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• To the Honourable Oliver Wendell Holmes, Junr., a Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.
• Advertisement to the Fourth Edition.
• Addenda.
• Year Books Cited.
• The Law of Torts.
• Book I.—: General Part.
• Chapter I.: The Nature of Tort In General.
• Chapter II.: Principles of Liability.
• Chapter III.: Persons Affected By Torts.
• Chapter IV.: General Exceptions.
• Chapter V.: Of Remedies For Torts.
• Book II.: Specific Wrongs.
• Chapter VI.: Personal Wrongs.
• Chapter VII.: Defamation.
• Chapter VIII.: Wrongs of Fraud and Malice.
• Chapter IX.: Wrongs to Possession and Property.
• Chapter X.: Nuisance.
• Chapter XI.: Negligence ( a ) .
• Chapter XII.: Duties of Insuring Safety.
• Chapter XIII.: Special Relations of Contract and Tort.
• Appendix
• Appendix A. Historical Note On the Classification of the Forms of Personal Action.
• Appendix B. Employers’ Liability Act, 1880.
• Appendix C. Statutes of Limitation.
• Appendix D. Contributory Negligence In Roman Law.
• Draft of a Civil Wrongs Bill, Prepared For the Government of India.

CHAPTER VI.

PERSONAL WRONGS.

I.—

Assault and Battery.

Preliminary.Security for the person is among the first conditions of civilized life. The law therefore protects us, not only against actual hurt and violence, but against every kind of bodily interference and restraint not justified or excused by allowed cause, and against the present apprehension of any of these things. The application of unlawful force to another constitutes the wrong called battery: an action which puts another in instant fear of unlawful force, though no force be actually applied, is the wrong called assault. These wrongs are likewise indictable offences, and under modern statutes can be dealt with by magistrates in the way of summary jurisdiction, which is the kind of redress most in use. Most of the learning of assault and battery, considered as civil injuries, turns on the determination of the occasions and purposes by which the use of force is justified. The elementary notions are so well settled as to require little illustration.

What shall be said a battery. “The least touching of another in anger is a battery”(a) ; “for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it in any the slightest manner”(b) . It is immaterial not only whether the force applied be sufficient in degree to cause actual hurt, but whether it be of such a kind as is likely to cause it. Some interferences with the person which cause no bodily harm are beyond comparison more insulting and annoying than others which do cause it. Spitting in a man’s face is more offensive than a blow, and is as much a battery in law(c) . Again, it does not matter whether the force used is applied directly or indirectly, to the human body itself or to anything in contact with it; nor whether with the hand or anything held in it, or with a missile(d) .

What an assault. Battery includes assault, and though assault strictly means an inchoate battery, the word is in modern usage constantly made to include battery. No reason appears for maintaining the distinction of terms in our modern practice: and in the draft Criminal Code of 1879 “assault” is deliberately used in the larger popular sense. “An assault” (so runs the proposed definition) “is the act of intentionally applying force to the person of another directly or indirectly, or attempting or threatening by any act or gesture to apply such force to the person of another, if the person making the threat causes the other to believe(e) upon reasonable grounds that he has present ability to effect his purpose”(f) .

Examples of acts which amount to assaulting a man are the following: “Striking at him with or without a weapon, or presenting a gun at him at a distance to which the gun will carry, or pointing a pitchfork at him, standing within the reach of it, or holding up one’s fist at him, or drawing a sword and waving it in a menacing manner”(g) . The essence of the wrong is putting a man in present fear of violence, so that any act fitted to have that effect on a reasonable man may be an assault, though there is no real present ability to do the harm threatened. Thus it may be an assault to present an unloaded fire-arm(h) , or even, it is apprehended, anything that looks like a fire-arm. So if a man is advancing upon another with apparent intent to strike him, and is stopped by a third person before he is actually within striking distance, he has committed an assault(i) . Acts capable in themselves of being an assault may on the other hand be explained or qualified by words or circumstances contradicting what might otherwise be inferred from them. A man put his hand on his sword and said, “If it were not assize-time, I would not take such language from you;” this was no assault, because the words excluded an intention of actually striking(k) .

Excusable acts. Hostile or unlawful intention is necessary to constitute an indictable assault; and such touching, pushing, or the like as belongs to the ordinary conduct of life, and is free from the use of unnecessary force, is neither an offence nor wrong. “If two or more meet in a narrow passage, and without any violence or design of harm the one touches the other gentle, it will be no battery”(l) . The same rule holds of a crowd of people going into a theatre or the like(m) . Such accidents are treated as inevitable, and create no right of action even for nominal damages. In other cases an intentional touching is justified by the common usage of civil intercourse, as when a man gently lays his hand on another to attract attention. But the use of needless force for this purpose, though it does not seem to entail criminal liability where no actual hurt is done, probably makes the act civilly wrongful(n) .

Mere passive obstruction is not an assault, as where a man by standing in a doorway prevents another from coming in(o) .

Words cannot of themselves amount to an assault under any circumstances, though there is evidence of an earlier contrary opinion:

• “For Meade’s case proves, or my Report’s in fault,
• That singing can’t be reckoned an assault”(p) .

There is little direct authority on the point, but no doubt is possible as to the modern law.

Consent, or in the common phrase “leave and licence,” will justify many acts which would otherwise be assaults(q) , striking in sport for example; or even, if coupled with reasonable cause, wounding and other acts of a dangerous kind, as in the practice of surgery. But consent will not make acts lawful which are a breach of the peace, or otherwise criminal in themselves, or unwarrantably dangerous. To the authorities already cited(r) under the head of General Exceptions we may add Hawkins’ paragraph on the matter.

“It seems to be the better opinion that a man is in no danger of such a forfeiture [of recognizances for keeping the peace] from any hurt done to another by playing at cudgels, or such like sport, by consent, because the intent of the parties seems no way unlawful, but rather commendable, and tending mutually to promote activity and courage. Yet it is said that he who wounds another in fighting with naked swords does in strictness forfeit such a recognizance, because no consent can make so dangerous a diversion lawful”(s) .

It has been repeatedly held in criminal cases of assault that an unintelligent assent, or a consent obtained by fraud, is of no effect(t) . The same principles would no doubt be applied by courts of civil jurisdiction if necessary.

Self-defence. When one is wrongfully assaulted it is lawful to repel force by force (as also to use force in the defence of those whom one is bound to protect, or for keeping the peace), provided that no unnecessary violence be used. How much force, and of what kind, it is reasonable and proper to use in the circumstances must always be a question of fact, and as it is incapable of being concluded beforehand by authority, so we do not find any decisions which attempt a definition. We must be content to say that the resistance must “not exceed the bounds of mere defence and prevention”(u) , or that the force used in defence must be not more than “commensurate” with that which provoked it(v) . It is obvious, however, that the matter is of much graver importance in criminal than in civil law(w) .

Menace distinguished from assault. Menace without assault is in some cases actionable. But this is on the ground of its causing a certain special kind of damage; and then the person menaced need not be the person who suffers damage. In fact the old authorities are all, or nearly all, on intimidation of a man’s servants or tenants whereby he loses their service or dues. Therefore, though under the old forms of action this wrong was of the same genus with assault and battery, we shall find it more convenient to consider it under another head. Verbal threats of personal violence are not, as such, a ground of civil action at all. If a man is thereby put in reasonable bodily fear he has his remedy, but not a civil one, namely by security of the peace.

Summary proceedings when a bar to civil action. Where an assault is complained of before justices under 24 & 25 Vict. c. 100, and the complaint has been dismissed (after an actual hearing on the merits)(x) , either for want of proof, or on the ground that the assault or battery was “justified or so trifling as not to merit any punishment,” or the defendant has been convicted and paid the fine or suffered the sentence, as the case may be, no further proceedings either civil or criminal can be taken in respect of the same assault(y) .

II.—

False Imprisonment.

False imprisonment. Freedom of the person includes immunity not only from the actual application of force, but from every kind of detention and restraint not authorized by law. The infliction of such restraint is the wrong of false imprisonment; which, though generally coupled with assault, is nevertheless a distinct wrong. Laying on of hands or other actual constraint of the body is not a necessary element; and, if “stone walls do not a prison make” for the hero or the poet, the law none the less takes notice that there may be an effectual imprisonment without walls of any kind. “Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets”(z) . And when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is(a) . The detainer, however, must be such as to limit the party’s freedom of motion in all directions. (It is not an imprisonment to obstruct a man’s passage in one direction only. “A prison may have its boundary large or narrow, invisible or tangible, actual or real, or indeed in conception only; it may in itself be moveable or fixed; but a boundary it must have, and from that boundary the party imprisoned must be prevented from escaping; he must be prevented from leaving that place within the limit of which the party imprisoned could be confined.” Otherwise every obstruction of the exercise of a right of way may be treated as an imprisonment(b) . A man is not imprisoned who has an escape open to him(c) ; that is, we apprehend, a means of escape which a man of ordinary ability can use without peril of life or limb. The verge of a cliff, or the foot of an apparently impracticable wall of rock, would in law be a sufficient boundary, though peradventure not sufficient in fact to restrain an expert diver or mountaineer. So much as to what amounts to an imprisonment.

Justification of arrest and imprisonment. When an action for false imprisonment is brought and defended, the real question in dispute is mostly, though not always, whether the imprisonment was justified. One could not account for all possible justifications except by a full enumeration of all the causes for which one man may lawfully put constraint on the person of another: an undertaking not within our purpose in this work. We have considered, under the head of General Exceptions(d) , the principles on which persons acting in the exercise of special duties and authorities are entitled to absolute or qualified immunity. With regard to the lawfulness of arrest and imprisonment in particular, there are divers and somewhat minute distinctions between the powers of a peace-officer and those of a private citizen(e) : of which the chief is that an officer may without a warrant arrest on reasonable suspicion of felony, even though a felony has not in fact been committed, whereas a private person so arresting, or causing to be arrested, an alleged offender, must show not only that he had reasonable grounds of suspicion but that a felony had actually been committed(f) . The modern policeman is a statutory constable having all the powers which a constable has by the common law(g) , and special statutory powers for dealing with various particular offences(h) .

Who is answerable. Every one is answerable for specifically directing the arrest or imprisonment of another, as for any other act that he specifically commands or ratifies; and a superior officer who finds a person taken into custody by a constable under his orders, and then continues the custody, is liable to an action if the original arrest was unlawful(i) . Nor does it matter whether he acts in his own interest or another’s(j) . But one is not answerable for acts done upon his information or suggestion by an officer of the law, if they are done not as merely ministerial acts, but in the exercise of the officer’s proper authority or discretion. Rather troublesome doubts may arise in particular cases as to the quality of the act complained of, whether in this sense discretionary, or ministerial only. The distinction between a servant and an “independent contractor”(k) with regard to the employer’s responsibility is in some measure analogous. A party who sets the law in motion without making its act his own is not necessarily free from liability. He may be liable for malicious prosecution (of which hereafter)(l) ; but he cannot be sued for false imprisonment, or in a court which has not jurisdiction over cases of malicious prosecution. “The distinction between false imprisonment and malicious prosecution is well illustrated by the case where, parties being before a magistrate, one makes a charge against another, whereupon the magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and the judgment of a judicial officer are interposed between the charge and the imprisonment”(m) . Where an officer has taken a supposed offender into custody of his own motion, a person who at his request signs the charge-sheet does not thereby make the act his own(n) , any more than one who certifies work done under a contract thereby makes the contractor his servant. But where an officer consents to take a person into custody only upon a charge being distinctly made by the complainant, and the charge-sheet signed by him, there the person signing the charge-sheet must answer for the imprisonment as well as the officer(o) .

Again, where a man is given into custody on a mistaken charge, and then brought before a magistrate who remands him, damages can be given against the prosecutor in an action for false imprisonment only for the trespass in arresting, not for the remand, which is the act of the magistrate(p) .

Reasonable and probable cause. What is reasonable cause of suspicion to justify arrest may be said, paradoxical as the statement looks, to be neither a question of law nor of fact, at any rate in the common sense of the terms. Not of fact, because it is for the judge and not for the jury(q) ; not of law, because “no definite rule can be laid down for the exercise of the judge’s judgment”(r) . It is a matter of judicial discretion such as is familiar enough in the classes of cases which are disposed of by a judge sitting alone; but this sort of discretion does not find a natural place in a system which assigns the decision of facts to the jury and the determination of the law to the judge. The anomalous character of the rule has been more than once pointed out and regretted by the highest judicial authority(s) . The truth seems to be that the question was formerly held to be one of law, and has for some time been tending to become one of fact, but the change has never been formally recognized. The only thing which can be certainly affirmed in general terms about the meaning of “reasonable cause” in this connexion is that on the one hand a belief honestly entertained is not of itself enough(t) ; on the other hand, a man is not bound to wait until he is in possession of such evidence as would be admissible and sufficient for prosecuting the offence to conviction, or even of the best evidence which he might obtain by further inquiry. “It does not follow that because it would be very reasonable to make further inquiry, it is not reasonable to act without doing so”(u) . It is obvious, also, that the existence or non-existence of reasonable cause must be judged, not by the event, but by the party’s means of knowledge at the time.

Although the judge ought not to leave the whole question of reasonable cause to the jury, there seems to be no objection to his asking the jury, as separate questions, whether the defendant acted on an honest belief, and whether he used reasonable care to inform himself of the facts(x) .

III.—

Injuries in Family Relations.

Protection of personal relations. Next to the sanctity of the person comes that of the personal relations constituting the family. Depriving a husband of the society of his wife, a parent of the companionship and confidence of his children, is not less a personal injury, though a less tangible one, than beating or imprisonment. The same may to some extent be said of the relation of master and servant, which in modern law is created by contract, but is still regarded for some purposes as belonging to the permanent organism of the family, and having the nature of status. It seems natural enough that an action should lie at the suit of the head of a household for enticing away a person who is under his lawful authority, be it wife, child, or servant; there may be difficulty in fixing the boundary where the sphere of domestic relations ends and that of pure contract begins, but that is a difficulty of degree. That the same rule should extend to any wrong done to a wife, child, or servant, and followed as a proximate consequence by loss of their society or service, is equally to be expected. Then, if seduction in its ordinary sense of physical and moral corruption is part of the wrong-doer’s conduct, it is quite in accordance with principles admitted in other parts of the law that this should be a recognized ground for awarding exemplary damages. It is equally plain that on general principle a daughter or servant can herself have no civil remedy against the seducer, though the parent or master may; no civil remedy, we say, for other remedies have existed and exist. She cannot complain of that which took place by her own consent. Any different rule would be an anomaly. Positive legislation might introduce it on grounds of moral expediency; the courts, which have the power and the duty of applying known principles to new cases, but cannot abrogate or modify the principles themselves, are unable to take any such step.

Historical accidents of the common law herein. There seems, in short, no reason why this class of wrongs should not be treated by the common law in a fairly simple and rational manner, and with results generally not much unlike those we actually find, only free from the anomalies and injustice which flow from disguising real analogies under transparent but cumbrous fictions. But as matter of history (and pretty modern history) the development of the law has been strangely halting and one-sided. Starting from the particular case of a hired servant, the authorities have dealt with other relations, not by openly treating them as analogous in principle, but by importing into them the fiction of actual service; with the result that in the class of cases most prominent in modern practice, namely, actions brought by a parent (or person in loco parentis) for the seduction of a daughter, the test of the plaintiff’s right has come to be, not whether he has been injured as the head of a family, but whether he can make out a constructive “loss of service”(y) .

Trespass for taking away wife, &c. and per quod servitium amisit. The common law provided a remedy by writ of trespass for the actual taking away of a wife, servant, or heir, and perhaps younger child also(z) . An action of trespass also lay for wrongs done to the plaintiff’s wife or servant (not to a child as such), whereby he lost the society of the former or the services of the latter. The language of pleading was per quod consortium, or servitium amisit. Such a cause of action was quite distinct from that which the husband might acquire in right of the wife, or the servant in his own right. The trespass is one, but the remedies are “diversis respectibus”(a) . “If my servant is beat, the master shall not have an action for this battery, unless the battery is so great that by reason thereof he loses the service of his servant, but the servant himself for every small battery shall have an action; and the reason of this difference is that the master has not any damage by the personal beating of his servant, but by reason of a per quod, viz., per quod servitium, &c. amisit; so that the original act is not the cause of his action, but the consequent upon it, viz., the loss of his service, is the cause of his action; for be the battery greater or less, if the master doth not lose the service of his servant, he shall not have an action”(b) . The same rule applies to the beating or maltreatment of a man’s wife, provided it be “very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife”(c) .

“Criminal conversation.” Against an adulterer the husband had an action at common law, commonly known as an action of criminal conversation. In form it was generally trespass vi et armis, on the theory that “a wife is not, as regards her husband, a free agent or separate person”(d) , and therefore her consent was immaterial, and the husband might sue the adulterer as he might have sued any mere trespasser who beat, imprisoned, or carried away his wife against her will. Actions for criminal conversation were abolished in England on the Establishment of the Divorce Court in 1857, but damages can be claimed on the same principles in proceedings under the jurisdiction then instituted(e) .

In practice these actions were always or almost always instituted with a view to obtaining a divorce by private Act of Parliament; the rules of the House of Lords (in which alone such Bills were brought in) requiring the applicant to have obtained both the verdict of a jury in an action, and a sentence of separation a mensa et toro in the Ecclesiastical Court.

Enticing away servants. An action also lay for enticing away a servant (that is, procuring him or her to depart voluntarily from the master’s service), and also for knowingly harbouring a servant during breach of service; whether by the common law, or only after and by virtue of the Statute of Labourers(f) , is doubtful. Quite modern examples are not wanting(g) .

Much later the experiment was tried with success of a husband bringing a like action “against such as persuade and entice the wife to live separate from him without a sufficient cause”(h) .

Still later the action for enticing away a servant per quod servitium amisit, was turned to the purpose for which alone it may now be said to survive, that of punishing seducers; for the latitude allowed in estimating damages makes the proceeding in substance almost a penal one.

Actions for seduction in modern practice: proof or presumption of service. In this kind of action it is not necessary to prove the existence of a binding contract of service between the plaintiff and the person seduced or enticed away. The presence or absence of seduction in the common sense (whether the defendant “debauched the plaintiff’s daughter,” in the forensic phrase) makes no difference in this respect; it is not a necessary part of the cause of action, but only a circumstance of aggravation(i) . Whether that element be present or absent, proof of a de facto relation of service is enough; and any fraud whereby the servant is induced to absent himself or herself affords a ground of action, “when once the relation of master and servant at the time of the acts complained of is established”(k) .

This applies even to an actual contract of hiring made by the defendant with a female servant whom he has seduced, if it is found as a fact that the hiring was a merely colourable one, undertaken with a view to the seduction which followed(l) . And a de facto service is not the less recognized because a third party may have a paramount claim: a married woman living apart from her husband in her father’s house may be her father’s servant, even though that relation might be determined at the will of the husband(m) . Some evidence of such a relation there must be, but very little will serve. A grown-up daughter keeping a separate establishment cannot be deemed her father’s servant(n) ; nor can a daughter, whether of full age or not, who at the time of the seduction is actually another person’s servant, so that no part of her services is at her parents’ disposal(o) . On the other hand, the fact of a child living with a parent, or any other person in loco parentis, as a member of the family of which that person is the head, is deemed enough to support the inference “that the relation of master and servant, determinable at the will of either party, exists between them”(p) . And a daughter under age, returning home from service with another person which has been determined, may be deemed to have re-entered the service of her father(q) . “The right to the service is sufficient”(r) .

Partial attendance in the parents’ house is enough to constitute service, as where a daughter employed elsewhere in the daytime is without consulting her employer free to assist, and does assist, in the household when she comes home in the evening(s) .

Damages. Some loss of service, or possibility of service, must be shown as consequent on the seduction, since that is, in theory, the ground of action(t) ; but when that condition is once satisfied, the damages that may be given are by no means limited to an amount commensurate with the actual loss of service proved or inferred. The awarding of exemplary damages is indeed rather encouraged than otherwise(u) . It is immaterial whether the plaintiff be a parent or kinsman, or a stranger in blood who has adopted the person seduced(x) .

Services of young child. On the same principle or fiction of law a parent can sue in his own name for any injury done to a child living under his care and control, provided the child is old enough to be capable of rendering service; otherwise not, for “the gist of the action depends upon the capacity of the child to perform acts of service”(y) .

Capricious operation of the law. The capricious working of the action for seduction in modern practice has often been the subject of censure. Thus, Serjeant Manning wrote more than forty years ago: “the quasi fiction of servitium amisit affords protection to the rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is sent unprotected to earn her bread amongst strangers”(z) . All devices for obtaining what is virtually a new remedy by straining old forms and ideas beyond their original intention are liable to this kind of inconvenience. It has been truly said(a) that the enforcement of a substantially just claim “ought not to depend upon a mere fiction over which the courts possess no control.” We have already pointed out the bolder course which might have been taken without doing violence to any legal principle. Now it is too late to go back upon the cases, and legislation would also be difficult and troublesome, not so much from the nature of the subject in itself as from the variety of irrelevant matters that would probably be imported into any discussion of it at large.

Constructive service in early cases. It would be merely curious, and hardly profitable in any just proportion to the labour, to inquire how far the fiction of constructive service is borne out by the old law of the action for beating or carrying away a servant. Early in the 15th century we find a dictum that if a man serves me, and stays with me at his own will, I shall have an action for beating him, on the ground of the loss of his service(b) : but this is reported with a quaere. A generation later(c) we find Newton C. J. saying that a relation of service between father and son cannot be presumed: “for he may serve where it pleaseth him, and I cannot constrain him to serve without his good will:” this must apply only to a son of full age, but as to that case Newton’s opinion is express that some positive evidence of service, beyond living with the parent as a member of the household, is required to support an action. Unless the case of a daughter can be distinguished, the modern authorities do not agree with this. But the same Year Book bears them out (as noted by Willes J.)(d) in holding that a binding contract of service need not be shown. Indeed, it was better merely to allege the service as a fact (in servitio suo existentem cepit), for an action under the Statute of Labourers would not lie where there was a special contract varying from the retainer contemplated by the statute, and amounting to matter of covenant(e) .

Intimidation of servants and tenants. A similar cause of action, but not quite the same, was recognized by the medieval common law where a man’s servants or tenants at will(f) were compelled by force or menace to depart from their service or tenure. “There is another writ of trespass,” writes Fitzherbert, “against those who lie near the plaintiff’s house, and will not suffer his servants to go into the house, nor the servants who are in the house to come out thereof”(g) . Examples of this kind are not uncommon down to the sixteenth century or even later; we find in the pleadings considerable variety of circumstance, which may be taken as expansion or specification of the alia enormia regularly mentioned in the conclusion of the writ(h) .

In the early years of the eighteenth century the genius of Holt found the way to use this, together with other special classes of authorities, as a foundation for the broader principle that “he that hinders another in his trade or livelihood is liable to an action for so hindering him”(i) , subject, of course, to the exception that no wrong is done by pursuing one’s own trade or livelihood in the accustomed manner though loss to another may be the result(k) and even the intended result(l) . Historically both this principle and that of Lumley v. Gye(m) are developments of the old “per quod servitium amisit”; but in the modern law they depend on different and much wider reasons, and raise questions which are not technical but fundamental. We shall therefore deal with them not here but under another head.

[(a) ]Holt C. J., Cole v. Turner (1705) 6 Mod. 149, and Bigelow L. C. 218.

[(b) ]Blackst. Comm. iii. 120.

[(c) ]R. v. Cotesworth, 6 Mod. 172.

[(d) ]Pursell v. Horne (1838) 3 N. & P. 564 (throwing water at a person is assault; if the water falls on him as intended, it is battery also). But there is much older authority, see Reg. Brev. 108 b, a writ for throwing “quendam liquorem calidum” on the plaintiff: “casus erat huiusmodi praecedentis brevis: quaedam mulier proiecit super aliam mulierem ydromellum quod anglice dicitur worte quod erat nimis calidum.”

[(e) ]One might expect “believes or causes,” &c.; but this would be an extension of the law. No assault is committed by presenting a gun at a man who cannot see it, any more than by forming an intention to shoot at him.

[(f) ]Criminal Code (Indictable Offences) Bill, s. 203. Mr. Justice Stephen’s definition in his Digest (art. 241) is more elaborate; and the Indian Penal Code has an extremely minute definition of “using force to another” (s. 349). As Mr. Justice Stephen remarks, if legislators begin defining in this way it is hard to see what they can assume to be known.

[(g) ]Bacon Abr. “Assault and Battery,” A; Hawkins P. C. i. 110.

[(h) ]R. v. James (1844) 1 C. & K. 530, is apparently to the contrary. Tindal C. J. held that a man could not be convicted of an attempt to discharge a loaded fire-arm under a criminal statute, nor even of an assault, if the arm is (as by defective priming) not in a state capable of being discharged; but this opinion (also held by Lord Abinger, Blake v. Barnard, 9 C. & P. at p. 628) is against that of Parke B. in R. v. St. George (1840) 9 C. & P. 483, 493, which on this point would almost certainly be followed at this day. The case is overruled on another point, purely on the words of the statute, and not here material, in R. v. Duckworth, ’92, 2 Q. B. 83, 66 L. T. 302.

[(i) ]Stephens v. Myers, 4 C. & P. 349; Bigelow L. C. 217. A large proportion of the authorities on this subject are Nisi Prius cases (cp. however Read v. Coker (1853) 13 C. B. 850, 22 L. J. C. P. 201): see the sub-titles of Assault under Criminal Law and Trespass in Fisher’s Digest. Some of the dicta, as might be expected, are in conflict.

[(k) ]Tuberville v. Savage (1669) 1 Mod. 3.

[(l) ]Holt C. J., Cole v. Turner, 6 Mod. 149.

[(m) ]Steph. Dig. Cr. Law, art. 241, illustrations.

[(n) ]Coward v. Baddeley (1859) 4 H. & N. 478, 28 L. J. Ex. 260.

[(o) ]Innes v. Wylie (1843) 1 C. & K. 257. But it seems the other, if he is going where he has a right to go, is justified in pushing him aside, though not in striking or other violence outside the actual exercise of his right: see p. 160, above.

[(p) ]The Circuiteers, by John Leycester Adolphus (the supposed speaker is Sir Gregory Lewin), L. Q. R. i. 232; Meade’s and Belt’s ca., 1 Lewin C. C. 184: “no words or singing are equivalent to an assault,” per Holroyd J. Cp. Hawkins P. C. i. 110. That it was formerly held otherwise, see 27 Ass. 134, pl. 11, 17 Ed. IV. 3, pl. 2, 36 Hen. VI. 20 b, pl. 8.

[(q) ]Under the old system of pleading this was not a matter of special justification, but evidence under the general issue, an assault by consent being a contradiction in terms: Christopherson v. Bare (1848) 11 Q. B. 473, 17 L. J. Q. B. 109. But this has long ceased to be of any importance in England.

[(r) ]P. 147, above.

[(s) ]Hawkins, P. C. i. 484. The Roman law went even farther in encouraging contests “gloriae causa et virtutis,” D. 9. 2, ad. 1. Aquil. 7, § 4.

[(t) ]Cases collected in Fisher’s Dig. ed. Mews, 2081-2. Similarly where consent is given to an un-reasonably dangerous operation or treatment by one who relies on the prisoner’s skill, it does not excuse him from the guilt of manslaughter if death ensues: Commonwealth v. Pierce, 138 Mass. 165, 180.

[(u) ]Blackst. Comm. iii. 4.

[(v) ]Reece v. Taylor, 4 N. & M. 470.

[(w) ]See Stephen’s Digest of the Criminal Law, art. 200, and cp. Criminal Code Bill, ss. 55-57; and for full discussion Dicey, Law of the Constitution, 4th ed. appx. note iv. There are many modern American decisions, chiefly in the Southern and Western States. See Cooley on Torts, 165.

[(x) ]Reed v. Nutt (1890) 24 Q. B. D. 669, 59 L. J. Q. B. 311.

[(y) ]24 & 25 Vict. c. 100, ss. 42—45. Masper v. Brown (1876) 1 C. P. D. 97, decides that the Act is not confined to suits strictly for the same cause of action, but extends to bar actions by a husband or master for consequential damage: the words of the Act are “same cause,” but they are equivalent to “same assault” in the earlier Act, 16 & 17 Vict. c. 30, s. 1, repealed by 24 & 25 Vict. c. 95.

[(z) ]Blackst. Comm. iii. 127.

[(a) ]Warner v. Riddiford, 4 C. B. N. S. 180; even if he is disabled by sickness from moving at all: the assumption of control is the main thing: Grainger v. Hill (1838) 4 Bing. N. C. 212.

[(b) ]Bird v. Jones (1845) 7 Q. B. 742, 15 L. J. Q. B. 82, per Coleridge J.

[(c) ]Williams J., ib. To the same effect Patteson J.: “Imprisonment is a total restraint of liberty of person.” Lord Denman C. J. dissented.

[(d) ]Ch. IV. p. 97, above.

[(e) ]Stephen, Dig. Crim. Proc. c. 12, 1 Hist. Cr. Law 193: and see Hogg v. Ward (1858) 3 H. & N. 417, 27 L. J. Ex. 443.

[(f) ]This applies only to felony: “the law [i.e., common law] does not excuse constables for arresting persons on the reasonable belief that they have committed a misdemeanour:” see Griffin v. Coleman (1859) 4 H. & N. 265, 28 L. J. Ex. 134.

[(g) ]Stephen, 1 Hist. Cr. Law, 197, 199. As to the common law powers of constables and others to arrest for preservation of the peace, which seem not free from doubt, see Timothy v. Simpson (1835) 1 C. M. & R. 757, Bigelow L. C. 257, per Parke B.

[(h) ]Stephen, 1 Hist. Cr. Law, 200.

[(i) ]Griffin v. Coleman, note (f) last page.

[(j) ]Barker v. Braham (1773) 2 W. Bl. 866 (attorney suing out and procuring execution of void process).

[(k) ]Pp. 72, 73, above.

[(l) ]See Fitzjohn v. Mackinder (1881) Ex. Ch. 1861, 9 C. B. N. S. 505, 30 L. J. C. P. 257.

[(m) ]Willes J., Austin v. Dowling (1870) L. R. 5 C. P. at p. 540; West v. Smallwood (1838) 3 M. & W. 418; Bigelow L. C. 237; nor does an action for malicious prosecution lie where the judicial officer has held on a true statement of the facts that there is reasonable cause: Hope v. Evered (1886) 17 Q. B. D. 338, 55 L. J. M. C. 146; Lea v. Charrington (1889) 23 Q. B. Div. 45, 272, 58 L. J. Q. B. 461.

[(n) ]Grinham v. Willey (1859) 4 H. & N. 496, 28 L. J. Ex. 242.

[(o) ]Austin v. Dowling (1870) L. R. 5 C. P. 534, 39 L. J. C. P. 260. As to the protection of parties issuing an execution in regular course, though the judgment is afterwards set aside on other grounds, see Smith v. Sydney (1870) L. R. 5 Q. B. 203, 39 L. J. Q. B. 144. One case often cited, Flewster v. Royle (1808, Lord Ellenborough) 1 Camp. 187, is of doubtful authority: see Gosden v. Elphick (1849) 4 Ex. 445, 19 L. J. Ex. 9; and Grinham v. Willey, last note.

[(p) ]Lock v. Ashton (1848) 12 Q. B. 871, 18 L. J. Q. B. 76.

[(q) ]Hailes v. Marks (1861) 7 H. & N. 56, 30 L. J. Ex. 389.

[(r) ]Lister v. Perryman (1870) L. R. 4 H. L. 521, 535, per Lord Chelmsford. So per Lord Colonsay at p. 540.

[(s) ]Lord Campbell in Broughton v. Jackson (1852) 18 Q. B. 378, 383, 21 L. J. Q. B. 266; Lord Hatherley, Lord Westbury, and Lord Colonsay (all familiar with procedure in which there was no jury at all) in Lister v. Perryman, L. R. 4 H. L. 531, 538, 539.

[(t) ]Broughton v. Jackson (1852) 18 Q. B. 378, 21 L. J. Q. B. 266: the defendant must show “facts which would create a reasonable suspicion in the mind of a reasonable man,” per Lord Campbell C. J.

[(u) ]Bramwell B., Perryman v. Lister (1868) L. R. 3 Ex. at p. 202, approved by Lord Hatherley, S. C. nom. Lister v. Perryman, L. R. 4 H. L. at p. 533.

[(x) ]H. Stephen on Malicious Prosecution, ch. 7.

[(y) ]Christian’s note on Blackstone iii. 142 is still not amiss, though the amendments of this century in the law of evidence have removed some of the grievances mentioned.

[(z) ]F. N. B. 89 O, 90 H, 91 I; Blackst. Comm. iii. 139. The writ was de uxore abducta cum bonis viri sui, or an ordinary writ of trespass (F. N. B. 52 K); a case as late as the Restoration is mentioned in Bac. Abr. v. 328 (ed. 1832).

[(a) ]Y. B. 19 Hen. VI. 45, pl. 94.

[(b) ]Robert Marys’s case, 9 Co. Rep. 113a. It is held in Osborn v. Gillett (1873) L. R. 8 Ex. 88, 42 L. J. Ex. 53, that a master shall not have an action for a trespass whereby his servant is killed (diss. Bramwell B.). It is submitted that the decision is wrong, and Lord Bramwell’s dissenting judgment right. See pp. 57-59, above.

[(c) ]Blackst. Comm. iii. 140.

[(d) ]Coleridge J. in Lumley v. Gye (1853) 22 L. J. Q. B. at p. 478. Case would also lie, and the common form of declaration was for some time considered to be rather case than trespass: Macfadzen v. Olivant (1805) 6 East 387. See note (f) next page.

[(e) ]20 & 21 Vict. c. 85, ss. 33, 59.

[(f) ]23 Edw. III. (ad 1349): this statute, passed in consequence of the Black Death, marks a great crisis in the history of English agriculture and land tenure. As to its bearing on the matter in hand, see the dissenting judgment of Coleridge J. in Lumley v. Gye (1853) 2 E. & B. 216, 22 L. J. Q. B. 463, 480. The action was generally on the case, but it might be trespass: e. g., Tullidge v. Wade (1769) 3 Wils. 18, an action for seducing the plaintiff’s daughter, where the declaration was in trespass vi et armis. How this can be accounted for on principle I know not, short of regarding the servant as a quasi chattel: the difficulty was felt by Sir James Mansfield, Woodward v. Walton (1807) 2 B. & P. N. R. 476, 482. For a time it seemed the better opinion, however, that trespass was the only proper form: ibid., Ditcham v. Bond (1814) 2 M. & S. 436, see 14 R. R. 836 n. It was formally decided as late as 1839 (without giving any other reason than the constant practice) that trespass or case might be used at the pleader’s option: Chamberlain v. Hazelwood (1839) 5 M. & W. 515, 9 L. J. Ex. 87. The only conclusion which can or need at this day be drawn from such fluctuations is that the old system of pleading did not succeed in its professed object of maintaining clear logical distinctions between different causes of action.

[(g) ]Hartley v. Cummings (1847) 5 C. B. 247, 17 L. J. C. P. 84.

[(h) ]Blackst. Comm. iii. 139; Winsmore v. Greenbank (1745) Willes 577, Bigelow L. C. 328. It was objected that there was no precedent of any such action.

[(i) ]Evans v. Walton (1867) L. R. 2 C. P. 615, 36 L. J. C. P. 307, where it was unsuccessfully contended that the action for seducing a daughter with loss of service as the consequence, and for enticing away a servant, were distinct species; and that to sustain an action for “enticing away” alone, a binding contract of service must be proved.

[(k) ]Willes J., L. R. 2 C. P. 622.

[(l) ]Speight v. Oliviera (1819) 2 Stark. 493, cited with approval by Montague Smith J., L. R. 2 C. P. 624.

[(m) ]Harper v. Luffkin (1827) 7 B. & C. 387. This was long before courts of law did or could recognize any capacity of contracting in a married woman.

[(n) ]Manley v. Field (1859) 7 C. B. N. S. 96, 29 L. J. C. P. 79.

[(o) ]Dean v. Peel (1804) 5 East 45, 7 R. R. 653; even if by the master’s licence she gives occasional help in her parents’ work; Thompson v. Ross (1859) 5 H. & N. 16, 29 L. J. Ex. 1; Hedges v. Tagg (1872) L. R. 7 Ex. 283, 41 L. J. Ex. 169. In the United States it is generally held that actual service with a third person is no bar to the action, unless there is a binding contract which excludes the parents’ right of reclaiming the child’s services—i.e. that service either de facto or de jure will do: Martin v. Payne (Sup. Court N. Y. 1812), Bigelow L. C. 286, and notes.

[(p) ]Bramwell B. in Thompson v. Ross, last note.

[(q) ]Terry v. Hutchinson (1868) L. R. 3 Q. B. 599, 37 L. J. Q. B. 257.

[(r) ]Littledale J. cited with approval by Blackburn J., L. R. 3 Q. B. 602.

[(s) ]Rist v. Faux (1863) Ex. Ch. 4 B. & S. 409, 32 L. J. Q. B. 386.

[(t) ]Grinnell v. Wells (1844) 7 M. & G. 1033, 14 L. J. C. P. 19; Eager v. Grimwood (1847) 1 Ex. 61, 16 L. J. Ex. 236, where the declaration was framed in trespass, it would seem purposely on the chance of the court holding that the per quod servitium amisit could be dispensed with.

[(u) ]See Terry v. Hutchinson, note (q) last page.

[(x) ]Irwin v. Dearman (1809) 11 East 23, 10 R. R. 423.

[(y) ]Hall v. Hollander (1825) 4 B. & C. 660. But this case does not show that, if a jury chose to find that a very young child was capable of service, their verdict would be disturbed.

[(z) ]Note to Grinnell v. Wells, 7 M. & G. 1044.

[(a) ]Starkie’s note to Speight v. Oliviera (1819) 2 Stark. 496.

[(b) ]11 Hen. IV. fo. 1-2, pl. 2, per Huls J. (ad 1410).

[(c) ]22 Hen. VI. 31 (ad 1443).

[(d) ]L. R. 2 C. P. 621-2.

[(e) ]22 Hen. VI. 32 b, per Cur. (Newton C. J.; Fulthorpe, Ascue or Ayscoghe, Portington JJ.); F. N. B. 168 F.

[(f) ]If the tenancy were not at will, the departure would be a breach of contract; this introduces a new element of difficulty, never expressly faced by our courts before Lumley v. Gye, of which more elsewhere.

[(g) ]F. N. B. 87 N.; and see the form of the writ there. It seems therefore that “picketing,” so soon as it exceeds the bounds of persuasion and becomes physical intimidation, is a trespass at common law against the employer.

[(h) ]14 Edw. IV. 7, pl. 13, a writ “quare tenentes suos verberavit per quod a tenura sua recesserunt”; 9 Hen. VII. 7, pl. 4, action for menacing plaintiff’s tenants at will “de vita et mutilatione membrorum, ita quod recesserunt de tenura”; Rastell, Entries 661, 662, similar forms of declaration; one (pl. 9) is for menacing the king’s tenants, so that “negotia sua palam incedere non audebant”; Garret v. Taylor, Cro. Jac. 567, action on the case for threatening the plaintiff’s workmen and customers, “to mayhem and vex them with suits if they bought any stones”; 21 Hen. VI. 26, pl. 9, “manassavit vulneravit et verberavit”: note that in this action the “vulneravit” is not justifiable and therefore must be traversed, otherwise under a plea of son assault demesne; 22 Ass. 102, pl. 76, is for actual beating, aggravated by carrying away timber of the plaintiff’s (merimentum = materiamen, see Du Cange, s. v. materia; in Anglo-French meresme). In ad 1200 an action is recorded against one John de Mewic for deforcing the plaintiff of land which she had already recovered against him by judgment, “so that no one dare till that land because of him, nor could she deal with it in any way because of him”: Select Civil Pleas, Selden Soc. 1890, ed. Baildon, vol. 1, pl. 7. Cp. Reg. Brev. (1595) 104a, “quando tenentes non audent morari super tenuris suis,” and Tarleton v. McGawley (1794) 1 Peake 270, 3 R. R. 689, action for deterring negroes on the coast of Africa from trading with plaintiff’s ship.

[(i) ]Keeble v. Hickeringill (1705) 11 East 574n; 11 R. R. 272n. Cp. Select Civil Pleas, vol. I, pl. 106.

[(k) ]11 East 576; supra, p. 135.

[(l) ]Mogul Steamship Co. v. McGregor, ’92, A. C. 25.

[(m) ]2 E. & B. 216, 22 L. J. Q. B. 463 (1853).