rigan." You will notice that this offense is not an ordinary case of assault and battery. It is a statutory offense, and to convict, you must be satisfied from the evidence that this man is the husband of the woman who is alleged to be his wife, and that he did assault and beat her.

The counsel for the defendant has asked us to say to you that, if you are satisfied from the evidence that Jeremiah Harrigan struck his wife but a single blow, that you cannot convict him under this indictment. We cannot so instruct you. You have heard the evidence, and you may find him guilty if you find from the evidence that he struck her only a single unlawful blow. Of course, you are to consider the character of the blow and whether it comes up to the measure of beating. As you have often been told, an assault is an unlawful attempt to do violence to the person of another, and a battery is the actual accomplishment of such attempt. No mere words, however opprobrious or vexatious they may be, will justify even an assault, much less a battery. Where one is assaulted it is his first duty to get out of the way. If he cannot reasonably do so, he may use just so much force as is necessary to stay the act of violence against him, or to protect his life or his person from injury. If he uses more force than is necessary for the purpose, he is himself guilty of an unlawful assault. If you find that Jeremiah Harrigan did assault and beat his wife, it is your duty to find a verdict of guilty. If, on the contrary, upon all the evidence, you are not so satisfied, you are bound to find a verdict of not guilty.

Verdict: Guilty.

(4 Pen. 359)

MCDANIEL v. TOWNSEND. (Superior Court of Delaware. New Castle. June 2, 1903.)

JUDGMENT VACATION-LIMITATIONS-
FAILURE TO PLEAD.

1. A judgment by default for plaintiff in an action for tort will not be vacated because suit was not brought within one year, as required by 20 Laws Del. p. 712, c. 594, as such defense must be pleaded.

Action by Henry McDaniel, by his next friend, against Charles De K. Townsend. On rule to show cause why a judgment for plaintiff should not be stricken out and vacated. Rule discharged.

Cause of action was for damages for injuries occasioned on September 23, 1900, to the plaintiff by reason of the collapsing of a brick building owned by defendant in the city of New Castle, Del. Writ issued January 20, 1902. Lands attached. Narr. filed same day, and, on motion of plaintiff's attorney, judgment for want of an appearance. May 28, 1902, the following petition in said case, supported by affidavit of defendant,

was filed: "In the Superior Court of the State of Delaware, in and for New Castle County. * * City of New York, County of New York-ss.: Personally appeared before me, Mortimer S. Brown, a-notary public in and for the state and county of New York, residing in the city of New York, Charles De K. Townsend, the defendant in the above-stated suit, who, being by me solemnly sworn, deposes and says that the above action is brought for the recovery of damages upon a claim for alleged personal injuries to said plaintiff; that the said alleged personal injuries were received by said plaintiff on the 23d of September, A. D. 1900; that the said action was brought and the said suit of foreign attachment was issued out of the said superior court on the 20th of January, A. D. 1902; and that the said action was brought after the expiration of one year from the date upon which it is claimed that such alleged injuries were sustained. * *99 On motion of Alexander B. Cooper, rule granted upon plaintiff that the proceedings be stayed or dismissed, or the action stricken from the record, and property attached be discharged. Plaintiff's counsel accepts service of said rule May 28, 1902. June 26, 1902, after argument by respective counsel, rule discharged. March 4, 1903, amount ascertained by inquisition at bar, $5,000. March 7, 1903, petition and affidavit filed, and, on motion of Alexander B. Cooper, rule granted upon plaintiff to show cause why the inquisition in the above case should not be set aside, and a new trial had. May 28, 1903, affidavit filed, and, on motion of Alexander B. Cooper, rule granted upon plaintiff to show cause why the judgment in the above case should not be stricken off and vacated on the ground that the action was not commenced within one year, as required by 20 Laws Del. p. 712, c. 594. Plaintiff claimed that failure to plead limitations waived the bar of the statute. Argued before LORE, C. J., and GRUBB and PENNEWILL, JJ.

William S. Hilles, for plaintiff. Alexander B. Cooper (special appearance), for defendant.

LORE, C. J. The court are unanimous that both of these rules ought to be discharged, and so order.

(4 Pen. 319)

In re WARTHMAN. (Superior Court of Delaware. Kent. May 8, 1903.)

JUDGMENTS-DEFAULT-APPLICATION TO

OPEN-FOREIGN ATTACHMENT

-DISSOLUTION.

1. Where a judgment has been rendered against defendant in foreign attachment, and he alleged in an application to open the same and for permission to defend that he had had no notice of the proceedings, and had not, therefore, appeared, and that he was not indebted to the plaintiff, and had a just and legal defense

to the whole cause of action, his application to open the judgment will be granted.

2. Where defendant was sued by foreign attachment, and a judgment recovered was subsequently opened to permit defendant to defend, the attachment would be retained, subject to the further order of the court.

Application by John Warthman to open a judgment in an action against him by foreign attachment. Application granted.

The petition was in the following form, to wit:

"The petition of John Warthman, of the town of Port Norris, and state of New Jersey, respectfully represents: That at the October term, A. D. 1902, of this court, a judgment upon foreign attachment proceedings at the suit of Hezekiah Harrington was recovered against your petitioner for the sum of two hundred and ninety-two dollars and ninety-six cents, said judgment being of record in the office of the prothonotary of this court in continuance docket No. 18, page 29. That the writ of foreign attachment upon which said judgment was obtained was issued out of this court on the 18th day of March, A. D. 1902, the same being No. 39 to the April term, 1902, of this court. That your petitioner had no notice or knowledge of the said proceedings, nor the issuance of the said writ of foreign attachment, nor the recovery of the said judgment, and that he was not present in person or by attorney at the rendition of the judgment aforesaid, nor at any stage of the proceedings. That your petitioner was never informed by the said Hezekiah Harrington, nor by any one for him, of any claim against him, nor did he know that any such existed until after the rendition of the said judgment and the holding of the inquisition thereon. That to the best of his knowledge and belief he is not now, nor was he at the time of the issuance of the said writ of foreign attachment, indebted to the said Hezekiah Harrington in any amount whatever. That your petitioner has a just and legal defense to the whole of the cause of action in the said suit. Your petitioner therefore prays that the said judgment may be opened, and that he may be permitted to appear in this court, and disprove or avoid the said debt or claim; and he will ever pray," etc. The above petition was duly signed and sworn to. The property attached was stock of the First National Bank of Harrington.

Argued before LORE, C. J., and SPRUANCE and BOYCE, JJ.

James H. Hughes, for plaintiff. George M. Jones, for defendant.

Mr. Jones asked that he be allowed to enter into a recognizance, appear in court, and move to dissolve the attachment.

LORE, C. J. Your application is to open the judgment for the purpose of ascertaining 2. See Attachment, vol. 5, Cent. Dig. § 752.

what is due thereon, if anything. The judgment is opened for that purpose, but the attachment remains. It is not dissolved. Until we dispose of this question, the property is held by the attachment, subject to the judgment of the court.

(4 Pen. 353)

KENNEDY v. DELAWARE COTTON CO. (Superior Court of Delaware. New Castle. June 1, 1903.)

MASTER AND SERVANT-DEATH OF SERVANT -DECLARATIONS-ACTS OF NEGLI

GENCE-SPECIFICATIONS.

1. In an action for the death of a servant, a narr. averring that deceased was employed by defendant, and stationed at a machine known as a "calender," and that the appliances connected therewith, which were dangerous to life, were unprotected, and moved by steam power, and that by means of the premises such deceased was caught, bruised, and instantly killed by such machine and appliances, was not demurrable for indefiniteness.

2. Counts in a narr, to recover damages for the death of a servant. alleged to have been caused by defendant's negligence in failing to keep a particular machine in repair, and in omitting to provide sufficient instrumentalities and guards for the protection of such servant, were demurrable, where they did not specify in what respect defendant omitted to repair the machine, or what appliances defendant omitted to provide.

3. A count in a narr, for the death of a servant, alleging negligence in carelessly starting a certain machine without notifying deceased, was insufficient, where it did not designate the particular machine claimed to have been negligently started.

Action by James Lea Kennedy against the Delaware Cotton Company. On demurrer to narr. Sustained, except as to first count.

Action on the case by the father of the plaintiff for damages by the latter's death, alleged to have been occasioned by the neg ligence of the defendant. The narr. consisted of seven counts, all of which were demurred to by the defendant, except the second count.

Argued before LORE, C. J., and GRUBB and PENNEWILL, JJ.

Levin F. Melson, for plaintiff. William S. Hilles, for defendant.

The allegations contained in the first count of the narr. were, inter alia, as follows: "(1) For that whereas, heretofore, to wit, at the time of the committing of the grievances hereinafter mentioned, the said the Delaware Cotton Company, the defendant above named, was, and still is, a corporation existing under the laws of the state of Delaware, in control of and operating a certain factory at the city of Wilmington, in the county of New Castle aforesaid, and the said plaintiff's son James Lea Kennedy was then and there a minor hired and employed by the said defendant to work for it in its said factory. And the said plaintiff avers that heretofore, to wit, on the 25th day of October, A. D. 1901, at New Castle county aforesaid, the

said James Lea Kennedy, then and there a minor under the age of fourteen years and a half, to the knowledge of said defendant, was employed by said defendant in a certain room in its said factory, known as the 'finishing room,' and that the said defendant then and there negligently and carelessly, in violation of law, employed the said James Lea Kennedy in a place unsafe and dangerous to the life and limb of him, the said James Lea Kennedy, to wit, at, near, or on a certain machine known as a 'calender,' and the appliances connected thereto, they being then and there uncovered, unprotected, and moved by steam power, and thereby and by means of the premises the said James Lea Kennedy, who was then and there in the exercise of due care and caution on his part, to wit, on the day and year aforesaid, at New Castle county aforesaid, was caught, bruised, mangled, and instantly killed by said machine and appliances," etc.

The demurrers to the first count were as follows: (1) That the said count is uncertain and indefinite. (2) That there is no connection between the alleged negligence of the defendant and the injury to James Lea Kennedy set forth in said count. (3) That it does not appear from the said count in what particular said defendant has violated any law of the state of Delaware. (4) It does not appear therefrom what appliances were uncovered or unprotected."

Mr. Hilles: My cause of demurrer to that count is that it is uncertain and indefinite.

LORE, C. J. We think that the first count is sufficient. It avers that the deceased was employed at the place or machine known as a "calender," with the appliances connected therewith, which was dangerous to life, being then and there uncovered, unprotected, and moved by steam power, and that by means of the premises said James Lea Kennedy was caught, bruised, mangled, and instantly killed by the said machine and the appliances. We overrule the demurrer as to that count.

Mr. Hilles: I will ask leave to plead to that count. Now we come to the third count, which states, as to the calender, that "the said defendant negligently and carelessly suffered and permitted a certain calender to be out of order and repair, whereby the said James Lea Kennedy, who was then and there engaged in his occupation as aforesaid, and at work upon the said calender, in the exercise of due care and caution on his part, was, by reason of said calender so being out of order and repair as aforesaid, thereby greatly injured, and by means of the premises instantly killed," etc. The defendant is not informed by that count whether the deceased was hurt with the same calender that was out of order, nor is it alleged in what particular it was out of order and repair.

LORE, C. J. The third count comes directly within the decision in the case of Clark v. Diamond State Steel Company, 2 Pennewill, 522, 47 Atl. 1014. We sustain the dezurrer to the third count, because the narr. does not specify in what respect the defendant omitted to provide for the repair or keeping in repair of the machine.

Mr. Melson: That will apply also to No. 6. LORE, C. J. The demurrer as to No. 3 and No. 6 is sustained.

Mr. Hilles: The fourth count alleges "that the defendant negligently and carelessly omitted to provide for a certain machine in the said factory, known as a 'calender,' sufficient tools, instrumentalities, and proper guards for the protection of the said James Lea Kennedy, working thereon, whereby the said James Lea Kennedy, who then and there, to wit, on the 25th day of October, 1901, at New Castle county aforesaid, in the exercise of due care and caution on his part, was so greatly bruised and injured that he afterwards, to wit, on the same day, died, of and from the bruises and injuries so received as aforesaid," through the negligence of the said defendant, etc. My demurrers to that count are: (1) It does not appear therefrom what tools, instrumentalities, or proper guards should have been placed on the said calender; (2) there is no connection between the allegation of negligence in the said count and the injury to the said James Lea Kennedy.

LORE, C. J. That count does not state what the defendant omitted to provide that he should have provided. The narr. must give the defendant reasonable notice of what he is to meet. We sustain the demurrer to No. 4.

Mr. Hilles: The fifth count alleges that the said plaintiff "was in the said factory, at, near, or on one certain machine of the said defendant; that the said defendant then and there knew, or by the exercise of due care and caution should have known, of said James Lea Kennedy's said situation and position, yet the said defendant, in disregard of its duty to him in that behalf, negligently and carelessly started or put in motion the said machine, without giving proper notice or warning to the said James Lea Kennedy, whereby the said James Lea Kennedy, who was then and there in the exercise of due care and caution on his part, to wit, on the day and year aforesaid, at New Castle county aforesaid, was thereby crushed and killed," etc. Our demurrers to that count are (1) that the said count is uncertain. (2) It does not appear therefrom what duty, if any, the defendant owed to the said James Lea Kennedy as to giving notice of the starting of the said machine.

LORE, C. J. That count is insufficient, because it does not designate any particular machine. The declaration must notify the

defendant of what he is to meet. We sustain the demurrers to the fifth count.

Mr. Hilles: The seventh count is similar to the sixth-not stating the name of the machine.

LORE, C. J. We have just ruled upon that. It must specify the machine. We overrule the demurrer to the first count, and sustain the demurrers to the third, fourth, fifth, sixth, and seventh counts.

At the election of the plaintiff's counsel, judgment of respondeat ouster was entered, leave being given defendant to amend.

(75 Conn. 637)

FRISBIE v. MORRIS et al.

tent unjustly to vex and trouble the plaintiff, and had caused him a loss of $450. The first paragraph of the answer denied the allegations contained in paragraphs 2, 3, and 4 of the complaint; and the remaining paragraphs of the answer (2, 3, 4, 5, 6, 7, 8) set up, in substance, the following facts: (2) The defendants were selectmen of Waterbury during the year ending October 1, 1900; (3) the town of Waterbury is in the probate district of Waterbury; (4 and 5) during the year last aforesaid the plaintiff resided and had h's domicile and had a large amount of property in said town of Waterbury; (6) "all of the acts alleged in paragraph 1 of the complaint were done by the defendants, acting as selectmen as aforesaid, pursuant to the law of this state in such case made and provided"; (7 and 8) on July 14, 1900, the court of pro

4, 1903.)

MALICIOUS PROSECUTION-APPOINTMENT OF

CONSERVATOR-OUTSTANDING JUDGMENT -PROBABLE CAUSE.

1. Gen. St. 1902, § 1105, provides that, if one shall commence a suit against another without probable cause and with malicious intent, he shall suffer treble damages. Held, that the fact that the judgment of a probate court appointing a conservator for plaintiff was outstanding and unappealed from was conclusive against him in his action under the statute against the selectmen for instituting the proceedings, since it showed probable cause.

Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.

Action, for the malicious prosecution of a civil suit, by Walter L. Frisbie against Perry C. Morris and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Wilson H. Pierce and Percy S. Bryant, for appellant. Lucien F. Burpee and Terrence F. Carmody, for appellees.

TORRANCE, C. J. The statute (Gen. St. 1902, § 1105) provides, in substance, that if any person shall commence and prosecute any suit or complaint against another "without probable cause, and with a malicious intent to unjustly vex and trouble him, he shall pay him treble damages." This statute appears to have been first enacted in 1672 (Revision of 1808, p. 671, tit. 167), and it has, with some changes in phraseology, formed part of our law ever since. The present action is brought upon this statute. The complaint sets forth, in paragraph 1, the following facts:

"On July 2, 1900, the defendants brought an application against the plaintiff to the probate court for the district of Waterbury, claiming the appointment of a conservator over the plaintiff, and caused said application to be served upon him, returnable to said probate court on the 14th day of July, 1900, and on said day prosecuted said application against the plaintiff."

The remaining paragraphs of the complaint (2, 3, 4) allege, in substance, that said application was commenced and prosecuted without probable cause, and with a malicious in

the plaintiff, on the application set forth in the complaint, and no appeal has been taken from said appointment.

The plaintiff demurred on the following grounds: (1) "The fact that the defendants acted in the capacity of selectmen of the town of Waterbury does not constitute a legal jus

tification or excuse for the commission of the acts alleged in the plaintiff's complaint; (2) the laws therein referred to do not authorize or justify a complaint made with malicious intent unjustly to vex and trouble the person complained of." To the other paragraphs of the answer, setting up new matter, the plaintiff made no reply. The court overruled the demurrer. The plaintiff then, by consent, filed a reply in which he admitted the truth of all the new matter set up in the answer, except that contained in paragraph 6, as to which he alleged that he had "no knowledge or information sufficient to form a belief," and left the defendants to their proof.

As soon as this reply was filed, the defendants, in writing, made a motion for judgment in their favor, "based on the allegations of the plaintiff in his complaint, and his admissions contained in his reply" to the answer. The court granted the motion, and rendered judgment for the defendants.

The reasons of appeal are based solely upon the action of the trial court in overruling the demurrer and in granting the motion.

An action brought under our statute for the malicious prosecution of a civil suit "is subject to the same general principles as are actions on the case, for malicious prosecutions at common law." Goodspeed v. East Had. dam Bank, 22 Conn. 530, 535, 58 Am. Dec. 439. In actions for malicious prosecutions and in actions under our statute for vexatious suit, two of the essential allegations are (1) that no probable cause existed for instituting the prosecution or suit complained of; and (2) that such prosecution or suit terminated in some way favorably to the defendant therein. 1 Swift's Digest, pp. 491, 494, 647; Munson v. Wickwire, 21 Conn. 513, 515; Wall v. Toomey, 52 Conn. 35; Thompson v.

1

Beacon Valley Rubber Co., 56 Conn. 493, 16 Atl. 554. So long as the prosecution claimed to be malicious, or the suit claimed to be vexatious, is pending, "it cannot be known but that the party will be convicted upon it, or that it was commenced and carried on from motives of malice, without probable cause." 1 Swift's Digest, p. 491. In both actions, if it appears that probable cause existed, the defendant will prevail, even though it also appear that he instituted the proceeding complained of maliciously. "Let there be ever so much malice, if there was probable cause, the prosecution was justifiable." Swift's Digest, pp. 491, 492; Thompson v. Beacon Valley Rubber Co., 56 Conn. 493, 16 Atl. 554. "For maliciously prosecuting a good cause of action in the manner provided by law, there is no remedy, because there is no wrong." Johnson v. Reed, 136 Mass. 421, 423. Moreover, if in the action for malicious prosecution or for vexatious suit it appears that the prosecution properly ended in a judgment of conviction, or that in the civil suit judgment was properly rendered against the defendant therein, such outstanding judgment is, as a general rule, conclusive evidence of the existence of probable cause for instituting the prosecution or the suit. "The conviction of the plaintiff is justly considered as conclusive evidence of probable cause." Carpenter, J., in Brown v. Randall, 36 Conn. 56, 63, 4 Am. Rep. 35; Monroe v. Maples, 1 Root, 553; Goodrich v. Warner, 21 Conn. 432, 443; 19 Amer. & Eng. Ency. of Law (2d Ed.) pp. 667, 668, and cases cited.

Applying the foregoing principles to the case at bar, we think the trial court committed no error in overruling the demurrer, and in rendering judgment upon the motion. Upon the pleadings as they stood when the demurrer was overruled, and when the motion was granted, it conclusively appeared from the record that the proceeding of which the plaintiff complained had terminated in a valid outstanding judgment against him. It thus, in effect, conclusively appeared from the record that at least probable cause existed for the action of the selectmen of which the plaintiff complained, and therefore that the plaintiff had no cause of action.

There is no error. The other Judges concurring.

(75 Conn. 621)

KING v. FOUNTAIN WATER CO. (Supreme Court of Errors of Connecticut. June 4, 1903.)

ARBITRATION-SUBMISSION AND AWARD-CON

STRUCTION-DAMAGES COVERED.

1. A submission providing for a determination of damages resulting or which might result to plaintiff by reason of the maintenance of a dam by defendant, thus forcing back water on plaintiff's land above the dam, and diverting water from his mill below the dam, and giving defendant a perpetual right to set back water on plaintiff's land to the extent that the same

could be flowed by said dam as then constructed, and the right to divert in pipes from said dam "all the water needed to supply any useful demand," and an award of $300 for rights granted and damages caused by reason of the continuance of the dam and flowage of water, and, of $300 for damages past and future by reason of the diversion of water "for all purposes for which defendant could use said water," covered all future damages resulting from the diversion of the water by reason of the maintenance of the dam at its then height or at a greater height.

Appeal from Superior Court, New Haven County; John M. Thayer, Judge.

Action by John King against the Fountain Water Company for damages for diverting the water of a stream to the injury of the plaintiff's mill privilege, and for fouling the stream. Judgment for the plaintiff upon the first and second counts of the complaint, and appeal by the defendant for alleged errors in the rulings and judgment. Error in judgment upon first count. No error in judgment upon second count.

HALL, J. The defendant company was duly incorporated, prior to 1872, for the purpose, among other things, of furnishing the inhabitants of West Ansonia with an abundant supply of pure water and ice for public and domestic use. For this purpose, in July, 1872, the defendant constructed a dam and reservoir across a stream which contributed to the supply of a water power and mill privilege below, and laid pipes in the streets of West Ansonia for the diversion and distribution of the water of said stream. In December, 1872, the plaintiff, who owned the land above the defendant's dam, and the owners of the mill and mill privilege below (of whom the plaintiff, now the sole owner thereof, was one) and the defendant company, executed a written instrument, by which, after reciting that in pursuance of the object of its incorporation the defendant had constructed said dam, and that it would set back the waters of said stream upon the plaintiff's land, and that the defendant had "laid pipes in the highways and streets" for conducting water, and that the water of said stream, "when permitted to flow through said pipes for distribution," would, "to the extent the same shall flow through said pipes, be diverted from said stream," to the injury of the water power below, the said parties, for the purpose of determining the matters in controversy between them and ascertaining the damages, as stated in the words of the submission, "for all trespasses and injuries that are proved, and for injury that may occur hereafter, by the flowing of the land of said John King, and all damage that may occur to said proprietors of said sawmill and land below said dam by reason of said diversion of water hereafter," mutually agreed in part as follows: "Said Fountain