#### Greewell vs. Ireland.

Pasch. 3 Car.

QUARE vi et armis in ipsum insultum fecit, &c. and declares on a battery. The defendant says quoad venire vi et armis, non culp. without saying et de hoc ponit so super patriam, et quærens similiter; et quoad residuum transgress. he justifies by a special plea et paratus est verificare, &c. The plaintiff replies, quoad defendens prædict. vi et armis, in ipsum insultum secit the et anno, &c. supradict. et verberavit, et hoc paratus est verificare. Issue was taken on the justification and found for the plaintiff. Now it was moved in arrest of judgment, that there is a discontinuance; for the defendant says quod quoad vi et armis, non culp. and does not say, et de hoc ponit fe supra patriam, and the plaintiff similiter as he ought, and without vi et armis, there is no fine due to the King.

Boulstrod, e contra.

The plaintiff in his declaration has averred that he came vi et armis and made an assault, and blue is taken on the special justification, which was de fen assault demesne, and it is found for the plaintiff. Therefore, there vi et armis is averred inclusive, for he could *216not make a battery without vi et armis. There it an express precedent in the book of entries, sol. 666.

But on the other part; Brook’s case. Where the action was brought in the county of Surry, and the defendant pleaded a special justification in London, et quod vi et armis, non culp, and issue joined, and the special justification was found for the plaintiff in London, and afterwards he took out a nisi prius, in order to find the ventre vi et armis, and it was found for him, and he had damages. To which case the court agreed.

Henden, Serj.

shewed other error. That the trespass is alledged 9 Jun. 21 Jac. which was before the general pardon, and judgment pro quærente quod defendens capiatur, while it should be sed pardonatur. To which it was answered that this is not part of the judgment. Sed, therefore, adjournatur.