BOOK II. SPECIFIC WRONGS. CHAPTER VI. PERSONAL WRONGS. 1. Assault and Battery. 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. 1 "The least touching of another in anger is a battery; "'1 "for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it." 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. 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. Battery includes assault, and though assault strictly means an inchoate battery, the word is in modern usage constantly made to include battery. The essence of the wrong of assault 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.2 Acts capable in themselves of being an assault may 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 1. Cole v. Turner, 6 Mod. 149, per Holt, C. J.; Big. Lead. Cas., 218. See, generally, Burdick on Torts (3d Ed.), ch. 8. 2. Burdick on Torts, 303. take such language from you; "this was no assault, because the words excluded an intention of actually striking.3 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. Mere passive obstruction is not an assault, as where a man by standing in a doorway prevents another from coming in. Words cannot of themselves amount to an assault under any circumstances.1 Consent, or in the common phrase "leave and license,' will justify many acts which would otherwise be assaults, striking in sport, for example; or even, if coupled with reasonable cause, wounding and other acts of a dangerous Lind, 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. It has been repeatedly held in criminal cases of assault that an unintelligent assent, or a consent obtained by fraud, is of no effect.5 The same principles would no doubt be applied by courts of civil jurisdiction if necessary. 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. The resistance must "not exceed the bounds of mere defence and prevention," or the force used in defence must be not more than" commensurate " with that which provoked it." Menace without assault is in some cases actionable. But this is on the ground of its causing a certain special kind 3. Tuberville v. Savage, 1 Mod. 3. 4. Wash. Cr. Law (2d Ed.), 27; 2 Bish. Cr. Law (7th Ed.), § 25. 5. See, however, Wash. Cr. Law (2d Ed.), 93; 2 Bish. Cr. Law (7th Ed.), §§ 1120, 1122. See Burdick on 6. As to self-defence, see Wash. Cr. Law (2d Ed.), 81 et seq. BOOK II. SPECIFIC WRONGS. CHAPTER VI. PERSONAL WRONGS. 1. Assault and Battery. 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 wongs are likewise indictable offences. "The least touching of another in anger is a battery; "'1 "for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it." 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. 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. Battery includes assault, and though assault strictly means an inchoate battery, the word is in modern usage constantly made to include battery. The essence of the wrong of assault 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. Acts capable in themselves of being an assault may 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 1. Cole v. Turner, 6 Mod. 149, per Holt, C. J.; Big. Lead. Cas., 218. See, generally, Burdick on Torts (3d Ed.), ch. 8. 2. Burdick on Torts, 303. take such language from you; "this was no assault, because the words excluded an intention of actually striking.3 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. Mere passive obstruction is not an assault, as where a man by standing in a doorway prevents another from coming in. Words cannot of themselves amount to an assault under any circumstances.* Consent, or in the common phrase “leave and license, will justify many acts which would otherwise be assaults, striking in sport, for example; or even, if coupled with reasonable cause, wounding and other acts of a dangerous Lind, 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. It has been repeatedly held in criminal cases of assault that an unintelligent assent, or a consent obtained by fraud, is of no effect. The same principles would no doubt be applied by courts of civil jurisdiction if necessary. 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. TY resistance must not exceed the bounds of mere defence and prevention." or the force teed in defence must be not more than commerenrate" with that which provoked (13 Menace without assault is in wome cars adorate Bu this is on the ground of its causing a certain spoila, kini 3. Tuberville T. SATIN 1 M 2 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. 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. 2. 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. "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. And when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is. 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 man is not imprisoned who has an escape open to him; that is, a means of escape which a man of ordinary ability can use without peril of life or limb. 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. We have considered, under the head of General Exceptions, 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 f. 104, pl. 85 (1348), per Thorpe, C. J. 7. Burdick on Torts (3d Ed.), 275. This has been the law from time immemorial. See Year Book of Assizes, |