jury: there was evidence to go to them of grievous bodily harm, and that the question of whether the prisoner intended to inflict grievous bodily harm did not arise. The jury found the prisoner guilty of an aggravated assault, without premeditation, under the influence of passion:Held that the assault was intentional in the understanding of the law; that upon the facts, the jury were justified in finding the defendant guilty of an assault with grievous bodily harm, and that the prisoner was properly convicted of that offence. (a)

An indictment charging a prisoner with shooting at A. B., with intent to do him grievous bodily harm, is well supported by evidence, shewing that he fired a loaded pistol, indiscriminately into a group, intending to do grievous bodily harm, and that he hit A. B. (b)

In construing the latter part of the 32 & 33 Vic., c. 20 s. 19, we should read the section as though the term malicious had been introduced. It is an essential element in a conviction, under this section, that the act which caused the unlawful wounding should have been done maliciously as well as unlawfully. (c)

The prosecutor and the prisoner were out at night, in separate punts on a creek, in pursuit of wild fool. The prisoner, who was jealous of any one going there to shoot, and had threatened to fire at birds, notwithstanding other persons might be between him and them, discharged his gun from a distance of twenty-five yards towards the punt, in which the prosecutor lay paddling. At that moment the prosecutor's punt slewed round, and the prosecutor was struck by some of the shot and seriously wounded, whereupon the prisoner rendered him help, assuring him that the injury was an accidental re

(a) Reg. v. Sparrow, 8 U. C. L. J. 55; Bell, 298; 30 L. J. (M. C.) 43. (b) Reg. v. Fretwell, 33 L. J. (M. C). 128; L. & C. 443.

(c) Reg. v. Ward, L. R. 1 C. C. R. 356.

sult of the slewing round of the punt. The night was light, and the boat visible fifty yards off. No birds were in view. The two men had always been on good terms, and the gun was fired, apparently, with the intention of frightening the prosecutor away rather than that of hurting him. The prisoner was indicted for the felony of wounding, with intent to do grievous bodily harm, but was found guilty of the misdemeanor of unlawfully wounding, within the above section :-Held, that there was proof of malice which justified the conviction of the prisoner. (a)

The Con. Stats. Can. c. 91 s. 37, applied only to common assaults. (b)

No words of provocation whatever can amount to an assault. (c) To constitute such an assault, as will justify moderate and reasonable violence in self-defence, there must be an attempt or offer with force and violence to do a corporal hurt to another, as by striking him with or without a weapon, or presenting a gun at him, at such a distance to which the gun will carry, or pointing a pitch fork at him, standing within reach of it, or by holding up one's fist at him, or by drawing a sword, and waving it in a menacing manner. (d)

Where some thirty persons, armed and riotously assembled in front of the plaintiff's house, and apparently in the act of breaking into it, threatened to break into it, and assault, tar, feather and ride the plaintiff on a rail, it was held that though the plaintiff believed they were going to break into his house for this purpose, yet he could not justify shooting at them with a pistol, without warning them to desist and depart, but such request to depart

(a) Reg. v. Ward, L. R. 1 C. C. R. 356.

(b) Re McKinnor, 2 U. C. L. J. N. S. 328, per A. Wilson, J. (c) The Toronto . V. A. R. 170.

(d) Ib. 178-9.

would not have been necessary, perhaps, if the aggressors had been actually advancing upon the plaintiff, in the attitude of assaulting him, and still less if any of them had actually struck him. (a)

The law is properly careful to exact that people shall not on the mere apprehension of violence, which is not immediately threatened, resort to desperate means of defence and shed blood without necessity, though there may be considerable provocation and some shew of violence, and, generally speaking, it must be left to the jury to ascertain as a question of fact whether the means of resistance adopted were justified by the nature of the attack. (b) If more force and violence be used than necessary to expel a party from a house, after he has been requested, and refused to leave, it cannot be justified, (c) Although a party may lawfully take hold of one who declines to leave his house and put him out, yet he has no right to beat him cruelly, not in order to make him go out, but to punish him for not going out. (d)

Upon an indictment for assaulting a bailiff of a county court, in the execution of his duty, the production of a county court warrant for the apprehension of the prisoner is sufficient justification of the act of the bailiff, in apprehending the prisoner, without proof of the previous proceedings authorizing the warrant. (e)

Moderate correction of a servant or scholar, by his master, is not an assault. A master has not by law a right to use force in the correction of any servant, but an apprentice; the moderate correction of a servant, who is an infant, may be justified. The beating of a servant of full age cannot be justified, and will form a sufficient

(a) Spires v. Barrick, 14 U. C. Q. B. 424, per Robinson, C. J.

(b) Ib. 424, per Robinson, C. J.

(c) See Glass v. O'Grady, 17 U. C. C. P. 233.

(d) Ib. 236, per J. Wilson, J; Davis v. Lennon, 8 U. C. Q. B. 599.

(e) Reg. v. Davis, 8 U. C. L. J. 140; L. & C. 64; 30 L. J. (M. C.) 159.

cause or excuse for departure, or for discharge from service by a master, on complaint. Wounding, kicking and tearing a person's clothes do not fall within the scope of moderate correction. (a) School-masters have a right of moderate chastisement against disobedient and refractory scholars; but it is a right which can only be exercised when necessary for the maintenance of school discipline and the interests of education, and to a degree proportioned to the nature of the offence committed. Any chastisement exceeding this limit, and springing from motives of caprice, anger or bad temper, constitutes an offence punishable like ordinary delicts. (b)

On an indictment charging an aggravated assault, or an offence of a higher nature than an assault, but nevertheless including it, the prisoner may be found guilty of a common assault, for it is not necessary that matter of aggravation stated in the indictment should be proved and, if not proved, the prisoner may be found guilty of the offence without the circumstances of aggravation. (c) An indictment charged the prisoner, in the first count with "unlawfully, and maliciously wounding," and in the second count with unlawfully and malicously inflicting grievous bodily harm, the jury having found the prisoner guilty of an assault:-Held that the conviction was right, as the offences charged were misdemeanors, and each of them necessarily included the lesser misdemeanor of an assault. (d) So a person, indicted for inflicting grievous bodily harm and actual bodily harm, may be convicted of a common assault. (e) A charge of assault and beating would be sustained by

(a) Mitchell v. Defries, 2 U. C. Q. B. 430, per M'Lean, J.

(b) Brisson v. Lafontaine, & L. C. J. 173.

(c) Reg. v. Taylor, L. R. 1 C. C. R. 194; 38 L. J. (M. C.) 106.

(d) Ib.

(e) Reg. v. Oliver, 8 U. C. L. J. 55; Bell, 287; 30 L. J. (M. C.) 12; Reg. v. Yeadon, L. & C. 81; 31 L. J. (M. C.) 70.

proof of an aggravated assault, as the aggravation is merely matter of evidence. (a)

This offence is a misdemeanor (b) and is so punishable. The punishment usually inflicted is fine, imprisonment and sureties to keep the peace. (c) The Court of Quarter Sessions has a general power to fine and imprison in case of assault. (d)

A charge of assaulting a bailiff in the execution of his duty, being a misdemeanor, is triable at the Sessions. (e)

An assault may, in certain cases, amount to a capital felony, when, it is apprehended, it could not be tried at the Sessions. An assault may be accompanied by violence from which death ensues, and then the offence would be either murder or manslaughter. Or an assault may be accompanied with a violation of the person of a woman against her will, in which case it would be a rape, or, though the purpose was not effected, the circumstances might be such as to leave no doubt of an assault with intent to commit a rape, therefore an assault may amount to a capital felony, or a felony, or misdemeanor, according to the circumstances with which it is accompanied. (ƒ)

On motion to quash a conviction for an assault made by two Justices of the County of Norfolk, it was held that, stating the offence to have been committed at the defendant's place in the Township of Townsend was sufficient, for the Con. Stats. U. C, c. 3, s. 1, ss. 37, shewed that township to be within the County of Norfolk, of which county the convicting Magistrates were two of the Justices, and being a public statute, the Court would notice it judici

(a) Re M'Kinnon, 2 U. C. L. J. N. S. 329, per A. Wilson, J.

(b) See Reg. v. Taylor, L. R. 1 C. C. R. 194.

(c) Ovens v. Taylor, 19 U. C. C. P. 52, per Hagarty, J.

(d) Ib. 49.

(e) Reg. v. Caisse, 8 L. C. J. 281.

(f) M'Curdy v. Swift, 17 U. C. C. P. 139, per A. Wilson, J