Art. 3. Elements of the Wrong.

It has been held that mere passive obstruction of the ingress of another, even though by design, is not assault. Innes v. Wylie, 1 Car. & K. 257.

The general principle seems to be that any mere omission will not constitute an assault. 1 Wait's Actions and Defenses, 334, citing Smith's Case, 2 Car. & P. 449.

The mere touching or placing of hands upon a person of another for the purpose of getting his attention is not a battery; the intent to do injury must occur with the use of unlawful violence. The slightest degree of force, however, constitutes violence. Clayton v. Keeler, 18 Misc. Rep. 488, 42 N. Y. Supp. 1051.

The case of Laidlaw v. Sage, 158 N. Y. 73, in which it was claimed by the plaintiff that the defendant being threatened by a third person with injury or death by dynamite, interposed the person of the plaintiff between such third person and himself, was largely in the nature of an action for assault, and more particularly those classes of assault in which the defense may be made upon the ground that the act was an involuntary act. The reader is referred to the case itself for a thorough discussion of the principal facts and the decision founded upon them. Among other things it was held that where one is under the influence of a present danger the law presumes that an act or omission done. or neglected under such influence was done or neglected involuntarily, citing Moak's Underhill on Torts, 14; Scott v. Shepard, 2 W. Bl. 894; Vandenburgh v. Truax, 4 Den. 464.

The case also holds that the principle of proximate cause was not applicable under the state of facts, and that the act of one person cannot be said to be the proximate cause of the injury when the act of another person has interposed and directly inflicted it. That the cause of injury cannot be attributed to a cause unless without its operation it would not have happened. Also, that the bare possibility that the injury was caused by the act of the defendant is not sufficient if it might have been occasioned by one of two causes, for one of which the defendant was not responsible. Also, that in order to justify the submission of an issue to the jury the claim of the plaintiff upon which the liability of the defendant is to rest must be shown by sufficient proof, and that mere conjecture, surmise, speculation, bare possibility, or mere scintilla of evidence is not sufficient.

It would seem as if the defense of involuntary act in assault and

Art. 4. Defenses.

battery would bear great analogy to the doctrine of involuntary act as established in cases for negligence.

Upon the subject of involuntary act, see also Vandenburgh v. Truax, 4 Den. 464, supra, in which it was held that one is liable for the consequences of his act, although he did not intend to do the particular act which followed. But it should be noted that the act in question was held to be illegal and mischievous, which was likely to prove injurious to others.

As a general rule it may be stated that arresting a person, although done by a private citizen and without process, is not an assault if the person arrested has committed a felony. People v. Adler, 3 Park. Cr. 249; People v. Wolven, 7 N. Y. Leg. Obs. 89; Gyre v. Culver, 47 Barb. 592.

Wait says that an assault is sufficient to deserve a blow, unless the battery be excessive. 1 Wait's Actions and Defenses, 342, citing Hazell v. Clark, 3 Harr. (Del.) 22; Dele v. Word, 7 Moore,

33.

The right of self-defense and its limitations is discussed in Elliot v. Brown, 2 Wend. 497, where the early cases are cited. The court said: "Although Elliot might have committed the first assault, yet if Brown used more violence than was necessary to his own defense, he became a trespasser and was liable to pay damages to the plaintiff." The court cites the statement of Holt, Ch. J., in Cockroft v. Smith, Salk. 642, where he said: "That for every assault, he did not think it reasonable a man should be

Art. 4. Defenses.

banged with a cudgel." The court also discussed the case of State v. Wood, 1 Bay, 351, wherein the court said that "it is a justification to the defendant that the prosecutor or plaintiff gives the first blow; but the resistance ought to be in proportion to the injury offered. Where a man disarms the aggressor, or puts it out of his power to do further injury, he ought to desist from further violence; and if he commits any further outrage he becomes the aggressor." See also People v. Murray, 54 Hun, 406.

In Scribner v. Beach, 4 Den. 450, it was said that self-defense is a primary law of nature, and it is held to excuse breach of the peace and even homicide itself. But the court says: 66 Care must be taken that the resistance does not exceed the bounds of mere defense, prevention, or recovery, so as to become vindictive, for then the defendant would himself become the aggressor. The force used must not exceed the necessities of the case."

The rule allowing force to be used in self-defense goes to the extent of holding a person committing an assault under such circumstances responsible only for the force used by him in excess of that required for his protection. And the party acting in his selfdefense has a right to prove his belief as to his danger at the time he was assaulted by plaintiff in mitigation of damages. Elliot v. Brown, 2 Wend. 497; Hogan v. Ryan, 5 St. Rep. 110.

In establishing the defense of self-defense it is sufficient for the defendant to show a reasonable ground for apprehending a design to take his life, or 'to do him some great bodily harm, and also a reasonable ground to believe the danger imminent that such a design would be accomplished, even if it might afterward turn out that such appearances were false, and that there was not, in fact, any design or any danger that it would be accomplished. One in imminent peril is not required to seek the protection of the law, though he may do so; yet the omission to do so does not in any way deprive him of the right to defend himself in the same manner and to the same extent and by the same means as if he had sought the protecting arm of the law. The question is not whether the defendant had sought the protection of the law, but whether he was in imminent peril and was justified in believing himself to be so. Evers v. People, 3 Hun, 716, affirmed in 63 N. Y. 625.

The question of self-defense is a matter for the jury on all the facts. See Bensky v. Banks, 30 St. Rep. 362, 8 N. Y. Supp. 935.

Art. 4. Defenses.

SUBDIVISION 2.

Defense of Another.

The defense of one's kin, like the defense of one's person, will, if not excessive, justify an assault and battery. Thus Blackstone, speaking of the redress of private injuries by the mere act of the party injured, says: Of the first sort, or that which arises from the sole act of the injured party is, (1) The defense of one's self, or the mutual and reciprocal defense of such as stand in the relation of husband and wife, parent and child, master and servant. In these cases if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens is chargeable upon him only who began the affray. For the law in this case respects the passions of the human mind. 3 Bl. Comm. 3. See Bac. Abr., Master and Servant, P.

1 Lord Hale (p. 484) says: "That the law had been for a master killing in the necessary defense of his servant, the husband in defense of his wife, the wife of the husband, the child of the parent, or the parent of the child, for the act of the assistant shall have the same construction in such cases as the act of the party assisted should have had if it had been done by himself; for they are in a mutual relation to one another."

The defense of a servant will be excused or justified by the same means used to justify or excuse the defense of one's self. Pond v. People, 4 Cooley (Mich.), 205.

* * *

Likewise a servant may justify a battery in the necessary defense of his master. 2 Kent Comm. 261. Chancellor Kent says: It is a question whether the master may not in like manner justify a battery in the defense of his servant. It is, however, hesitatingly admitted by Hawkins, and explicitly by other authorities, that he may; and the weight of argument is on that side. 2 Kent Comm. 261.

See also Hawk. P. C., b. 1, c. 60, §§ 23, 24; Reeves' Dom. Rel. 378.

By the Civil Code of Louisiana, art. 169, it is expressly declared that a master may justify an assault in defense of his servant, as well as the servant in defense of his master.

See also on this subject the opinion in Scribner v. Beach, 4 Den. 451.

Art. 4. Defenses.

A servant or agent who is ordered to do an illegal act, such as an assault, is not bound to obey the order, and so cannot excuse himself under such order. Brown v. Howard, 14 Johns. 122.

But when a person does not stand in any of these domestic relations he cannot interfere on behalf of the party injured, but merely as an indifferent person to preserve the peace. 2 Stra. 954. See title "Justification - Preservation of the Peace," post. By section 205 of the Penal Code, homicide is justified when committed in the lawful defense of the slayer, or of his or her husband, wife, child, parent, brother, sister, master or servant, or of any person in his presence or company, where there is a reasonable ground to apprehend a design of the persons slain to commit a felony or to do some great personal injury to the slayer, or to any such person, and there is imminent danger of such design being accomplished, etc.

SUBDIVISION 3.

Defense of Real Property.

66

In Scribner v. Beach, 4 Den. 450, it was stated as a general proposition that a man may justify an assault and battery in defense of his lands or goods, or the goods of another delivered to him to be kept. Hawk. P. C., b. 1, chap. 60, § 23; Seeman v. Cuppledick, Owen, 150. But in these cases unless the trespass is accompanied with violence the owner of the lands or goods will not be justified in assaulting a trespasser in the first instance, but must request him to depart or desist; if he continues he should gently lay his hands upon him for the purpose of removing him, and if he resists with force then force sufficient to expel him may be used in return by the owner. Weaver v. Bush, 8 T. R. 78, Buller's N. P. 19, 1 East P. C. 406. It is otherwise if the trespasser enter the close with force. In that case the owner may, without previous request to depart or desist, use violence in return in the first instance proportionate to the force of the trespasser for the purpose only of subduing his violence."

If one enters the house of another and makes an unlawful assault, such a person may use force to expel him from the house, and resistance to such attempt is not justified. O'Connell v. Samuel, 81 Hun, 361, 30 N. Y. Supp. 889, 62 St. Rep. 143.

In order to justify an assault in ejecting a trespasser who has entered peaceably, it should be shown that the trespasser was re