heard that the plaintiff had told their neighbors to watch him; that previously he had been told that, at different times, the plaintiff had threatened to inflict personal violence upon him, and that plaintiff was in the habit of shooting people, and was a dangerous man; and when he put his hand in his pocket, the movement indicated to his (the defendant's) mind an intention to draw a revolver.

The court excluded other testimony offered by the defendant to show that the plaintiff was of a quarrelsome disposition and in the habit of using dangerous weapons. The jury were instructed that the defendant had shown no legal justification for the assault, and hence the defendant was liable to respond in damages therefor, and the case was submitted to the jury only for an assessment of damages. The damages were assessed at $175. A motion for a new trial was denied, and judgment was entered for the plaintiff pursuant to the verdict. The defendant appeals from the judgment.

C. S. Fuller for appellant.

Webster & Miller for respondent.

LYON, J. It was not unlawful for the defendant to address the plaintiff as he did when they met on the highway, and if the plaintiff by his former threats of personal violence (if he made any), and by putting his hand in his pocket as testified to by the defendant (if he did so), gave the defendant reason to believe that he was about to draw a revolver or other weapon upon him, it was an assault, and the defendant had the right to act upon appearances and at once repel or prevent the supposed contemplated attack. (See 1 Whart. Crim. Law, $$ 603, 606.) We think the testimony sufficient to send to the jury the question whether the acts of the plaintiff were sufficient to give the defendant reason to believe that he was in imminent danger of being attacked by the plaintiff when he knocked the latter down. That is to say, we think the testimony tends to prove a state of facts from which the jury might properly find the defendant was legally justified in striking the blows to prevent the plaintiff from attacking him.

Hence the instruction that the defendant was absolutely liable in the action was erroneous. The instruction should have been that if the defendant had no reasonable grounds to fear an immediate attack by the plaintiff, or, having such grounds, if he used more force than was necessary to prevent such attack, the plaintiff could recover; otherwise not.

We are also inclined to think that on the authority of State v. Nett, 50 Wis. 524, proof of the quarrelsome and violent disposition of the plaintiff should have been received, as elements in the correct solution of the questions above suggested. By the Court. The judgment of the Circuit Court is reversed, and the cause will be remanded for a new trial.

BISHOP v. RANNEY.

(59 Vt. 316. - 1887.)

GENERAL assumpsit. Plea in offset. Heard on referee's report. Judgment for plaintiff.

Plaintiff contracted to work for defendant until his sawing was done. Before the term of service had expired he left defendant's employment because of his treatment of him. This action was brought to recover a balance of wages due him (plaintiff). Defendant claimed damage because plaintiff did not perform his contract as to time. As to plaintiff's justification for so leaving, the referee found: "On the twentyfifth of April, defendant and plaintiff were at work together in the mill-yard. Defendant sent his boy up to Mr. Colby's to get him to come down. The boy came back, saying Mr. Colby would be at home by the time he got there. The boy went. Soon the plaintiff and defendant went to supper. While at the table defendant expressed surprise that his boy did not return. Plaintiff said Mr. Colby was at work for Mr. Dowd, and not at home. Defendant said, 'Why didn't you tell me that before I sent him back?' Plaintiff replied, 'I did not know where you sent him.' Defendant replied, 'You did know it.' Plaintiff reiterated that he did not. Defend

ant rose from the table in a threatening manner, and said violently to plaintiff that he must not tell him he lied in his own house. Defendant's mother told him to sit down. Plaintiff made no reply, but after finishing his supper he told the defendant that he might find another man, as he should work no longer. The defendant is a much larger and more powerful man than the plaintiff. The plaintiff made no reply to defendant when he rose from the table because he feared violence. Plaintiff worked no more."

J. P. Otis for plaintiff.

Cahoon & Hoffman for defendant.

VEAZEY, J. The case involves the question whether the report shows that the plaintiff was justified in leaving the defendant's employment before the expiration of the term of service contracted for. The plaintiff claims that the conduct of the defendant constituted an assault, and therefore justified his leaving, although there was no battery.

In 2 Greenl. Ev. sec. 82, an assault is defined to be an inchoate violence to the person of another, with the present/ means of carrying the intent into effect, and the author cites 1 Steph. N. P. 208; Finch's Law, 202. He further says: "Mere threats alone do not constitute the offence; there must be proof of violence actually offered;" citing Stephens v. Myers, 4 Car. & P. 349; Tuberville v. Savage, 1 Mod. 3. And he further says: "The intention to do harm is of the essence of an assault." (Jones v. Wylie, 1 Car. & K. 257.) In Add. Torts, the author says: "Every attempt, also, to offer with force and violence to do hurt to another constitutes an assault." And upon the authority of Read v. Coker, 13 C. B. 860, he further says: "And any gesture or threat of violence exhibiting an intention to assault, with the means of carrying that threat into effect, is an assault," unless immediate contact is impossible. (Cobbett v. Grey, 4 Exch. 729, 744.) In Clark v. Downing, 55 Vt. 259, 262, Royce, Ch. J. says: "If the party threatening the assault have the ability, means and apparent intention to carry his threat into execution, it may

in law constitute an assault." Bishop says: "An assault is an unlawful physical force, partly or fully put in motion, which creates a reasonable apprehension of immediate physical injury to a human being." (2 Bish. Crim. Law, sec. 32.)

We think, in the light of these definitions and decisions, the plaintiff is correct in his claim that there was an assault. Following the angry controversy of words was a threatening movement, in close proximity, accompanied by violent language in the nature of a threat, and by a much larger and more powerful man than the plaintiff; and the demonstration caused the plaintiff to fear violence.

*

*

*

*

*

We think the report warranted the judgment of the county court, and it is affirmed.1

EXCUSABLE ACTS.

HARVEY V. DUNLOP.

(Hill & Den. 193. — 1843.)

TRESPASS tried at the Washington circuit in June, 1839, before Willard, Ch. J. The plaintiff declares against the defendant for throwing a stone at his daughter, and putting out her eye, per quod, etc. Plea, the general issue, with notice of special matter. The case was this: The plaintiff's daughter (Clementine), who was about five, and the defendant, about six years of age, were associates and in the habit of playing together. In the fall of 1835 they went out to gather beechnuts, and, after being absent a few hours, returned to the plaintiff's house, both of them crying. On being asked what the matter

1 Intent to execute the threat is not essential to an assault. (Beach v. Hancock, 27 N. H. 223; 59 Am. Dec. 373.) Mercer v. Corbin, 117 Ind. (1889); 20 N. E. 132, driving a bicycle against another when walk was 14 feet wide and no obstruction. A few courts hold it necessary to a criminal assault. (Chapman v. State, 78 Ala. 463 ; 56 Am. R. 42.)

Deception may be equivalent to force. (Cove v. Stratton, 114 Mass. 303; 19 Am. R. 350; McCue v. Klein, 60 Tex. 168; 48 Am. R. 260.)

was, the defendant stated that he had thrown a stone and killed Clementine or put out her eye. Neither of them said whether the stone was thrown by accident or design, nor did it appear from any one having personal knowledge how this was on the trial, as the plaintiff's daughter was not sworn as a witness. The eye had become incurably blind. The plaintiff had repeatedly admitted that the defendant was not to blame, though it was not shown that he could have had any knowledge on the subject save such as he obtained from the children themselves, and that the injury was accidental.

M. Fairchild and J. Carey for the plaintiff.

C. L. Allen for the defendant.

By the court. NELSON, Ch. J. I am of opinion that the grounds upon which the learned judge placed the case before the jury were correct. No case or principle can be found, or if found can be maintained, subjecting an individual to liability for an act done without fault on his part; and this was substantially the doctrine of the charge. All the cases concede that an injury arising from inevitable accident, or which in law and reason is the same thing, from an act that ordinary human care and foresight are unable to guard against, is but the misfortune of the sufferer, and lays no foundation for legal responsibility. Thus it is laid down that, "If one man has received a corporal injury from the voluntary act of another, an action of trespass lies, provided there was a neglect or want of due caution in the person who did the injury, although there was no design to injure." (Bac. Abr. tit. Trespass, D.) But if not imputable to the neglect of the party by whom it was done, or to his want of caution, an action of trespass does not lie, although the consequences of a voluntary act. (Weaver v. Ward, Hob. 134; Gibbons v. Pepper, 4 Mod. 405.) Ch. J., in Wakeman v. Robinson, 1 Bingh. 213, "If the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie;" and the same principle is recognized in Bullock v. Babcock, 3 Wend.

391.

It was said by Dallas,