for an intentional and unlawful assault and battery, which is a violation of the right of personal liberty, and the injury cannot in any sense arise from any conduct, especially want of care, on the part of the injured. Contributory negligence can only be taken into consideration in cases where the liability of the defendant arises from a want of care on his part, occasioning injury to the plaintiff; it does not apply to an intentional injury, as an assault and battery.35 The fact that the fight was voluntary is admissible in mitigation of damages.

36

§ 200. Acts Constituting Assault-Illustrations.-An assault may be committed in as many various ways as human ingenuity can devise. An overt act accompanied by words relating thereto, or having the appearance, intention, and ability to do what is contemplated, will amount to an assault, and such act must be some effort or attempt toward consummation. An act, accompanied by threats, not directed toward consummation will not constitute an assault. Such, for example, as laying his hand on his sword, and making a contingent threat.37 But raising a stick at another within striking distance, 38 or doubling up one's fist at another, or clenching the hand,4 or drawing a pistol, accompanied by threats, con

39

40

35 Steinmetz v. Kelly, 72 Ind. 442, 37 Am. Rep. 170; Ruter v. Foy, 46 Iowa, 132; Barholt v. Wright, 45 Ohio St. 177, 4 Am. St. Rep. 535, 12 N. E. 185; Norris v. Casel, 90 Ind. 143; Grotton v. Glidden, 84 Me. 589, 30 Am. St. Rep. 413, 24 Atl. 1008.

36 Id.

37 Tuberville v. Savage, 1 Mod. 3, and other like cases in 39 Am. Rep. 712, note.

38 State v. Morgan, 25 N. C. 186, 38 Am. Dec. 714.

39 United States v. Myers, 1 Cranch C. C. 310, Fed. Cas. No. 15,845.

40 State v. Hampton, 63 N. C. 13

41 State v. Church, 63 N. C. 15.

Torts, Vol. I-29

stitute an assault. To advance from an opposite side of the street toward another, with a stick or an open knife, accompanied by threats,42 or to threaten a person with a dangerous weapon within striking distance, 43 or to advance with a knife or other dangerous weapon in an angry, threatening manner, or in a hostile attitude,* 44 or to strike a horse which another is driving,45 or to upset a chair or carriage in which a person is sitting,46 or while on horseback to attempt to ride another down,47 or to go into a private bedroom without permission to collect a bill,48 all constitute assaults. And a priest who ejects a person from a room while administering a rite of his church to a sick person is guilty of an assault.49 So is one who renews a fight after a former struggle is ended guilty of an assault.50 And a president of a public meeting, who orders a marshal to put a member who is making no disturbance out, is guilty of an assault.51 One who, in a rude and rough manner in such a way as to cause injury, pushes through a crowd, is guilty of an assault and battery.' Spitting in the face, or causing another to be medically examined against his or her will, is an assault.58 It is not an assault for a man to dress in woman's

42 State v. Martin, 85 N. C. 508, 39 Am. Rep. 711.

52

43 Liebstadter v. Federgreen, 29 N. Y. Supp. 1039, 61 N. Y. St. Rep. 621.

44 Smith v. State, 39 Miss. 521.

45 Clark v. Downing, 55 Vt. 259, 45 Am. Rep. 612.

46 Morton v. Shoppe, 3 Car. & P. 373.

47 Townsdin v. Nutt, 19 Kan. 282.

48 Richmond v. Fisk, 160 Mass. 34, 35 N. E. 103.

49 Cooper v. McKenna, 124 Mass. 284, 26 Am. Rep. 667.

50 Yeldell v. State (Tex., 1894), 25 S. W. 424.

51 O'Harra v. State, 21 Ind. App. 320, 52 N. E. 414.

52 Cole v. Turner, 6 Mod. 149.

53 Satter v. Braddell, 29 Week. Rep. 239, 50 L. J. Q. B. 448

clothes, in jest, and follow a woman into her house, without further overt acts.54

§ 201. Same Continued Pointing Unloaded Gun.— Upon the question as to whether or not it is an assault to point an unloaded gun at another there is a division of judicial opinion. One opinion which finds expression in the authorities is that aiming an unloaded gun at a person in such manner as to terrify him does not constitute an assault.55 Another view is that an assault is made out if one points at another a rifle or firearm without proof that it was in fact loaded, that being presumed, whether or not it was loaded being a matter of defense.56 This matter is regulated by statute in some states, making it a criminal assault to point at another an unloaded gun.57 And this is the sound doctrine, whether provided by statute or not, viz., it is an assault to point a gun apparently loaded at another.58

§ 202. By Officer.-The same general principle governing the conduct of individuals in the exercise of private rights applies to the acts of an officer in

54 Nelson v. Crawford, 122 Mich. 466, 80 Am. St. Rep. 577, 81 N. W. 335.

55 Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42; State v. Godfrey, 17 Or. 300, 11 Am. St. Rep. 830, 20 Pac. 625; People v. Yslas, 27 Cal. 633; Degenhardt v. Heller, 93 Wis. 662, 57 Am. St. Rep. 945, 68 N. W. 411; State v. Napper, 6 Nev. 115; State v. Triplett, 52 Kan. 678, 35 Pac. 815; Klein v. State, 9 Ind. App. 365, 53 Am. St. Rep. 354, 36 N. E. 763.

56 State v. Herron, 12 Mont. 230, 33 Am. St. Rep. 576, 29 Pac. 819; Keefe v. State, 19 Ark. 192; Beach v. Hancock, 27 N. H. 223, 59 Am. Dec. 373; Crow v. State, 41 Tex. 468; 1 Russell on Crimes, 1019; State v. Smith, 2 Humph. 457; Regina v. St. George, 9 Car. & P. 483; State v. Shepard, 10 Iowa, 126; Commonwealth v. White, 110 Mass. 407; State v. Archer, 8 Kan. App. 737, 54 Pac. 927. 57 Ohio Rev. Stats., sec. 6822.

58 2 Bishop's Criminal Law, sec. 32.

the exercise of his official duties. He cannot transcend his official authority, or perform the duties of his office in a negligent or careless manner, or disregard the rights of others without subjecting himself to civil liability. He cannot exercise or use any greater force in the performance of his duties than is reasonably necessary to a proper exercise thereof. His own judgment, though honestly formed, even though he does not intend to transcend his authority, is not conclusive. The force which he may apply to enable him to serve a legal precept must be no greater than is necessary to accomplish the purpose." He cannot be held for an assault and battery when he has not used more force than was necessary in performing his legal duty.60 If the offender offers active resistance, the officer may use whatever force may be necessary to overcome the same, and sufficient to compel submission to arrest.

61

59

§ 203. Assault by Owner in Recapture of Personal Property. A determination of the extent of the right of an owner to retake possession of personal property depends somewhat upon the manner or circumstances under which the wrongdoer obtained the same. The owner's possession may be only momentarily disturbed, or the goods may be taken away by trespass in the absence of the owner and without his knowledge; or goods may be taken by a thief, or by means of false representations, as where they are purchased by false representations.62 There is apparent con

59 Murdock v. Ripley, 35 Me. 472; Finnell v. Bohannon, 44 S. W. 94, 19 Ky. Law Rep. 1587.

60 Baker v. Barton, 1 Colo. App. 183, 28 Pac. 88.

61 Finnell v. Bohannon, 19 Ky. Law Rep. 1587, 44 S. W. 94. 62 Hodgeden v. Hubbard, 18 Vt. 504, 46 Am. Dec. 167; Talcott v. Henderson, 31 Ohio St. 162, 27 Am. Rep. 501; Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105; Buffington v. Gerrish, 15 Mass. 156, 8 Am. Dec. 97.

flict among the cases as to the extent of the right of the owner in the recapture of his goods. Some maintain that the owner can retake possession only when he can do so in a peaceable manner, without resorting to the use of force, while others hold that he can use whatever force may be reasonably necessary to accomplish the purpose. Those sustaining the latter view are cited in the note.63 It has been a fundamental principle of the law from the earliest times that an owner may retake possession of his personal property when wrongfully detained from him, so long as he does so in a peaceable and not in a riotous or violent manner.64 The rule as stated by Blackstone has found general expression among the courts and writers, and has always been limited to cases where property is in the possession of ananother under such circumstances as that the retaking cannot be construed to mean or constitute a defense of property. It has been well stated that the law does not demand that an owner shall remain passive while he sees a thief or trespasser remove property from his possession. When the owner in such cases attempts to or does immediately recapture his own, the other rule, that a man may protect or defend his property to the extent that he may use such force as under the circumstances seems necessary, applies. The force used in such cases must be entirely on the defensive.66 The conflict among

63 Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80; Johnson v. Perry, 56 Vt. 703, 48 Am. Rep. 826; White v. Twitchwell, 25 Vt. 620, 60 Am. Dec. 294; Mills v. Wooters, 59 Ill. 234.

64 Barnes v. Martin, 15 Wis. 240, 82 Am. Dec. 670; Shipman v. Horton, 17 Conn. 481; Chamberlain v. Smith, 44 Pa. St. 431; Spencer v. McGowen, 13 Wend. 256; Richardson v. Anthony, 12 Vt. 273; State v. Dooley, 121 Mo. 591, 26 S. W. 558; Scribner v. Beach, 4 Denio, 448, 47 Am. Dec. 265.

65 Cooley on Torts, 50.

66 Gyre v. Culver, 47 Barb. 592; Johnson v. Patterson, 14 Conn.