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Trespass may be supported against a sheriff for taking the goods of A., under an execution against B. a

Where the outgoing tenant covenanted with his landlord to leave the manure on the land, and to sell it to the incoming tenant at a valuation; it was held, that the outgoing tenant might maintain trespass against the incoming tenant, for taking the manure before such valuation, for the possession continued in the outgoing tenant b. "If I put in motion a dangerous thing, as if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue to any person, I am answerable in trespass." In general, trespass is not sustainable against a bailee who has the possession coupled with an interest, unless he destroy the chattel, nor against a joint tenant or a tenant in common for taking away or holding exclusively the property from his co-tenant; but if he destroys the chattel, trespass lies e.

Where a lessor during the term cut down some oak pollards growing upon the demised premises which were unfit for timber; it was held, that as the tenant for life or years would have been entitled to them if they had been blown down, and was entitled to the usufruct of them during the term, the lessor could not, by wrongfully severing them, acquire any right to them, and consequently that he or his vendee could not maintain trespass against the tenant for taking them.

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1.—What constitutes an assault.] AN assault is an intentional What conattempt by force and violence to do an injury to the person of

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stitutes an assault.

another, such as by presenting a gun at him, pointing a pitchfork at him, drawing a sword, or throwing anything at him while he is within reach. Riding after a person and obliging him to run into a garden to avoid being beaten, is an assault b. "But it is not every threat, where there is no actual violence, that constitutes an assault; there must be in all cases the means of carrying the threat into effect. If the defendant was advancing in a threatening manner to strike the plaintiff, so that the blow would have reached him within a second or two of time, if the defendant had not been stopped, though not near enough at the time to strike him, it seems to me an assault in law." c

Whether the act shall amount to an assault, must in every case be collected from the intention. Where the defendant and another person were fighting, and the plaintiff took hold of the defendant by the collar, in order to separate them, whereupon he struck the plaintiff; in a replication of de injuria, to a plea of son assault demesne, counsel for the plaintiff proposed to give these facts in evidence, when it was objected that he ought to have replied the matter specially; but Legge, B., overruled the objection that the evidence was not offered in justification, but for the purpose of shewing that there was no assault, for it was the quo animo which constituted the assault, which was matter to be left to the jury d.

2. What constitutes a battery.] Battery, which always includes an assault, is the actual doing an injury, be it ever so slight, upon the person of another, by striking him with a hand, or some instrument, as if a man thrust or push another in anger, or hold him by his arm, or spit in his face, or strike a horse upon which the party rode, whereby he is thrown; or if

a Finch, b. 3. c. 9. Ginner v. Sparkes, Salk. 79. B. N. P. 15. Sel. N. P. 26.

* Martin t. Shoppee, 3 C. & P. 373.

Per Tindal, C. J., Stephens v. Myers, 4 C. & P. 349. Striking at another at such a distance that the

blow could not reach him, is not an assault. Com. Dig. Battery, C.

d Griffin v. Parsons, Sel. N. P. 27. n. Where the parish officers cut off the hair of a pauper, against her will, it was held an assault. Forde v. Skinner, 4 C. & P. 239.

in a struggle for the way, or other contest, he touch him, it constitutes a battery, for which an action of trespass, vi et armis, will lie a. If a man whips a horse upon which another is riding, and makes it run away, he is guilty of battery upon any person against whom the horse may run. So if A. take the hand of B., and strikes C. therewith against B.'s will, A. is guilty of the battery, B. not. So, striking a horse upon which a party is riding, whereby he is thrown, is a battery c. In this action it is immaterial whether the act of the defendant was wilful or not (except that the intention may influence the amount of damages) d. If the injury be occasioned by the negligence, mistake, want of caution, or imprudence of the defendant, he is liable, for no man shall be excused of a trespass except it has been committed utterly without his fault . Where the defendant in uncocking a gun discharged it, and thereby wounded the plaintiff, who stood by looking on, it was held a battery'.

But if the injury be occasioned without any blame being imputable to the party producing it, if he could not have averted the accident by the exercise of any degree of prudence or circumspection, he will not be amenable for the consequences & As if a soldier, in a muster, discharge his gun, and another go across, whereby he inevitably and against his will hurts him, it is not a battery in law h. So where a man was riding along the highway, and his horse on a sudden fright ran away with him, upon which he called to J. S. to get out of the way, which J. S. neglected to do, in consequence of which the horse ran over him; held, that the rider was not guilty of battery i.

Trespass will lie for beating the plaintiff's servant, per quod

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servitium amisit a.

So for an assault and battery on the plaintiff's wife per quod consortium amisit ↳.

SECTION IV.

THE DECLARATION.

THIS is a transitory action, and the venue may be laid in any county. The day on which the assault was committed should be stated, but it is not necessary to prove that it was committed on the precise day laid in the declaration, for the day is immaterial. The plaintiff may prove trespass at any time before action brought, though it be before or after the day laid in the declaration c. Where several assaults have been committed on different days, it is usual so to declare in this form ", " that the defendant on such a day, and on divers other days and times between that day and some other day," committed the trespasses complained of; and when it is so stated, the plaintiff may give evidence of any number of assaults committed within those days; but he will not be allowed to give evidence of more than one assault committed before the first day stated, therefore it would be advisable to state a day so far back as to cover the first assault. But as an assault is one entire and individual act, it is improper to declare upon it as having been committed at different times; as where the declaration alleged, that the defendant on such a day, and on divers other days, &c., made an assault on the plaintiff; it was held bad on special demurrer. But where it was alleged that the plaintiff as

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saulted on such a day, and on divers other days, &c. ; it was held good. If the declaration contains only one count, the plaintiff, after proving one assault, cannot waive that and proceed to give evidence of another b. It ought to be alleged that the assault was committed vi et armis and contra pacem, &c.; but the omission of this allegation is matter of form, and can only be taken advantage of by special demurrer; it is cured by verdict c.

and wife.

In an action by husband and wife for an assault and battery Husband on the wife, the declaration should not contain any statement of an injury or damage to the husband only; and so in an action by the husband alone, for an assault on the wife, a statement respecting the personal sufferings of the wife should not be included. In the former case the declaration should conclude to the damage of both d.

SECTION V.

THE PLEADINGS.

THE general issue in this action is "not guilty," which merely puts in issue the fact of the assault.

demesne.

The defendant may justify an assault in defence of his own Son assault person; this defence or justification, which is technically termed son assault demesne, must be specially pleaded. If the defendant prove that the plaintiff first lifted up his staff and offered to strike him, it is a sufficient assault to justify his striking the plaintiff, and he need not stay until the plaintiff has actually struck him e.

Where declaration stated, that de

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