Boulstrod, e contra. The plaintiff in his declaration has averred that he came vi et armis and made an assault, and issue is taken on the special justification, which was de son assault demesne, and it is found for the plaintiff. Therefore, there vi et armis is averred inclusive, for he could not make a battery without vi et armis. There is an express precedent in the book of entries, fol. 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 quoad 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 venire vi et armis, and it was found for him, and he had damages. To which case the court agreed.
Henden, Serj., showed other error. That the trespass is alleged 9 Jun. 21 Jac., which was before the general pardon, and judgment pro quaerentequod defendens capiatur, while it should be sed pardonatur. To which it was answered that this is not part of the judgment. Sed, therefore,adjournatur. *Page 788