A Selection of Cases on the Law of Torts

Various Authors

A Selection of Cases on the Law of Torts

Published by Good Press, 2022

goodpress@okpublishing.info

EAN 4064066422790

Table of Contents

PREFACE

TABLE OF CASES

PART I INTERFERENCE WITH THE PERSON OR TANGIBLE PROPERTY

CHAPTER I INTENTIONAL INTERFERENCE

CHAPTER II NEGLIGENT INTERFERENCE

CULBERTSON v. CRESCENT CITY RAILROAD CO. Supreme Court, Louisiana, April 6, 1896. Reported in 48 Louisiana Annual Reports , Part 2, 1376.

CHAPTER III UNINTENDED NON-NEGLIGENT INTERFERENCE

PART II INTERFERENCE WITH GENERAL SUBSTANCE OR INTERESTS IN INTANGIBLE THINGS

CHAPTER IV DECEIT

CHAPTER V MALICIOUS PROSECUTION AND ABUSE OF PROCESS

CHAPTER VI DEFAMATION

CHAPTER VII INTERFERENCE WITH PRIVACY

CHAPTER VIII INTERFERENCE WITH ADVANTAGEOUS RELATIONS

INDEX

PREFACE

Table of Contents

The chief occasion for this edition is the change in the first-year curriculum in Harvard Law School, which assigned to other courses many things formerly appropriated to the course in the Law of Torts and hence treated in former editions. Thus causation is now treated in a course on the Principles of Legal Liability; certain excuses, such as consent and self-defence, are dealt with in that course, and trespass to land and conversion, which analytically might well be treated in the first chapter of this book, have been thought more appropriate to the course on the Law of Property. But the student should be warned that such matters of arrangement do not inhere in the law. They are mere matters of pedagogical expediency. He should bear in mind that the law is a unit and should be on his guard against thinking of it as made up of separate water-tight compartments. General principles which are of prime importance in connection with the subjects treated in this book are dealt with primarily in the courses on Property and on Criminal Law. Not the least important task for the student is to seek constantly for these relations between the subjects studied.

Again, the student should be warned that the arrangement proceeds upon pedagogical considerations and does not seek to set forth an analytical system. System is to be derived from study of the cases. The effort of the student to make one in connection with his summaries for review and his reading of the systematic discussions referred to in the notes will do more for him than learning in advance a system laid out by some one else. Similar reasons have led to omission of subheadings as far as consistent with convenience, leaving it to the student to systematize the main headings for himself. For other purposes an index is offered instead.

In arrangement of the cases advantage has been taken of the experience of the late Dean Thayer, who had given the matter anxious consideration for some years. Indeed the instinct of Dean Ames for teachable cases, the sagacity of Judge Smith in finding significant cases, and the judgment of Dean Thayer in matters of arrangement left little of moment for the present editor to do.

ROSCOE POUND

Cambridge, July 18, 1917

Note. The present volume is a reprint of the edition of 1916–17 which was not stereotyped and was soon exhausted. A few recent decisions have been added in the notes. Otherwise there is no change.

TABLE OF CASES

Table of Contents

CASES ON TORTS

PART I

INTERFERENCE WITH THE PERSON OR TANGIBLE PROPERTY

Table of Contents

CHAPTER I

INTENTIONAL INTERFERENCE

Table of Contents

Section I

Assault and Battery

I. De S. and Wife v. W. De S.

At the Assizes, coram Thorpe, C. J., 1348 or 1349.

Reported in Year Book, Liber Assisarum, folio 99, placitum 60.

I. De S. & M. uxor ejus querunt de W. De S. de eo quod idem W. anno, &c., vi et armis, &c., apud S., in ipsam M. insultum fecit, et ipsam verberavit, &c. And W. pleaded not guilty. And it was found by verdict of the inquest that the said W. came in the night to the house of the said I., and would have bought some wine, but the door of the tavern was closed; and he struck on the door with a hatchet, which he had in his hand, and the woman plaintiff put her head out at a window and ordered him to stop; and he perceived her and struck with the hatchet, but did not touch the woman. Whereupon the inquest said that it seemed to them that there was no trespass, since there was no harm done. Thorpe C. J. There is harm, and a trespass for which they shall recover damages, since he made an assault upon the woman, as it is found, although he did no other harm. Wherefore tax his damages, &c. And they taxed the damages at half a mark. Thorpe, C. J., awarded that they should recover their damages, &c., and that the other should be taken. Et sic nota, that for an assault one shall recover damages, &c.[1]

TUBERVILLE v. SAVAGE

In the King’s Bench, Trinity Term, 1669.

Reported in 1 Modern Reports, 3.

Action of assault, battery, and wounding.[2] The evidence to prove a provocation was, that the plaintiff put his hand upon his sword and said, If it were not assize-time, I would not take such language from you. The question was, if that were an assault? The court agreed that it was not; for the declaration of the plaintiff was that he would not assault him, the judges being in town; and the intention as well as the act makes an assault.[3] Therefore, if one strike another upon the hand or arm or breast, in discourse, it is no assault, there being no intention to assault; but if one, intending to assault, strike at another and miss him, this is an assault: so if he hold up his hand against another in a threatening manner and say nothing, it is an assault. In the principal case the plaintiff had judgment.

STEPHENS v. MYERS

At Nisi Prius, coram Tindal, C. J., July 17, 1830.

Reported in 4 Carrington & Payne, 349.

Assault. The declaration stated that the defendant threatened and attempted to assault the plaintiff. Plea: Not guilty.

It appeared that the plaintiff was acting as chairman at a parish meeting, and sat at the head of a table, at which table the defendant also sat, there being about six or seven persons between him and the plaintiff. The defendant having, in the course of some angry discussion which took place, been very vociferous, and interrupted the proceedings of the meeting, a motion was made that he should be turned out, which was carried by a very large majority. Upon this the defendant said he would rather pull the chairman out of the chair than be turned out of the room, and immediately advanced with his fist clenched toward the chairman, but was stopped by the churchwarden, who sat next but one to the chairman, at a time when he was not near enough for any blow he might have meditated to have reached the chairman, but the witnesses said that it seemed to them that he was advancing with an intention to strike the chairman.

Spankie, Serjt., for the defendant, upon this evidence, contended that no assault had been committed, as there was no power in the defendant, from the situation of the parties, to execute his threat,—there was not a present ability,—he had not the means of executing his intention at the time he was stopped.

Tindal, C. J., in his summing up, said: It is not every threat, when there is no actual personal violence, that constitutes an assault; there must, in all cases, be the means of carrying the threat into effect. The question I shall leave to you will be, whether the defendant was advancing at the time, in a threatening attitude, to strike the chairman, so that his blow would almost immediately have reached the chairman if he had not been stopped; then, though he was not near enough at the time to have struck him, yet, if he was advancing with that intent, I think it amounts to an assault in law. If he was so advancing that, within a second or two of time, he would have reached the plaintiff, it seems to me it is an assault in law. If you think he was not advancing to strike the plaintiff, then only can you find your verdict for the defendant; otherwise you must find it for the plaintiff, and give him such damages as you think the nature of the case requires.

Verdict for the plaintiff. Damages, 1s.

[4]

READ v. COKER

In the Common Pleas, June 1, 1853.

Reported in 13 Common Bench Reports, 850.

Assault and false imprisonment.[5] The first count charged an assault committed by the defendant on the plaintiff on the 24th of March, 1853, by thrusting him out of a certain workshop.

Plea: Not guilty by statute, upon which issue was joined.

The cause was tried before Talfourd, J., at the first sitting in London in Easter term last. The facts which appeared in evidence were as follows: The plaintiff was a paper-stainer, carrying on business in the City Road, upon premises which he rented of one Molineux, at a rent of 8s. per week. In January, 1852, the rent being sixteen weeks in arrear, the landlord employed one Holliwell to distrain for it. Holliwell accordingly seized certain presses, lathes, and other trade fixtures, and, at the plaintiff’s request, advanced him £16 upon the security of the goods, for the purpose of paying off the rent. The plaintiff, being unable to redeem his goods, on the 23d of February applied to the defendant for assistance. The goods were thereupon sold to the defendant by Holliwell, on the part of Read, for £25 11s. 6d.; and it was agreed between the plaintiff and the defendant that the business should be carried on for their mutual benefit, the defendant paying the rent of the premises and other outgoings, and allowing the plaintiff a certain sum weekly.

The defendant, becoming dissatisfied with the speculation, dismissed the plaintiff on the 22d of March. On the 24th, the plaintiff came to the premises, and, refusing to leave when ordered by the defendant, the latter collected together some of his workmen, who mustered round the plaintiff, tucking up their sleeves and aprons, and threatened to break his neck if he did not go out; and, fearing that the men would strike him if he did not do so, the plaintiff went out. This was the assault complained of in the first count. Upon this evidence the learned judge left it to the jury to say whether there was an intention on the part of the defendant to assault the plaintiff, and whether the plaintiff was apprehensive of personal violence if he did not retire. The jury found for the plaintiff on this count. Damages, one farthing.

Byles, Serjt., on a former day in this term, moved for a rule nisi for a new trial, on the ground of misdirection, and that the verdict was not warranted by the evidence. That which was proved as to the first count clearly did not amount to an assault. [Jervis, C. J. It was as much an assault as a sheriff’s officer being in a room with a man against whom he has a writ, and saying to him, You are my prisoner, is an arrest.] To constitute an assault, there must be something more than a threat of violence. An assault is thus defined in Buller’s Nisi Prius, p. 15: "An assault is an attempt or offer, by force or violence, to do a corporal hurt to another, as by pointing a pitchfork at him, when standing within reach; presenting a gun at him [within shooting distance]; drawing a sword, and waving it in a menacing manner, &c. The Queen v. Ingram, 1 Salk. 384. But no words can amount to an assault, though perhaps they may in some cases serve to explain a doubtful action: 1 Hawk. P. C. 133; as if a man were to lay his hand upon his sword, and say, ‘If it were not assize-time, he would not take such language,’—the words would prevent the action from being construed to be an assault, because they show he had no intent to do him any corporal hurt at that time: Tuberville v. Savage. So, in Selwyn’s Nisi Prius (11th ed.), 26, it is said: An assault is an attempt, with force or violence, to do a corporal injury to another, as by holding up a fist in a menacing manner; striking at another with a cane or stick, though the party striking may miss his aim; drawing a sword or bayonet; throwing a bottle or glass with intent to wound or strike; presenting a gun at a person who is within the distance to which the gun will carry; pointing a pitchfork at a person who is within reach (Genner v. Sparks); or by any other similar act, accompanied with such circumstances as denote at the time an intention, coupled with a present ability (see Stephens v. Myers), of using actual violence against the person of another. So, in 3 Bl. Comm. 120, an assault is said to be an attempt or offer to beat another, without touching him; as if one lifts up his cane or his fist in a threatening manner at another, or strikes at him but misses him: this is an assault, insultus, which Finch (L. 202) describes to be ‘an unlawful setting upon one’s person.’ [Jervis, C. J. If a man comes into a room, and lays his cane on the table, and says to another, If you don’t go out I will knock you on the head," would not that be an assault?] Clearly not: it is a mere threat, unaccompanied by any gesture or action towards carrying it into effect. The direction of the learned judge as to this point was erroneous. He should have told the jury that to constitute an assault there must be an attempt, coupled with a present ability, to do personal violence to the party; instead of leaving it to them, as he did, to say what the plaintiff thought, and not what they (the jury) thought was the defendant’s intention. There must be some act done denoting a present ability and an intention to assault.

A rule nisi having been granted,

Allen, Serjt., and Charnock now showed cause. The first question is, whether the evidence was sufficient, as to the first count, to justify the learned judge in putting it to the jury whether or not the defendant had been guilty of an assault. The evidence was, that the plaintiff was surrounded by the defendant and his men, who, with their sleeves and aprons tucked up, threatened to break his neck if he did not quit the workshop. [Maule, J. If there can be such a thing as an assault without an actual beating, this is an assault.]

Jervis, C. J. I am of opinion that this rule cannot be made absolute to its full extent; but that, so far as regards the first count of the declaration, it must be discharged. If anything short of actual striking will in law constitute an assault, the facts here clearly showed that the defendant was guilty of an assault. There was a threat of violence exhibiting an intention to assault, and a present ability to carry the threat into execution.

Maule, J., Cresswell, J., and Talfourd, J., concurring.

Rule discharged as to the first count.

[6]

UNITED STATES v. RICHARDSON

In the United States Circuit Court, District of Columbia, November Term, 1837.

Reported in 5 Cranch, Circuit Court Reports, 348.

Indictment for an assault upon one Susan Shelton.

The evidence was that the defendant came into the house where Mrs. Shelton was sitting at a window. He was armed with a musket and a club; and raising the club over her head, in an attitude for striking, and within striking distance, said to her that if she said a word (or if she opened her mouth) he would strike her; and this without any provocation on her part.

Mr. Bradley and Mr. Hoban, for the defendant, contended that this was not, in law, an assault; that there can be no assault without a present intent to strike; and his saying, if she opened her mouth, showed that he had not such a present intent; and they cited the old case, if it were not the assizes, I would stab you.

But the Court (Thurston, J., absent) said that he had no right to restrain her from speaking; and his language showed an intent to strike upon her violation of a condition which he had no right to impose. Suppose a stranger comes to my house armed, and raises his club over my head, within striking distance, and threatens to beat me unless I will go out of and abandon my house; surely that would be an assault. So, if a highwayman puts a pistol to my breast, and threatens to shoot me unless I give him my money; this would be evidence of an assault, and would be charged as such in the indictment.

Verdict, guilty; fined ten dollars.

[7]

OSBORN v. VEITCH

At Nisi Prius, coram Willes, J., Kent Summer Assizes, 1858.

Reported in 1 Foster & Finlason, 317.

Trespass and assault. Pleas: Not guilty, and son assault demesne. Issue.

The plaintiffs were owners of a field in which the defendants were walking with loaded guns at half-cock in their hands. The plaintiffs desired them to withdraw and give their names, and on their refusal advanced towards them, apparently as if to apprehend them. The defendants half raised their guns, which they pointed towards them, and threatened to shoot them. The plaintiffs (one of whom was a constable) then gave them in charge to a policeman for shooting with intent, and he, with their assistance, seized and handcuffed them.

E. James submitted that there was no assault; as the guns were only at half-cock, there was no present ability to execute the threat. Read v. Coker.

Sed per Willes, J. Pointing a loaded gun at a person is in law an assault. It is immaterial that it is at half-cock; cocking it is an instantaneous act, and there is a present ability of doing the act threatened, for it can be done in an instant.[8]

E. James. The assault was in self-defence; the defendants were only trespassers, and there was an attempt to apprehend them, and excess is not even assigned. Broughton v. Jackson, 18 Q. B. 378.

Willes, J. It was not necessary that it should be. To shoot a man is not a lawful way of repelling an assault. No doubt the charge of shooting with intent was idle, and the assault was only a misdemeanor. The handcuffing was utterly unlawful.

Verdict for the plaintiff. Damages, one farthing.

BEACH v. HANCOCK

Superior Court of Judicature, New Hampshire, December Term, 1853.

Reported in 27 New Hampshire Reports, 223.

Trespass, for an assault.

Upon the general issue it appeared that, the plaintiff and defendant being engaged in an angry altercation, the defendant stepped into his office, which was at hand, and brought out a gun, which he aimed at the plaintiff in an excited and threatening manner, the plaintiff being three or four rods distant. The evidence tended to show that the defendant snapped the gun twice at the plaintiff, and that the plaintiff did not know whether the gun was loaded or not, and that, in fact, the gun was not loaded.

The court ruled that the pointing of a gun, in an angry and threatening manner, at a person three or four rods distant, who was ignorant whether the gun was loaded or not, was an assault, though it should appear that the gun was not loaded, and that it made no difference whether the gun was snapped or not.

The court, among other things, instructed the jury that, in assessing the damages, it was their right and duty to consider the effect which the finding of light or trivial damages in actions for breaches of the peace would have to encourage a disregard of the laws and disturbances of the public peace.

The defendant excepted to these rulings and instructions.

The jury having found a verdict for the plaintiff, the defendant moved for a new trial by reason of said exceptions.

Morrison and Fitch, for the defendant. The first question arising in this case is, Is it an assault to point an unloaded gun at a person in a threatening manner? An assault is defined to be an inchoate violence to the person of another, with the present means of carrying the intent into effect. 2 Greenl. Ev. 72. The attempt or offer with violence to do corporal hurt to another must be coupled with a present ability to constitute an assault. Roscoe’s Crim. Ev. 287; 1 Russell on Crimes, 750. It is no assault to point an unloaded gun or pistol at another, &c. Blake v. Barnard, 9 Car. & P. 626; Regina v. Baker, 1 Car. & K. 254; Regina v. James, 1 Car. & K. 530. The court erred in instructing the jury that the pointing of a gun in an angry and threatening manner was an assault. It is well settled that the intention to do harm is the essence of an assault, and this intent is to be collected by the jury from the circumstances of the case. 2 Greenl. Ev. 73.[9]

Gilchrist, C. J. Several cases have been cited by the counsel of the defendant to show that the ruling of the court was incorrect. Among them is the case of Regina v. Baker, 1 Car. & K. 254. In that case, the prisoner was indicted under the statute of 7 Will. IV. and 1 Vict. c. 85, for attempting to discharge a loaded pistol. Rolfe, B., told the jury that they must consider whether the pistol was in such a state of loading that, under ordinary circumstances, it would have gone off, and that the statute under which the prisoner was indicted would then apply. He says, also, If presenting a pistol at a person, and pulling the trigger of it, be an assault at all, certainly, in the case where the pistol was loaded, it must be taken to be an attempt to discharge the pistol with intent to do some bodily injury.

From the manner in which this statement is made, the opinion of the court must be inferred to be, that presenting a loaded pistol is an assault. There is nothing in the case favorable to the defendant. The statute referred to relates to loaded arms.

The case of Regina v. James, 1 Car. & K. 530, was an indictment for attempting to discharge a loaded rifle. It was shown that the priming was so damp that it would not go off. Tindal, C. J., said: I am of opinion that this was not a loaded arm within the statute of 1 Vict. c. 85, and that the prisoner can neither be convicted of the felony nor of the assault. It is only an assault to point a loaded pistol at any one, and this rifle is proved not to be so loaded as to be able to be discharged. The reason why the prisoner could not be convicted of the assault is given in the case of Regina v. St. George, 9 Car. & P. 483, where it was held that on an indictment for a felony, which includes an assault, the prisoner ought not to be convicted of an assault, which is quite distinct from the felony charged, and on such an indictment the prisoner ought only to be convicted of an assault, which is involved in the felony itself. In this case, Parke, B., said: If a person presents a pistol which has the appearance of being loaded, and puts the party into fear and alarm, that is what it is the object of the law to prevent. So if a person present a pistol purporting to be a loaded pistol at another, and so near as to have been dangerous to life if the pistol had gone off; semble, that this is an assault, even though the pistol were, in fact, not loaded. Ibid.

In the case of Blake v. Barnard, 9 Car. & P. 626, which was trespass for an assault and false imprisonment, the declaration alleged that the pistol was loaded with gunpowder, ball, and shot, and it was held that it was incumbent on the plaintiff to make that out. Lord Abinger then says, If the pistol was not loaded, it would be no assault, and the prisoner would be entitled to an acquittal, which was undoubtedly correct, under that declaration, for the variance. Regina v. Oxford, 9 Car. & P. 525.

One of the most important objects to be attained by the enactment of laws and the institutions of civilized society is, each of us shall feel secure against unlawful assaults. Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect security. We have a right to live in society without being put in fear of personal harm. But it must be a reasonable fear of which we complain. And it surely is not unreasonable for a person to entertain a fear of personal injury, when a pistol is pointed at him in a threatening manner, when, for aught he knows, it may be loaded, and may occasion his immediate death. The business of the world could not be carried on with comfort, if such things could be done with impunity.

We think the defendant guilty of an assault, and we perceive no reason for taking any exception to the remarks of the court. Finding trivial damages for breaches of the peace—damages incommensurate with the injury sustained—would certainly lead the ill-disposed to consider an assault as a thing that might be committed with impunity. But at all events, it was proper for the jury to consider whether such a result would or would not be produced. Flanders v. Colby, 28 N. H. 34.

Judgment on the verdict.

[10]

STEARNS and Wife v. SAMPSON

Supreme Judicial Court, Maine, 1871.

Reported in 59 Maine Reports, 568.

On exceptions, and motion to set aside the verdict as being against law.

Trespass. The writ contained three counts: one for breaking and entering the plaintiffs’ close and carrying away the household furniture; the second, for taking and carrying away the household furniture of the wife; and the third,[11] for assault on the wife.

There was evidence tending to show that after entry and notice to leave, and refusal by the wife and her mother, with an expressed determination on their part to hold possession against the defendant, the latter called in assistants and ordered them to remove the furniture, and they did remove it from some of the rooms; that upon going to one of the rooms, the door was fastened, and the assistants opened it; that the furniture, except bed, was removed from Mrs. Stearns’ sleeping-room.

That the assistants remained there several days and nights.

That the defendant caused the windows to be removed; prevented food from being carried to the house; that a tenant was let into the L of the house, and had charge of the defendant’s bloodhound, five months old, and permitted him to go into the house; that the furniture was removed into a house near by, and Mrs. Stearns notified of its whereabouts; that the doors fastened by Mrs. Stearns were removed; that Mrs. Stearns finally left by compulsion with an officer, and was sick several weeks.

The rulings sufficiently appear in the opinion.

The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions, and also filed motions to set aside the verdict as being against law and the weight of evidence.

Appleton, C. J. There is in the declaration a count for an assault and battery upon the female plaintiff. In reference to this branch of the case, the following instructions were given: Was there a trespass committed upon the female plaintiff? She is the only one who seeks for damages. Whatever may have been the injury inflicted upon the other inmates of that house, she can recover on this suit only for that which was inflicted upon her. In order to constitute an assault, it is not necessary that the person should be touched, but there should be certain indignities. In the language of one of the decisions, if the plaintiff was embarrassed and distressed by the acts of the defendant, it would amount in law to an assault. The acts and indignities which from the charge might constitute an assault were the bursting open a door, which the defendants had no right to fasten, and the inconveniences resulting from taking off the doors and taking out the windows, which made it uncomfortable for the female plaintiff to remain, where remaining, she was a trespasser. So the bringing a bloodhound by the defendant into his house, which is proved to have barked, but not to have bitten, and the making a noise therein, with other similar acts, it was contended, would amount to an assault and trespass, and of that the jury were to judge. Now, such is not the law. An assault and battery is clearly defined by R. S., c. 118, § 28, thus: Whoever unlawfully attempts to strike, hit, touch, or do any violence to another, however small, in a wanton, wilful, angry, or insulting manner, having an intention and existing ability to do some violence to such person, shall be deemed guilty of an assault; and if such attempt is carried into effect, he shall be deemed guilty of an assault and battery. Now, the removal of a door or windows, of the owner in possession, would constitute no assault. Indeed, as has been seen, 6 Allen, 76, the owner would, in attempting it, have the right to use as much force as was necessary to overcome the resistance of the unlawfully resisting and trespassing tenant. Acts which may embarrass and distress do not necessarily amount to an assault. Indignities may not constitute an assault. Acts aggravating an assault differ materially from the assault thereby aggravated. Insulting language or conduct may aggravate an assault, but it, not an assault.[12] So the acts of the defendant in taking out the windows of his own house, in a bleak and cold day, might distress one unlawfully occupying and illegally refusing to quit his premises, but they could in no sense be regarded as an assault upon her. One may be embarrassed and distressed by acts done in a wanton, wilful, angry, or insulting manner, where there is no intention nor existing ability to do some violence to the person, and yet there be no assault. The instruction on this point is equally at variance with the common law and the statute of the State.[13]

COLE v. TURNER

At Nisi Prius, coram Holt, C. J., Easter Term, 1704.

Reported in 6 Modern Reports, 149.

Holt, C. J., upon evidence in trespass for assault and battery declared,—

First, That the least touching of another in anger[14] is a battery.

Secondly, If two or more meet in a narrow passage, and, without any violence or design of harm, the one touches the other gently, it will be no battery.[15]

Thirdly, If any of them use violence against the other, to force his way in a rude, inordinate manner, it will be a battery; or any struggle about the passage to that degree as may do hurt will be a battery.

INNES v. WYLIE

At Nisi Prius, coram Lord Denman, C. J., February 22, 1844.

Reported in 1 Carrington & Kirwan, 257.

Assault. Plea:[16] Not guilty.

It further appeared that the plaintiff, on the 30th of November, 1843, went to a dinner of the society at Radley’s Hotel, and was prevented by a policeman named Douglas from entering the room; and it was proved by the policeman that he acted by order of the defendants.

With respect to the alleged assault, the policeman said, The plaintiff tried to push by me into the room, and I prevented him; but some of the other witnesses stated that the plaintiff tried to enter the room, and was pushed back.

Erle addressed the jury for the defendant. There is no assault here. The policeman, who must best know what was done, says that the plaintiff tried to push into the room, and he prevented him; and preventing a person from pushing into a room is no assault, the assault, if any, being rather on the other side.

Lord Denman, C. J. (in summing up). You will say, whether, on the evidence, you think that the policeman committed an assault on the plaintiff, or was merely passive. If the policeman was entirely passive, like a door or a wall put to prevent the plaintiff from entering the room, and simply obstructing the entrance of the plaintiff, no assault has been committed on the plaintiff, and your verdict will be for the defendant. The question is, Did the policeman take any active measures to prevent the plaintiff from entering the room, or did he stand in the doorway passive, and not move at all?

Verdict for the plaintiff. Damages, 40s.

COWARD v. BADDELEY

In the Exchequer, April 19, 1859.

Reported in 4 Hurlstone & Norman, 478.

Declaration: That the defendant assaulted and beat the plaintiff, gave him in custody to a policeman, and caused him to be imprisoned in a police-station for twenty-four hours, and afterwards to be taken in custody along public streets before metropolitan police magistrates.

Pleas: First, Not guilty; third, That the plaintiff, within the Metropolitan Police District, assaulted the defendant, and therefore the defendant gave the plaintiff into custody to a police officer, who had view of the assault, in order that he might be taken before magistrates and dealt with according to law, &c.

Whereupon issue was joined.

At the trial before Bramwell, B., at the London sittings in last Hilary term, the plaintiff proved that, on the night of the 31st of October, he was passing through High Street, Islington, and stopped to look at a house which was on fire. The defendant was directing a stream of water from the hose of an engine on the fire. The plaintiff said, Don’t you see you are spreading the flames? Why don’t you pump on the next house? He went away, and then came back and repeated these words several times, but did not touch the defendant. The defendant charged the plaintiff with assaulting him, and gave him into the custody of a policeman who was standing near.

The defendant swore that, on being interrupted by the plaintiff, he told him to get out of the way and mind his own business; that the plaintiff came up to him again, seized him by the shoulder, violently turned him round, exposed him to danger, and turned the water off the fire.

The learned judge told the jury that the question was whether an assault and battery had been committed; and he asked them, first, whether the plaintiff laid hands on the defendant; and, secondly, whether he did so hostilely. The jury found that the plaintiff did lay hands on the defendant, intending to attract his attention. Whereupon the learned judge ordered the verdict to be entered for the plaintiff, reserving leave to the defendant to move to enter a verdict for him if the court should be of opinion that he had wrongly directed the jury in telling them that, to find the issue on the third plea for the defendant, they must find that the plaintiff laid his hands upon him with a hostile intention.

Shee, Serjt., in the same term, having obtained a rule nisi accordingly.

Beasley now showed cause. The question is, whether the intention of the plaintiff is material to be considered in order to determine whether there was an assault and battery. In Rawlings v. Till, 3 M. & W. 28, Parke, B., referring to Wiffin v. Kincard, 2 B. & P. N. R. 471, where it was held that a touch given by a constable’s staff does not constitute a battery, pointed out, as the ground of that decision, that there the touch was merely to engage the plaintiff’s attention. [Martin, B. Suppose two persons were walking near each other, and one turned round, and in so doing struck the other: surely that would not be a battery. Pollock, C. B. There may be a distinction for civil and criminal purposes. Channell, B. It was necessary to prove an indictable assault and battery in order to sustain the plea.] The maxim, Actus non facit reum nisi mens sit rea applies. He referred also to Pursell v. Horn, 8 A. & E. 602; Archbold’s Criminal Law, p. 524 (12th ed.); Scott v. Shepherd, 2 W. Bl. 892.

Petersdorff, Serjt., and Francis, in support of the rule. The learned judge’s direction was defective in introducing the word hostile. In order to constitute an assault, it is enough if the act be done against the will of the party. There are several cases where it has been held that an assault has been committed where there was no intention to do the act complained of in a hostile way, as in the case of a prizefight. Rex v. Perkins, 4 Car. & P. 537. So a surgeon assisting a female patient to remove a portion of her dress. Rex v. Rosinski 1 Moody C. C. 19. Here the plaintiff interfered with the defendant in the execution of his duty. In Hawkins’ Pleas of the Crown, vol. i. p. 263, it is said, Any injury whatever, be it never so small, being actually done to the person of a man in an angry, or revengeful, or rude, or insolent manner, as by spitting in his face, or any way touching him in anger, or violently jostling him out of the way, are batteries in the eye of the law. [Bramwell, B. I think that the jostling spoken of must mean a voluntary jostling.]

Pollock, C. B. I am of opinion that the rule must be discharged. The jury found that what the plaintiff did was done with the intent to attract the attention of the defendant, not with violence to justify giving the plaintiff into custody for an assault. The defendant treated it as a criminal act, and gave the plaintiff into custody. We are called on to set aside a verdict for the plaintiff, on the ground that he touched the defendant.[17] There is no foundation for the application.

Martin, B. I am of the same opinion. The assault and battery which the defendant was bound to establish means such an assault as would justify the putting in force the criminal law for the purpose of bringing the plaintiff to justice. It is necessary to show some act which justified the interference of the police officer. Touching a person so as merely to call his attention, whether the subject of a civil action or not, is not the ground of criminal proceeding. It is clear that it is no battery within the definition given by Hawkins.

Channell, B. I am of the same opinion. Looking at the plea, it is obvious that it was not proved.

Bramwell, B., concurred.

Rule discharged.

DE MARENTILLE v. OLIVER

Supreme Court, New Jersey, February Term, 1808.

Reported in 1 Pennington, 379.

This was action of trespass, brought by the defendant in this court, against the plaintiff in certiorari. The state of demand charged the defendant below, that he unlawfully, forcibly, and with great violence, with a large stick, struck the horse of the plaintiff, on the public highway, which said horse was then before a carriage, in which the plaintiff was riding, on the said public highway, to the damage of the plaintiff fifty dollars. This cause was tried by a jury, and verdict and judgment for the plaintiff, $15 damages. It was assigned for error that the suit was brought before the justice to recover damages for an assault and battery, when, by law, such an action cannot be supported before a justice of the peace.

Pennington, J.[18] To attack and strike with a club, with violence, the horse before a carriage, in which a person is riding, strikes me as an assault on the person;[19] and if so, the justice had no jurisdiction of the action.

But if this is to be considered as a trespass on the property, unconnected with an assault on the person, I think that it was incumbent on the plaintiff below to state an injury done to the horse, whereby the plaintiff suffered damage; that he was in consequence of the blow bruised or wounded, and unable to perform service; or that the plaintiff had been put to expense in curing of him, or the like. All the precedents of declarations for injuries done to domestic animals, as far as my recollection goes, are in that way; and I think, with good reason. Suppose a man, seeing a stranger’s horse in the street, was to strike him with a whip, or a large stick, if you please, and no injury was to ensue, could the owner of the horse maintain an action for this act? I apprehend not. For these reasons, I incline to think, that this judgment ought to be reversed.

Kirkpatrick, C. J. Concurred in the reversal.

Judgment reversed.

OBERLIN v. UPSON

Supreme Court, Ohio, January Term, 1911.

Reported in 84 Ohio State Reports, 111.

Davis, J.[20] Under the common law of England as it has been recognized and administered in this country, a woman cannot maintain against her seducer an action for damages arising from her own seduction. This is frankly admitted by the counsel for the plaintiff in error; but they ask a reversal of the judgment below upon the ground that the plaintiff was induced to consent to the solicitations of the defendant by a betrayal of the love and confidence which had been engendered in her by a period of courtship and by a promise of marriage made by him. Confessedly this is not an action ex contractu upon a promise of marriage, in which the seduction might be pleaded and proved as an aggravation of damages;[21] but it is clearly an attempt to recover ex delicto. There is no averment of mutual promises or of an agreement to marry; and an analysis of the amended petition discloses no more than that the defendant’s promise was one of the blandishments by which he accomplished his purpose. The case, therefore, presents no exception to the common law rule; for there is no claim of fraud, violence or artifice other than mere solicitation.

The theory of the common law is that, since adultery and fornication are crimes,[22] the woman is particeps criminis and hence that she cannot be heard to complain of a wrong which she helped to produce. It may be conceded that some of the arguments adduced here might be fairly persuasive if addressed to the legislature. Indeed in several of the states statutes have been enacted authorizing such an action; but a careful study of the decisions in those states, limiting and construing those statutes, raises a doubt whether the legislation is a real advance upon the common law. 8 Ann. Cas. 1115, note. There is, however, no such statute in this state and the common law rule applies.

The judgment of the circuit court is Affirmed.[23]

Spear, C. J., Shauck, Price, and Johnson, JJ., concur.

Donahue, J., not participating.

BELL v. HANSLEY

Supreme Court, North Carolina, December Term, 1855.

Reported in 3 Jones, 131.

This was an action of trespass, assault, and battery, tried before Ellis, Judge, at the fall term, 1855, of New Hanover Superior Court.

The plaintiff proved the assault and battery; and there was evidence tending to show a mutual affray and fighting by consent.

But his Honor was of opinion, and so advised the jury, that notwithstanding the fact that the parties had mutually assented to an affray, the plaintiff was, nevertheless, entitled to recover; but that the fact relied on as a defence was proper to be considered by the jury in mitigation of damages. The defendant excepted to these instructions.

Verdict for the plaintiff. Judgment and appeal.

Nash, C. J. This case presents the question whether, when two men fight together, thereby committing an affray, either is guilty of an assault and battery upon the other. Justice Buller, in his Nisi Prius, at page 16, says, each does commit an assault and battery upon the other, and that each can maintain an action for it. He refers to a case at Abingdon, Boulter v. Clark, when Serjeant Hayward appeared for the defendant, and offered to prove that the parties fought by consent and insisted that this, under the maxim volenti non fit injuria, applied. Parker, Chief Baron, denied it, and said, the fighting being unlawful, the consent of the plaintiff to fight would be no bar to his action, and that he was entitled to a verdict. Mr. Stephens, in his Nisi Prius, 211, lays down the same doctrine: If two men engage in a boxing match, an action can be sustained by either of them against the other, if an assault be made; because the act of boxing is unlawful, and the consent of the parties to fight cannot excuse the injury.

Per Curiam. Judgment affirmed.

[24]

Section II

Imprisonment

Note by Thorpe, C. J., 1348.

Reported in Year Book, Liber Assisarum, folio 104, placitum 85.

There is said to be an imprisonment in any case where one is arrested by force and against his will, although it be on the high street or elsewhere, and not in a house, &c.[25]

GENNER v. SPARKES

In the King’s Bench, Trinity Term, 1704.

Reported in 1 Salkeld, 79.

Genner, a bailiff, having a warrant against Sparkes, went to him in his yard, and, being at some distance, told him he had a warrant, and said he arrested him. Sparkes, having a fork in his hand, keeps off the bailiff from touching him, and retreats into his house. And this was moved as a contempt. Et per Curiam. The bailiff cannot have an attachment, for here was no arrest nor rescous. Bare words will not make an arrest; but if the bailiff had touched him, that had been an arrest,[26] and the retreat a rescous, and the bailiff might have pursued and broke open the house, or might have had an attachment or a rescous against him; but as this case is, the bailiff has no remedy, but an action for the assault; for the holding up of the fork at him when he was within reach, is good evidence of that.[27]

WOOD v. LANE

At Nisi Prius, coram Tindal, C. J., December 13, 1834.

Reported in 6 Carrington & Payne, 774.

Trespass and false imprisonment. Pleas: Not guilty; and leave and license.

It was proved by a member of the plaintiff’s family that he was a flannel draper in Castle Street, Holborn, and that on the 3d of April he came home accompanied by the defendants, Cleaton and Lane; and that the plaintiff said Cleaton had arrested him at Mr. Sanders’s, in Holborn; that the plaintiff’s wife asked the defendant Lane, who was, in fact, clerk to Cleaton’s attorney, if he had any authority, and he said he had; and being asked his name, said, My name is Selby of Chancery Lane. Lane made several inquiries about the plaintiff’s property, and said he would give him time till eight o’clock in the evening; upon which the other defendant, Cleaton, said, How can you do that? I will not allow you to give him any time at all. It was proved that, in fact, Mr. Selby had no bailable process against the plaintiff. A witness was also called, who proved that, in conversation with the defendant Lane on the subject, he said it was a foolish piece of business; that Mr. Cleaton had caused him to do it; that he was very sorry for it, but he thought Mr. Cleaton would indemnify him. There was some uncertainty in the evidence of the conversation whether the defendant Lane admitted or not that he had taken the plaintiff by the arm.

According to the evidence of Mr. Sanders, at whose house the transaction commenced, the plaintiff was bargaining with him for the sale of some goods, and had just made out the invoice, which was lying before him, when the defendant Cleaton came in alone, and asked the plaintiff several times to pay the amount he owed him, or some money on account. The plaintiff said he would not; upon which Cleaton went just outside the door, and returned immediately, followed by the defendant Lane, and pointing to the plaintiff, said, This is the gentleman. The plaintiff tore up the