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by such fire; and if he should not pay the same immediately on demand of the churchwardens, he shall be committed by the justices to some workhouse or common gaol, or house of correction, for eighteen months, there to be kept to hard labor.

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What amounts to an assault.] An assault is any attempt or offer with force or violence to do a corporal hurt to another, whether from malice or [ *258 ] wantonness, as by striking at him or even holding *up the fist at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability, of actual violence against his person, as by pointing a weapon at him when he is within the reach of it (1).

Striking at another with a cane, stick, or fist, although the party striking misses his aim; 2 Roll. Abr. 545, 1. 45; drawing a sword or bayonet, or throwing a bottle or glass with intent to wound or strike; presenting a gun at a man who is within the distance to which the gun will carry ; pointing a pitchfork at him when within reach of it; or any other act, indicating an intention to use violence against the person of another is an assault. 1 Hawk. c. 62, s. 1.

Although to constitute an assault there must be a present ability to inflict an injury, yet if a man is advancing in a threatening attitude to strike another, so that the blow would almost immediately reach him, if he were not stopped, and he is stopped, this is an assault. Stephens v. Myers, 4 C. and P. 349(a).

So there may be an assault by exposing a child of tender years, or a person under the control and dominion of the party, to the inclemency of the weather. Ridley's case, 2 Campb. 650; 1 Russell, 605. But a mere omission to do an act cannot be construed into an assault. Thus where a man kept an idiot brother who was bed-ridden, in a dark room in his house, without sufficient warmth or clothing, Burrough, J., ruled that

(1) 1 Wheeler's C. C. 365. V. States o. Ortega, 4 Wash. Ç. C. Rep. 534. State o. Davis & al. i Hill, 46. State o. Beck & al. Id. 363. is an assault to attempt to run against the wagon of another on the highway. People o. Lee, 1 Wheeler's C. c. 364. It is not an assault to point a cane at one in the street, in derision and for the purpose of insult, but with. out an intention to strike. Goodwin's case, 6 Rogers's Rec. 9.

(a) Eng. Com. L. Rep. xix. 414.

these facts would not support an indictment for assault and false imprisonment; for although there had been negligence, yet mere omission, without a duty, would not create an indictable offence. Smith's case, 2 C. and P. 449 (a).

If a master take indecent liberties with a female scholar, without her consent, though she do not resist, he will be guilty of a common assault. Nichol's case, Russ. and Ry. 130. And where a person professing medicine, desired a young girl who came to him as a patient, to strip

naked, and himself took off her clothes and rubbed her with something from a bottle, and he was indicted as for a common assault: the judge left it to the jury to say whether the prisoner really believed that the stripping her could assist him in curing her ; the jury having found that he had no such belief, and that it was wholly unnecessary, he was convicted : and on a case reserved, the judges held that the conviction for a common assault was right. Rosinski's case, 1 Moody, C. C. 19 (b).

If a man goes to bed to a married woman, and has connection with her, she consenting under the belief that it is her husband, this is an assault, and the fact that there was no resistance on her part makes no difference, as the fraud is sufficient to make it an assault. Williams's case, 8 C. and P. 286 (c). See also Saunders's case, Ib. 265.

But an attempt to commit the misdemeanor of having carnal knowledge of a girl between ten and twelve years old, is not an assa

ssault, as the consent of the girl puts an end to the charge of assault. Meredith's case, 8 C. and P. 589 (d). Bank's case, post, 265.

*If parish officers cut off the hair of a pauper in the work- [ *259 ] house, with force and against his consent, it is an assault. Forde v. Skinner, 4 C. and P. 237 (e).

If a person puts a deleterious drug (as cantharides,) into coffee, in order that another may take it; if it be taken, he is guilty of an assault upon the party by whom it is taken. Button's case, 8 C. and P. 660 ($).

An unlawful imprisonment is also an assault. 1 Hawk. c. 62, s. 1.

It has been frequently said that every imprisonment includes a battery. B. N. P. 22; 1 Selw. N. P. Imprisonment, I. But this doctrine has been denied. Emmett v. Lyne, 1 N. R. 255.

When the injury is actually inflicted it amounts to a battery, which includes an assault, and this, however small it may be, as by spitting in a man's face or in any way touching him in anger

without lawful provocation. 4 East, P. C. 406; B. N. P. 15; Hawk. P. C. b. 1, c. 62, s. 12; 1 Russell, 604.

In cases of assault, as in all other offences, if several act in concert, encouraging one another and co-operating, they are all equally guilty, though only one commit the actual assault. Per Bayley, J., Anon. 1 Lewin, C. C. 17 (1).

What does not amount to an assault.] Although it was formerly doubted, it is now clear that no words, whatever nature they may be of, will constitute an assault. Hawk. P. C. b. 1, c. 62, s. 1; 1 Bac. Ab. Assault and Battery (A); 1 Russell, 604. But words may qualify what would

(1) Bell o. Miller, 5 Ohio, 251. (a) Eng. Com. L. Rep. xii. 215. (6) 2 Eng. C. C. 19. (c) Eng. Com. L. Rep. xxxiv. 392.

(d) Id. 539. (e) Id. xix. 364. (f) Id. xxxiv. 573.

otherwise be an assault, by showing that the party intends no present corporal injury, as where a person meeting another laid his hand upon his sword saying, “ If it were not assize time I would not take such language from you ;" for it shows that he had not a design to do the party any corporal hurt. Turberville v. Savage, 1 Mod. 3; 2 Keb. 545 (1).

What does not amount to an assault-accident.) Where an injury is purely accidental and the party wholly witbout fault, it will not amount to a battery. Weaver v. Ward, Hob. 134; 2 Roll. Ab. 548. Thus where the defendant was indicted for throwing down skins in a yard, being a public place, by which a man's eye was beaten out, it appearing that the wind blew the skin out of the way, and that the injury was caused by this circumstance, the defendant was acquitted. Gill's case, I Str. 190.

But if in the course of an unlawful act a blow is struck, as where two persons are engaged in fighting, and one of them accidentally and unintentionally strikes a third person, this is not such an accident as will prevent the blow fro:n being a battery. James v. Campbell, 5 C. and P. 372 (c.)

There is a distinction in cases of accident, with regard to the liability of the party, in civil and in criminal proceedings. Thus, it is said by Hawkins, that it seems that a man, shall not forfeit a recognizance of the peace by a hurt done to another merely through negligence or mischance, ( 260 ) as where one soldier hurts another by *discharging a gun in exercise without sufficient caution; for notwithstanding such person must in a civil action give the other satisfaction for the damage occasioned by his want of care, yet he seems not to have offended against the purport of such a recognizance, unless he be guilty of some wilful breach of the peace. Hawk. P. C. b. 1, c. 60, s. 27. It is said that it may be deemed a general rule in criminal cases, that the same facts which make killing homicide by misadventure (vide post) will be a good defence upon an indictment for a battery. Archb. Cr. Law, 418, 7th ed.

What shall not amount to an assault--amicable contest.] An injury received in playing at any lawful sport, as cudgels, by consent, will not amount to a battery in law, for the intent of the parties is not unlawful but rather commendable, and tending mutually to promote activity and courage; yet it seems it would be otherwise, if the fighting were with naked swords, because no consent can make so dangerous a diversion lawful. Hawk. P. C. b. 1, c. 60, s. 26. Com. Dig. Pleader, (3 M. 18.) Bul. N. P. 15. In an action for assault and battery, where it was insisted as a defence that the plaintiff and defendant fought by consent, Parker, C. B., said, that fighting being unlawful, the consent of the plaintiff would be no bar to the action ; and he cited a case where Reynolds, C. B., in an action to recover five guineas on a boxing-match, held the consideration illegal. Boulter v. Clarke, B. N. P. 16. These decisions appear only to apply to unlawful games, amongst which boxing and boxing-matches are to be considered. See post, as to what shall be deemed lawful sports, title, Murder.

(1) Commonwealth o. Eyre, 1 S. & R. 347.

(a) Eng. Com. L. Rep. xxiv. 367.

What does not amount to an assault_lawful chastisement.] If a parent in a reasonable manner chastise his child, or a master his servamt (1), being actually his servant at the time, or a schoolmaster his scholar (2), or a gaoler his prisoner, or a husband his wife, or if one confine a friend who is mad, and bind and beat him, in such circumstances it is no assault. Hawk. P. C.b. 1, c. 30, s. 23. Com. Dig. Pleader, (3 M. 13.) A defendant may justify even a mayhem, if done by him as an officer of the arıny for disobedience of orders, and he may give in evidence the sentence of a council of war, upon a petition against him by the plaintiff; and if by the sentence the petition is dismissed, it will be conclusive evidence in favor of the defendant. Lane v. Degberg, B. N. P. 19. In all cases of chastisement it must, in order to be justifiable, appear to have been reasonable. | East, P. C. 406; and see post, title, Murder.

What does not amount to an assault-self-defence.] A blow or other violence necessary for the defence of a man's person against the violence of another will not constitute a battery. Thus if A. lift up his stick and offer to strike B., it is a sufficient assault to justify B. in striking A., for he need not stay till A. has actually struck him. B. N. P. 18.

B. N. P. 18. But every assault will not justify every battery, and it is matter of evidence whether the assault was proportionable *to the battery; an assault may [ *261 ) indeed be of such a nature as to justify a mayhem ; but where it appeared that A. had lifted the form upon which B. sat, whereby the latter fell, it was held no justification for B.'s biting off A.'s finger. B. N. P. 18. In cases of assault, as in other cases of trespass, the party ought not in the first instance to beat the assailant, unless the attack is made with such violence as to render the battery necessary. Weaver v. Bush, 8 T. R. 78; 1 Russell, 609. Where a man strikes at another within a distance capable of the latter being struck, nature prompts the party struck at to resist, and he is justifyed in using such a degree of force as will prevent a repetition. Per Parke, B., Anon. 2 Lewin, C. C. 48.

The rule on this point is well laid down by a writer on Scotch law, “ though fully justified in retaliating, the party must not carry his resentment such a length as to become the assailant in his turn, as by continuing to beat the aggressor after he has been disabled, or has submitted, or by using a lethal or ponderous weapon, as a knife, poker, hatchet, or hammer, against a fist, or cane, or in general pushing his advantage, in point of strength, or weapon, to the uttermost. In such cases the defence degenerates into aggression, and the original assailant is entitled to demand punishment for the new assault committed on him after his original attack had been duly chastised.” Alison's Princ. Cr. Law of Scot. 177 ; 1 Hume,

335 (3).

What does not amount to an assaultinterference to prevent breach of the peace, &c.) A man may justify an assault and battery, in preventing the commission of a felony or breach of the peace, or in the suppression of a riot, &c., as if he force a sword from one who offers to kill

(1) A master has no right to correct his hired servant. Commonwealth o. Baird, l'Ashmead, 267. The authority of the master to correct his apprentice is personal. People o. Phillips, 1 Wheeler's C. C. 159.

(2) Morris's case, 1 Rogers' Rec. 53.
(3) State o. Wood, 1 Bay. 282. Elliott v. Brown, 2 Wend. 497.

another therewith, or gently lay his hands upon another, and thereby stay him from inciting a dog against a third person. Hawk. P. C. b. 1, c. 60, s. 23 ; 1 Russell, 608; Com. Dig. Pleader, (3 M. 16.) See Timothy v. Simpson, I C. M.and R. 757.

Although where there is an actual assault, any one may interfere between the parties to prevent a further breach of the peace, and may justify an assault in so doing, yet a further privilege is given to persons standing in a particular relation. Thus in the case of husband and wife, where the latter is charged with a battery, it is a justification for her that A. B., the person struck, was going to wound her husband, and that she committed the assault to defend him, and prevent A. B. from beating him. B. N. P. 48; 1 Lord Raym. 62. So the husband may justify a battery in defence of his wife. In like manner, a child may justify any assault in defence of his parent. B. N. P. 19; Hawk. P. C. b. 1, c. 60, s. 23.

Though a servant may justify an assault in defence of his master, yet it has been said that a man cannot justify an assault in defence of his servant, because he may have an action per quod servitium amisit; but the servant can have no action for an assault upon his master. Leward v. Baseley, 1 Lord Raym. 62; 1 Salk. 407; B. N. P. 18. The reason ap( *262) pears to be an insufficient one, since *it would be equally applicable to the case of a husband committing an assault in defence of his wife, for an injury to whom an action per quod consortium amisit will lie. Hawkins, though he states that there are opinions to the contrary, lays down the rule as including the case of a master committing an assault in defence of his servant. Hawk. P. C. b. 1, c. 60, ss. 23, 24. And this also was the opinion of Lord Mansfield, “I cannot say,” he observes, “ that a master interposing when his servant is assaulted, is not justifiable under the circumstances, as well as a servant interposing for his master. It rests on the relation between master and servant.” Tickell v. Read, Lofft. 215; 1 Russell, 608. A servant cannot, as it seems, justify an assault in defence of his master's son. Hawk. P. C. b. 1, c. 60, s. 24; 1 Russell, 609. Nor a tenant in defence of his landlord. Leward v. Baseley, 1 Lord Raym. 62

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What does not amount to an assault-defence of possession.] A man may justify an assault and battery in defence of his lands or goods, or of the goods of another delivered to him to be kept. Hawk. P. C. b. 1, c. 60, 8. 23 (1). In these cases, unless the trespass is accompanied with violence, the owner of the land will not be justified in assaulting the trespasser in the first instance; but should request him to depart or desist, and if he refuses, should gently lay hands on him for the purpose of removing him, and if he resist with force, then force may be used in return by the owner, sufficient to effect his expulsion (2). Weaver v. Bush, 8 T. R. 78; 2 Roll. Ab. 548; 1 East, P. C. 406; B. N. P. 19. But it is otherwise, if the trespasser enter the close with violence, in which case the owner may, without a previous request to depart, use violence in re

(1) A person, who has purchased a ticket for a public ball, has no right to assault the master, should he refuse him admittance. Simon's case, 3 Rogers, 39.

(2) The force used must not exceed the necessity of the case. Baldwin 7. Haydon & al., 6 Conn. 453. State o. Lazarus, 1 Rep. Const. Ct. 34. Wartrous o. Steel, 4 Verm. 629. Shain o. Markham, 4 J. J. Marsh. 578.

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