person from entering the room, and simply obstructing the entrance of that person, no assault was committed. (q)

The injury need not be effected directly by the hand of the party. Thus there may be an assault by encouraging a dog to bite; by riding over a person with a horse; or by wilfully and violently driving a cart, &c. against the carriage of another person, and thereby causing bodily injury to the persons travelling in it.(r) And it seems that it is not necessary that the assault should be immediate; as where a defendant threw a lighted squib into a market-place, which, being tossed from hand to hand by different persons, at last hit the plaintiff in the face, and put out his eye, it was adjudged that this was actionable as an assault and battery.(8) And the same has been holden where a person pushed a drunken man against another, and thereby hurt him ;(t) but if such person intended doing a right act, as to assist the drunken man, or to prevent him from going along the street without help, and in so doing a hurt ensued, he would not be answerable.(u)

Where a defendant put some cantharides into some coffee, in order that a female might take it, and she did take it, and was made ill by it, it was held to be an assault.(v) But this case has been overruled. (w)

There may be an assault also by exposing a person to the inclemency of the weather. Thus, in a case where an indictment against a mistress for not providing sufficient food and sustenance for a female servant, whereby the servant became sick and emaciated, was ruled to be bad, because it did not allege that the ser

*1022] vant was of tender years, and under the dominion and control *of her mis

tress; it was suggested that the indictment also charged that the defendant exposed the servant to the inclemency of the weather; and it was holden that such exposure was an act in the nature of an assault, for which the defendant might be liable, whatever was the age of the servant (x)

Where a mother left her child, ten days old, at the bottom of a dry ditch, by which there was a path, and a lane separated from the ditch by a hedge; Parke, B., is reported to have said that "there were no marks of violence on the child, and it does not appear in the result that the child actually experienced any inconvenience, as it was providentially found soon after it was exposed, and therefore, although it is said in some of the books that an exposure to the inclemency of the weather may amount to an assault, yet, if that be so at all, it can only be when the person suffers a hurt or injury of some kind or other from the exposure."(y) But where the defendants told the mother of a child of which she had been delivered that it was to be taken to a nursery or institution to be brought up, and they put the child in a bag and hung it upon some park-pales at the side of a footpath, and it was likely that the putting a child of so tender an age into a bag and hanging the bag on the pales would cause its death; Tindal, C. J., held that the defendants were guilty of an assault; for the mother gave consent on the pretext that the child was to be taken to some institution, and as that pretext was false, it was no consent at all.(z)

(q) Innes v. Wylie, 1 C. & K. 257 (47 E. C. L. R.), Lord Denman, C. J.

(r) See the precedents for assaults of this kind: Cro. Circ. Comp. 82; Chit. Crim. L. 823, 824, 825; 2 Starkie 388, 389 (3 E. C. L. R.).

(8) Scott v. Shepherd, 2 Blac. Rep. 892, by three Judges; Blackstone, J., contra, 3 Wils. 402, s. c.

(1) Short v. Lovejoy, cor. Lee, C. J., 1752; Bull. Ni. Pri. 16.

(u) Ib. Ibid.

(v) Reg. v. Button, 8 C. & P. 660 (34 E. C. L. R.). Arabin, Serjt., after consulting the Recorder. But qu. whether this be correct, as there was no force either directly or indirectly used by the defendant, and the act which caused the injury was the act of the party taking the coffee. C. S. G.

(w) Reg. v. Dilworth, 2 M. & Rob. 531; Reg. v. Walkden, 1 Cox C. C. 282; Reg. v. Hanson, 2 C. & K. 912 (61 E. C. L. R.).

(x) Rex v. Ridley, cor. Lawrence, J., Salop Lent Ass. 1811; 2 Campb. 650, 653. The counsel for the prosecution admitted that they could not prove this charge in the indictment to any extent; and the defendant was accordingly acquitted. That negligence and harsh usage may be a means of committing murder, see ante, p. 677.

(y) Reg. v. Renshaw, 2 Cox C. C. 285, Parke, B., ante, p. 91.

(2) Reg. v. March, 1 C. & K. 496 (47 E. C. L. R.). The very learned C. J cautiously avoided saying that it would not have been an assault if the mother had consented to all that had been done; and as it is clear that a mother may be guilty of a battery on a child

But if one has an idiot brother, who is bedridden in his house, and he keeps him in a dark room, without sufficient warmth or clothing, this is not an assault or imprisonment, as it is an omission without a duty, which will not create an indictable offence.(a) Where parish officers, by force and against her consent, cut off the hair of a young woman who was an inmate of a workhouse, it was held an assault.(b)

If a master take indecent liberties with a female scholar without her consent, he is liable to be punished for an assault, though she did not resist. A master took very indecent liberties with a female scholar of the age of thirteen, by putting her hand into his breeches, pulling up her petticoats, and putting his private [*1023 parts to hers: she did not resist, but it was against her will. The jury *found him guilty of an assault with intent to commit a rape, and also of a common assault; and the Judges thought the finding as to the latter clearly right. (c) And making a female patient strip naked, under pretence that the defendant, a medical practitioner, cannot otherwise judge of her illness, if he himself takes off her clothes, is an assault. A girl of sixteen was taken by her parents to the defendant, a German quack, on account of fits, by which she was afflicted; he said he would cure her, and bid her come again the next morning; she went accordingly the next morning by herself, and he told her she must strip naked; she said she would not. He said she must, or he could not do any good. She began to untie her dress, and he stripped off all her clothes; she did nothing; he pulled off everything; she told him she did not like to be stripped in that manner. When she was naked, he rubbed her with a liquid. The case was left to the jury to consider whether the defendant believed that stripping the girl would assist his judgment, or whether he did not strip her wantonly, without thinking it necessary; and they were told that the making her strip and pulling off her clothes might, under the latter circumstances, justify a verdict for an assault. The jury found the defendant guilty; and, upon a case reserved, it was held that the conviction was right.(d)

Where a prize or other fight takes place, and a number of persons are assembled to witness it, if they have gone thither for the purpose of seeing the combatants strike each other, and were present when they did so, they are all in point of law guilty of an assault; and there is no distinction between those who concur in the act and those who fight ;(e) and it is not at all material which party struck the first blow, for if several are in concert, encouraging one another and co-operating, they are all equally guilty, though one only committed the actual assault.(ƒ)

Where an act is done with the consent of a party it is not an assault; for in order to support a charge of assault such an assault must be proved as could not be justified if an action were brought for it, and leave and license pleaded; attempting, therefore, to have connection with a girl between the ages of ten and twelve, or under ten years of age, if done with the girl's consent, is not an assault.(g)

by actual striking, quære whether, when she does or consents to an unlawful handling or disposition of her child, she is not guilty of battery; for what is a battery but an unlawful touching of the person of another? Reg. v. Renshaw, therefore, seems open to doubt on this ground; and also on the further ground that it seems to make the question, whether the act of the prisoner was a battery or not, depend on the result of that act; whereas, it is conceived that that act was either a battery or not a battery at the moment it was committed. It is confidently submitted that the instant a mother deposits a child with intent to abandon it, as that is an unlawful act, which she can neither justify nor excuse, she is guilty of a battery.

(a) Rex v. Smith, 2 C. & P. 449 (12 E. C. L. R.), Burrough, J.

(b) Forde v. Skinner, 4 C. & P. 239, (19 E. C. L. R.), Bayley, J.

(c) Rex v. Nichol, MS., Bayley, J., and R. & R. 130; Reg. v. M'Garvaron, 3 C. & K. 320, Williams, J., s. p.

(d) Rex v. Rosinski, MS., Bayley, J., and R. & M. C. C. 19; s. c., 1 Lew. 11; and see Reg. v. Case, 1 Den. C. C. 580, ante, p. 912.

(e) Rex v. Perkins, 4 C. & P. 537 (19 E. C. L. R.), Patteson, J.; Reg. v. Hunt, 1 Cox C. C. 177; 8. P., ante, p. 380.

(f) Anonymous, 1 Lewin 17, per Bayley, J.; Reg. v. Lewis, 1 C. & K. 419 (47 E. C. L. R.), Coleridge, J., s. P.

(g) Reg. v. Meredith, 8 C. & P. 589 (34 E. E. L. R.), Lord Abinger, C. B.; Reg. v. Banks, Ibid. 574, Patteson, J.; Reg. v. Martin, 9 C. & P. 213 (38 E. C. L. R.); 2 Moo. C. C. R. 123;

1 Champer v. State, 14 Ohio (N. S.) 437; Smith v. State, 12 Ibid. 466. VOL. I.-52

But if resistance be prevented by fraud it is an assault. If a man, therefore, have connection with a married woman, under pretence of being her husband, he is guilty of an assault (h)

An unlawful imprisonment is also an assault; for it is a wrong done to the person *1024] of a man, for which, besides the private satisfaction *given to the individual by action, the law also demands public vengeance, as it is a breach of the King's peace, a loss which the state sustains by the confinement of one of its members, and an infringement of the good order of society. (i) To constitute the injury of false imprisonment, there must be an unlawful detention of the person.1 With respect to the detention, it may be laid down that every confinement of the person, whether it be in a common prison or in a private house, or by a forcible detaining in the public streets, will be sufficient. (k) And such detention will be unlawful unless there be some sufficient authority for it, arising either from some process from the courts of justice, or from some warrant of a legal officer, having power to commit under his hand and seal, and expressing the cause of such commitment; or arising from some other special cause sanctioned, for the necessity of the thing, either by common law or by Act of Parliament.(7) And the detention will be unlawful, though the warrant or process upon which it is made be regular, in case they are executed at an unlawful time, as on a Sunday; or in a place privileged from arrests, as in the verge of the King's Court. (m) Especial provision is made concerning the arrest of foreign ambassadors, or other foreign public ministers, and their domestics, or domestic servants, by the statute 7 Anne, c. 12, which makes any process against them, or their goods and chattels, altogether void; and provides, that the persons prosecuting, soliciting, or executing, such process, shall be deemed violators of the law of nations, and disturbers of the public repose; and shall suffer such penalties and corporal punishment, as the Lord Chancellor and the two Chief Justices, or any two of them, shall think fit. But no trader within the description of the bankrupt laws, who shall be in the service of any ambassador or public minister, is to be privileged or protected by this Act; nor is any one to be punished for arresting an ambassador's servant, unless the name of such servant be registered

Reg. v. Cockburn, 3 Cox C. C. 543; Reg. v. Mehegan, 7 Cox C. C. 145; Reg. v. Read, 1 Den. C. C. 377. See these cases, ante, p. 933, et seq.

(h) Reg. v. Williams, 8 C. & P. 286 (34 E. C. L. R.); Reg. v. Saunders, Ibid. 265. See these cases, ante, p. 909.

(i) 1 Hawk. P. C. c. 60, s. 7; 4 Blac. Com. 218. And see precedents of indictments for assaults and false imprisonment: Cro. Circ. Comp. 79; 2 Stark. 385, 386; 3 Chit. Crim L. 835, et seq. As to such false imprisonment as amounts to kidnapping, &c., see ante, p.

962, et seq.

(k) 2 Inst. 589; Com. Dig. tit. "Imprisonment" (G.); 3 Blac. Com. 127. In Bird v. Jones, 7 Q. B. 742 (53 E. C. L. R.), the majority of the Court held that where the plaintiff in attempting to go in a particular direction was prevented from going in any direction but one, not being that in which he endeavored to pass, it was not an imprisonment, and this, whether the plaintiff had or had not a right to pass in the first mentioned direction. “A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may be movable or fixed; but a boundary it must have; and that boundary the party imprisoned must be prevented from passing: he must be prevented from leaving that place, within the ambit of which the party imprisoning him would confine him, except by prison breach :" Per Coleridge, J., Ibid. "In general, if one man compels another to stay in any given place against his will, he imprisons that other just as much as if he locked him up in a room; and it is not necessary in order to constitute an imprisonment that a man's person should be touched. The compelling a man to go in a given direction against his will may amount to imprisonment." "Imprisonment is a total restraint of the person for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him:" Per Patteson, J., Ibid. See also Warner v. Riddiford, 4 C. B. (N. S.) 180 (93 E. C. L. R.).

(1) 3 Blac. Com. 127.

(m) Id. Ibid.; 29 Car. 2, c. 7. And see further as to unlawful imprisonments: Com. Dig. tit. "Imprisonment" (H.); Bac. Ab. tit. "Trespass" (D.) 3 ; 2 Selw. Ñ. P. tit. “ Imprison

ment."

1 No actual force is necessary to constitute a false imprisonment. If a man is restrained of his personal liberty by fear of a personal difficulty, that amounts to a false imprisonment: Smith v. State, 7 Humph. 43.

in the office of one of the principal secretaries of state, and by him transmitted to the sheriffs of London and Middlesex, or their undersheriffs or deputies.(n)

[*1025

It has been supposed that every imprisonment includes a battery :(0) but this doctrine was denied in a recent case, where it was said by the Court that it was absurd to contend that every imprisonment included a battery.(p)

Whether the act shall amount to an assault must, in every case, be collected from the intention. Thus, in an action for an assault, where it appeared that the defendant and another person were fighting, when the plaintiff came up and took hold of the defendant by the collar, in order to separate the combatants, upon which the defendant beat the plaintiff, it was objected to the counsel for the plaintiff, who offered to enter into this evidence, that it ought to have been specially stated in the replication to the plea of son assault demesne: but the objection was overruled, on the ground that the evidence was not offered by way of justification, but for the purpose of showing that there was not any assault, and that it was the quo animo which constituted an assault, which was matter to be left to the jury.(q) So to lay one's hand gently on another whom an officer has a warrant to arrest, and to tell the officer that this is the man he wants, is said to be no battery.(r) So if one lays his hand gently, and not in a hostile manner, on another, in order to attract his attention, it is not an assault.(s) And if the injury committed were accidental and undesigned, it will not amount to a battery. Thus, if one soldier hurts another by discharging a gun in exercise, it will not be a battery. (f) And it is no battery if, by a sudden fright, a horse runs away with his rider, and runs against a man.(u) So where upon an indictment for throwing down skins into a man's yard, being a public way, by which a person's eye was beaten out, it appeared by the evidence that the wind blew the skin out of the way, and that the injury was caused by this circumstance, the defendants were acquitted.(v) It seems also that if two, by consent, play at cudgels, and one happen to hurt the other, it would not amount to a battery, as their intent was lawful and commendable, in promoting courage and activity.(w)

*If one of two persons, who are fighting. strike at the other, and hit a third person unintentionally, this is a battery, and cannot be justified on the ground that it was accidental.(x)

[*1026

(n) See as to the occasion of passing this Act, 1 Blac. Com. 254, 255, 256; and as to the construction of it, the cases collected in 2 Evans's Cl. Stat., Part IV., Cl. iii., No. 21. (0) Bull. N. P. c. 4, p. 22; and the opinion was adopted by Lord Kenyon, in Oxley v. Flower and another, 2 Selw. N. P. tit. "Imprisonment," I.

(P) Emmett v. Lyne, 1 New Rep. 255.

(9) Griffin v. Parsons, Gloucester Lent. Ass. 1754; Selw. N. P. tit. "Assault and Battery," 26, note (1), 7 Edit.

(r) 1 Hawk. P. C. c. 62, s. 2; Bac. Ab. tit. "Assault and Battery" (B.).

(8) Coward v. Baddeley, 4 H. & N. 478.

(t) Weaver . Ward, Hob. 134; 2 Roll. Ab. 548; Bac. Abr. tit. " Assault and Battery" (B.). But if the Act were done without sufficient caution, the soldier would be liable to an action at the suit of the party injured; for no man will be excused from a trespass, unless it be shown to have been caused by inevitable necessity, and entirely without his fault: Dickenson v. Watson, Sir T. Jones 205; Underwood v. Hewson, 1 Str. 595; 2 Blac. R. 896; Selw. N. P. tit. "Assault and Battery," 27.

(u) Gibbons v. Pepper, 4 Mod. 405. But if the horse's running against the man were occasioned by a third person whipping him, such third person would be the trespasser: Bac. Ab. tit. "Assault and Battery" (B.). And, upon the principles which have been before mentioned, such an act in a third person, causing death to any one, may, under certain circumstances, amount to felony: Ante, p. 849.

(v) Rex v. Gill and another, 1 Str. 190.

(w) Bac. Ab. tit. "Assault and Battery" (B.), referring to Dalt. c. 22; Bro. Coron. 229. But in the notes to Bac. Ab. ubi supra, the case of Boulter v. Clarke, Abingdon Ass. cor. Parker, C. B., Bull. N. P. 16, is referred to, in which it was ruled that it was no defence to allege that the plaintiff and defendant fought together by consent, the fighting itself being unlawful; and the case of Matthew v. Ollerton, Comb. 218, is also referred to as an authority, that if one license another to beat him, such license is no defence, because it is against the peace. And see ante, p. 854, et seq., as to the criminality of some games or sports.

(x) James v. Campbell, 5 C. & P. 372 (24 E. C. L. R.), Bosanquet, J. As the blow, if

In some cases force used against the person of another may be justified, and will not amount to an assault and battery. Thus, if an officer having a warrant against one who will not suffer himself to be arrested, beat or wound him, in the attempt to take him; or if a parent, in a reasonable manner, chastise his child; or a master his servant, being actually in his service at the time; or a schoolmaster his scholar; or a gaoler his prisoner; or if one confine a friend who is mad, and bind and beat him, &c., in such a manner as is proper in such circumstances; or if a man force a sword from one who offers to kill another therewith; or if a man gently lay his hands upon another, and thereby stay him from inciting a dog against a third person; no assault or battery will be committed by such acts.(y) So if A. beat B. (without wounding him, or throwing at him a dangerous weapon), who is wrongfully endeavoring, with violence, to dispossess him of his lands, or of the goods, either of himself or of any other person, which have been delivered to him to be kept, and will not desist upon A.'s laying his hands gently upon him, and disturbing him; or if a man beat, wound, or maim one who is making an assault upon his own person, or that of his wife, parent, child, or master; or if a man fight with, or beat, one who attempts to kill any stranger; in these cases also it seems that the party may justify the assault and battery.(z) It has been holden that a master may not justify an assault in defence of his servant, because he might have an action for the loss of his service :(a) but a different opinion has been entertained on this point;(b) and in one case Lord Mansfield said, "I cannot say that a master interposing, when his servant is assaulted, is not justifiable under the circumstances of the case; as well as a servant interposing for his master; it rests on the relation between master and servant."(c) It is said that a servant may not justify beating another in defence of his master's son, though he were *commanded to do

*1027] so by the master, because he is not a servant to the son; and that, for the like reason, a tenant may not beat another in defence of his landlord. (d) A wife may justify an assault in defence of her husband (e) An upper servant cannot justify beating an under servant for disobedience of orders. (f)

There is no doubt that son assault demesne is a good defence to an indictment.(g) If, therefore, the plaintiff first lifted up his staff, and offered to strike the defendant, it is a sufficient assault to justify the defendant striking the plaintiff, and he

it had struck the party at whom it was aimed, would have been a battery, so it was though it struck another person; just in the same way as if a blow intended for A. hit and kill B., it will be murder or manslaughter, according as it would have been murder or manslaughter if the blow had hit A. and killed him. C. S. G. In Hall v. Fearnley, 3 Q. B. 919 (43 E. C. L. R.), it was held that inevitable accident arising from superior agency is a defence under the general issue; but that a defence which admits that the accident resulted from an act of the defendant must be pleaded. In an action for assault where the defendant had thrown a stick and hit the plaintiff, but it did not appear that he threw the stick with the intention of hitting the plaintiff, Rolfe, B., is reported to have held that this was not sufficient to constitute an assault, as it did not appear for what purpose the stick was thrown; and it was therefore fair to conclude that it was thrown for a proper purpose, and that the striking of the plaintiff was merely accidental: Alderson v. Waistell, 1 C. & K. 358 (47 E. C. L. R.). But this ruling may well be doubted, at all events as far as relates to a civil suit. See ante, p. 1025, note (t).

(y) 1 Hawk. P. C. c. 60, s. 23; Bac. Ab. tit. "Assault and Battery" (C).

(2) 1 Hawk. P. C. c. 60, s. 23, and the numerous authorities there cited; Bac. Ab. tit. "Assault and Battery" (C.).

(a) Leward v. Baseley, 1 Ld. Raym. 62; 1 Salk. 407; Bull. N. P. 18.

(b) 1 Hawk. P. C. c. 60, s. 24.

(d) 1 Hawk. P. C. c. 69, s. 24.

(f) Reg. v. Huntley, 3 C. & K. 142, Platt, B.

(c) Tickel v. Read, Lofft. 215.

(e) Leward v. Baseley, 1 Ld. Raym. 62. (g) 1 Hawk. P. C. c. 62, s. 3.

1 See as to correction of children: Johnston v. State, 2 Humph. 283; State v. Harris, 63 N. C. 1. A master has no right to correct his hired servant: Comm. v. Bird, 1 Ashm. 267. As to schoolmaster, see Comm. v. Randall, 4 Gray 36.

132.

2 Orton v. State, 4 Greene 140; Slaten v. State, 30 Miss. 619; Parker v. State, 31 Texas A husband has a right to use compulsion, if necessary, to enable him to regain the possession of his wife from one in whose society he finds her, and who he has good reason to believe either has committed or is about to commit adultery with her: State v. Crater, 6 Ired. 164.