-
mitted any assault on the plaintiff, the plaintiff had struck the defendant's father ;
but he said further, that this assault on the father, James Liversuch, was not made
until the latter had first assaulted the plaintiff.
Lord Kenyon said, that whether the plaintiff could have availed himself in the
present action of the circumstance of James Liversuch the father having first com-
mitted al assault, it was not now necessary to decide ; but on these pleadings the
defendant must succeed. Though James Liversuch the father had made the first
assault on the plaintiff, still when he struck James Liversuch he was guilty of an
assault (a)'; and if the father had brought an action against the present plaintiff, he
could only have [52] defended himself by pleading son assault demesne ; a general
denial of the assault would not have been sufficient. So in this case the plaintiff,
supposing him entitled to avail himself of James Liversuch's misconduct, could only
do it by making a new assignment. The present replication only put in issue the
assault made by the plaintiff on the defendant's father, and not whether that assault
was justifiable.
Nonsuit (b).
Erskine and Baldwin for the plaintiff.
for the defendant.
Friday, Dec. 11.
SMITH V. GIBSON AND WIFE.
(Money advanced to place out an infant apprentice, not recoverable on a promise
by infant to repay, as not being for necessaries.)
Assumpsit for money paid, laid out and expended to the use of the wife before
her coverture.
The plaintiff and the wife of the defendant were brother and sister, and each
had a sum of £300 as a fortune. In the year 1792, the sister being then under age,
the plaintiff paid a sum of £40 to a woman of the name of Smith, as a premium
for taking the sister as an apprentice to learn millinery ; and a letter was read
from the sister to the plaintiff, wherein she expressed her gratitude to him for this
mark of his kindness, and hoped it would be in her power to pay him soon. But
she was under age [53] when this letter was written, and no subsequent promise
was proved.
Lord Kenyon declared himself clearly of opinion that this sum of money could
not be considered as necessaries, and therefore that the payment of it could not be
enforced in a Court of Law. Where a man does an act of generosity for an infant, he
relies wholly on the generosity of the infant to make a suitable return. The infant
ought to make a due return, but it is a duty of imperfect, not of legal obligation (a)2.
(a)' Vide Fish v. Scott, Peake's Cases, p. 135.
(b) Vide King and Ux. v. Phippard, Carth. 280.
(a)2 Sed hide Co. Litt. 172 (a), where it is said an infant may bind himself to
pay for his necessary meat, drink, apparel, necessary physic, and such other
necessaries, and likewise for his good teaching and instruction, whereby he may
profit himself afterwards. In I Sid. 112, Pickering v. Gunning; Palm. 528 ; Sir
William Jones, 182. See Trueman v. Hurst, I T. R. 40.
PEAKE ADD. OAS. 51.](ViewImageLocal?handle=hein.slavery/ssactsengr0545&div=1&collection=&method=preview&ext=.png&size=3)