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Entered according to act of Congress, in the year eighteen hundred and seventy-six,

BY BANKS & BROTHERS,

In the oflice of the Librarian of Congress, at Washington.

CHARLES VAN BENTHUYSEN & SONS,
Printers, Stereotypers, Papermakers and Binders,

Alhany and Castleton, N. Y.

THE LAW OF TORTS.

CHAPTER XII.

OF ASSAULT AND BATTERY, AND WRONGFUL IMPRISONMENT.

Bection I.-Of assault, battery, and mayhem.—What constitutes an assault

Assaults resulting from negligence-Assaults by constables-Handcuffing unconvicted prisoners—Assault and battery-Mayhem and wounding—Excusable and unjustifiable assaults—Self-defence-Defence of the possession of a house or close, or of property-Resistance to a forcible entry-Preservation of the public peace-Battery and wounding in self-defence, or in defence

of the possession of tenements or chattels. SECTION IL-Of false imprisonment.-Constructive imprisonment-Arrest by

warrant of justices-Arrest by constables, peace-officers, and private individuals, without warrant-Arrest for a misdemeanor-Arrest of the wrong party-Arrest for malicious injuries to property and certain indictable offences Arrest for the purpose of preserving the public peace-Arrest of persons disturbing divine service, of vagrants, and indecent persons-Arrest under the Merchant Shipping Acts–Of a principal by his bail-Arrest for offences within the metropolitan police district-Arrest hy servants of rail

way companies—Detention of deserters-Imprisoninent of lunatics. SECTION III.-Of actions for an assault and battery, and for false imprisonment.

-Statutory protection of constables and their assistants from vexatious actions-Limitation of actions and notice of action—Tender of amends-Payment of money into court-Parties to be made plaintiffs and defendantsPleadings, defences, and evidence-Damages recoverable--Co-trespassersSpecial damages-Mitigation of damages.

SECTION I.

OF ASSAULT AND BATTERY, AND MAYHEM.

787 What constitutes an assault.—Every laying of hands on the person

of another, and every blow or push, constitutes an assault and trespass, in respect of which an action for damages is maintainable, unless the act can be justified or excused on the ground that it was done

AD. VOL. II.-44

in self-defence, or in defence of one's property, or in obedience to some legal warrant or authority, or was the result of inevitable accident(w). Every attempt, also, to offer with force and violence to do hurt to another, constitutes an assault, such as striking at a person with or without a weapon ; holding up a fist in a threatening attitude sufficiently near to be able to strike(x); presenting a gun or pistol, whether loaded or unloaded, in a hostile and threatening manner, within gun-shot or pistol-shot range, and near enough to create terror and alarm(y); riding after a man with a whip threatening to beat him, or shaking a whip in a man's face(z); advancing with hand uplifted in a threatening manner with intent to strike, although the person is stopped before he gets near enough to carry the intention into effect(a); hitting at one man and unintentionally striking another(6); cutting off the hair of a pauper in a poor-house(c); throwing water upon the person of another(d); and any gesture or threat of violence exhibiting an intention to assault, with the means of carrying that threat into effect(e). But, as regards threatening gestures, if the parties at the time the gestures are used are so far distant from each other that immediate contact is impossible, there is no assault($).

Words accompanying a threatening gesture may deprive that gesture of the character of an assault. Thus, where a man laid his hand on his sword in a threatening manner, but accompanied the

(w) See Bullock v. Babcock, 3 Wend. 391.
(4) Murray v. yne, 42 Mo. 472. Ha v. People, 1 Hill, 351.

(y) State v. Cherry, 11 Ired. 475. Beach v, Hancock, 7 Foster (N. H.), 223. Richards v. State, 1 Sneed, 606. State v. Smith, 2 Humph. 457. And see Higginbotham v. State, 23 Texas, 674. A person who holds a cocked pistol in his hand and says: “Now I am ready for you," but without any attempt to use the pistol does not thereby commit an assault. Warren v. State, 33 Texas, 517. Nor will a person be gailty of an assault by presenting a pistol or gun at one who is out of range. Tarver v. State, 43 Ala. 354. But where a person within pistol range of another draws a pistol and bids the other be off or he will shoot him, this is an assault although the pistol was not cocked or presented. State v. Church, 63 N. C. 661. But in the absence of any words or other circumstances indicating an intention to fire, the act would not amount to an assault. Woodruff v. Woodruff, 22 Ga. 237.

(2) State v. Rawles, 65 N. C. 334.

(a) Bac. Abr. ASSAULT. Martin v. Shopper, 3 C. & P. 373. Stephens v. Myers, 4 C. & P. 350. Rex v. St. George, 9C. & P. 493. See State v. Malcolm, 8 Clarke (Iowa), 413 ; Barnes v. Martin, 15 Wis. 240 ; State v. Vannoy, 65 X. C. 532.

Riding a horse so near a person as to endanger his safety, and to create a belief in his mind that it is the intention of the rider to ride over him is an assault. State v. Sims, 3 Strobh. 137. So an attack upon the horse harnessed to the carriage in which a person is riding is an assault upon the person in the carriage. De Marentille v. Oliver, 1 Penning. 380.

(6) James v. Campbell, 5 C. & P. 372.
(c) Forde v. Skinner, 4 C. & P. 239.
(d) Pursell v. Horne, 3 N. & P. 564.
(e) Read o. Coker, 13 C. B. 860.
() Pollock, C.B., Cobbett v. Grey, 4 Exch. 744. See Tarver v. State, 43 Ala. 854.

gesture with the words, “ If it were not assize-time I would not take such language from you,” it was held that the words showed that the party did not then intend to use his sword, and that there was 'no assault(g.) And Lord Abinger is reported to have held, that if a man presents an unloaded pistol at another, and at the same time says that he does not intend to shoot him, this is no assault(h).

The mere touching of a person, without force or violence, for the purpose of drawing his attention to some matter or another, is not an assault, unless it is done in a hostile or insulting manner(i); nor is it an assault to push gently against the person of another in endeavoring to make a way through a crowd; but if it is done in a rude and violent manner, or there is any struggling or pushing calculated to do harm, there will be both an assault and a battery(1).

An assault must be an act done against the will of the person assaulted, and therefore it cannot be said that a person has been assaulted by his own permission. If the act is done in the course of sport between persons taking liberties with each other by mutual consent,

there is no assault(k). 788 Assaults resulting from acts of negligence. An assault may be com

mitted without any design or intention to commit an assault, for if the person of one man is violently struck through the carelessness and negligence of another, this is an assault, and it is no answer, as we have seen, to say that it was done unintentionally (ante, pp. 465, 466). Thus if a man drives against and violently upsets the plaintiff in his carriage, and knocks him down, or overturns the chair in which he is seated, the person thus striking the plaintiff, or knocking him down, is guilty of an assault, although he had no intention to commit an

assault(1). 789 Assaults by constables - Handcuffing unconvicted prisoners. - If a

constable orders an unconvicted prisoner to be handcuffed when there is no attempt to escape, nor any reasonable ground to fear a rescue, the constable will be responsible in damages for an assault(m).

(g) Tuberville v. Savage, 1 Mod. 3. See State v. Crow, 1 Ired. 376.
(h) Blake o. Barnard, 9 C. & P, 628.
(1) Coward v. Baddeley, 4 H. & N. 481 ; 28 Law J., Exch. 261.
g) Cole v. Turner, 6 Mod. 149.

(Christopherson v. Bare, 11 Q. B. 477. Reg. v. Martin, 9 C. & P. 214. R. 0. Johnson, 34
Law J., M. C. 192. Otherwise where the act is done under an agreement to fight. Adams v.
Waggoner, 33 Ind. 531. Stout v. Wren, 1 Hawks, 420. Logan v. Austin, 1 Stew. 476. Bell v.
Hansley, 3 Jones (N. C.), 131. Dole v. Erskine, 35 N. H. 503.

(1) Hopper o. Reeve, 7 Taunt. 698. (m) Post, ch. 18, s. 2. Griffin o. Coleman, 28 Law J., Exch. 134 ; 4 H. & N. 265. Wright v.. Court, 4 B. & C. 536.

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