Odger's English Common Law

DEFENCES TO ASSAULTS AND BATTERIES. 319
(e) Self-defence.—It is also a defence if the assault com-
plained of was committed by the accused in defence of
himself, his wife, child or any one under his protection.
This right has been already discussed. 1 But the acts
adopted to repel an attack must in every case be reasonable
and commensurate with the force employed by the assailant,
and must not be continued after he has abandoned his
attack. Some assaults may also be justified on the ground
that they were committed in defence of a man's property ; but
this right is much more restricted than the right of self-
defence. Thus, if a trespasser (A.) enters B.'s house and
refuses to leave it, B. has a right to remove him by force, but
not to strike him, even if he cannot otherwise turn him out
of the house. If, however, while B. is seeking to eject A.
from his premises, A. assaults B., then B. may use any
degree of force necessary to defend himself and to remove A.
from the house. 2
(f) Lastly, consent is a defence to every common law
assault, but not as a rule to a battery ; for a battery is a
breach of the peace. But non-resistance which is obtained
by fraud is no consent. 3
There is an appreciable difference
between consent and submission or non-resistance, induced by
trickery or threats, 4 or resulting from weakness of intellect, 5
or from ignorance of the nature of the act proposed to be done.
Though every consent involves a submission, it by no means
follows that a mere submission involves consent. There can
be no consent unless the person assailed is sane and sober and
capable of exercising, and does exercise, a positive will in the
matter. 6 " In many cases, as where an act is done to a person
who is asleep or who has been drugged, there is no consent,
though there is no active dissent." 7
A prize-fight is a twofold battery, and the fact that each party consented
to receive the blows of the other is no defence for either. All persons
1 Aide, pp. 300, 301.
2 1 Hale, 486.
s B. v. Bosinski (1821), 1 Moo. C. 0. 19.
* B. v. Flattery (1877), 2 Q. B. D. 410.
6 E. v. Barratt (1873), L. B. 2 C. C. B. 81 ; but see R. v. Fletcher (1866), L. B. 1
C. C. B. 39, and B. v. Dee (1884), 15 Cox, 579.
6 B. v. Lock (1872), L. E. 2 C. C. B. 10.
' Per Quain, J., ib. at p. 14.