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1853.

June 1.

The plaintiff being in the defendant's workshop, and

when desired, the defendant

and his servants

READ V. COKER.

ASSAULT and false imprisonment. The first count charged an assault committed by the defendant on the refusing to quit plaintiff on the 24th of March, 1853, by thrusting him out of a certain workshop; the second count charged a similar assault on the 22nd of April, and an imprisonment of the plaintiff without reasonable cause; the third count charged a second assault and false imprisonment on the same 22nd of April; and the fourth count an assault and false imprisonment on an unfounded charge of felony, on the 27th of April.

surrounded him, and, tucking up their sleeves and aprons, threatened to break his neck if he did not go out; whereupon the plaintiff, apprehensive of violence, departed :Held, an assault.

In order to entitle a party to notice of ac

tion for a thing

done "in pursuance" or "in the execution," of an act of

parliament, it is

not necessary

Plea, not guilty "by statute," upon which issue was joined.

The cause was tried before Talfourd, J., at the first sitting in London in Easter Term last. The facts which appeared in evidence were as follows:-The plaintiff was a paper-stainer, carrying on business in the City Road, upon premises which he rented of one Molineux, at a rent of 88. per week. In January, 1852, the rent being sixteen weeks in arrear, the landlord employed one Holliwell to distrain for it. Holliwell accordingly seized certain presses, lathes, and other trade fixtures, and, at be cognisant of the plaintiff's request, advanced him 167. upon the security of the goods, for the purpose of paying off the rent. The plaintiff, being unable to redeem his goods, on the 23rd of February applied to the defendant for assistance. acting strictly The goods were thereupon sold to the defendant by Hol

that he should

at the time of doing the act

the existence of

the statute giving him such protection, or that he should be

in the execu

tion of it.

liwell, on the part of Read, for 25l. 11s. 6d.; and it was agreed between the plaintiff and the defendant, that the business should be carried on for their mutual benefit, the defendant paying the rent of the premises and other

outgoings, and allowing the plaintiff a certain sum weekly.

1853.

READ

v.

COKER.

As to the first

The defendant becoming dissatisfied with the speculation, dismissed the plaintiff on the 22nd of March. On the 24th, the plaintiff came to the premises, and refusing count. to leave when ordered by the defendant, the latter collected together some of his workmen, who mustered round the plaintiff, tucking up their sleeves and aprons, and threatened to break his neck if he did not go out; and, fearing that the men would strike him if he did not do so, the plaintiff went out.

This was the assault com

Upon this evidence, the

plained of in the first count.
learned judge left it to the jury to say, whether there was
an intention on the part of the defendant to assault the
plaintiff, and whether the plaintiff was apprehensive of
personal violence if he did not retire. The jury found
for the plaintiff on this count, damages one farthing.

As to the second count, the evidence was, that the As to the seplaintiff went to the premises again on the morning of cond count. the 22nd of April, and began pulling to pieces a press, when the defendant's workmen, in the absence of the defendant himself, caused him to be apprehended. Upon this count, the learned judge directed the jury to find for the defendant.

count.

As to the third count, it was proved that, in the after- As to the third noon of the same 22nd of April, the plaintiff went again to the premises, and began to unscrew a lathe, when the defendant sent for a constable, and caused the plaintiff to be taken before a magistrate upon a charge of wilful and malicious trespass, when the magistrate, finding the case involved a disputed claim to the property,—the defendant insisting that the machinery had been absolutely sold to him on the 23rd of February, and the plaintiff that he was jointly interested with the defendant as a partner in it,-declined to entertain the charge.

As to the fourth count, the evidence was, that, on the As to the fourth

count.

1853.

READ

v.

COKER.

Direction to the jury as to the third and fourth counts.

morning of the 27th of April, the plaintiff came to the premises with a van, accompanied by three or four men, broke open the door, and commenced removing the goods, and in the afternoon the plaintiff caused him to be taken into custody, and carried before a magistrate, on a charge of stealing in a shop, which the magistrate dismissed, upon the same ground as before.

On the part of the defendant, it was contended, that, the acts done by him being done under and in pursuance of the statutes 7 & 8 G. 4, c. 29, and 7 & 8 G. 4, c. 30, he was entitled to a notice of action under the 75th and 41st sections of those acts respectively. But the learned judge overruled the objection, remarking that the defendant could not be said to have been acting in pursuance of acts of parliament of the existence of which there was no evidence to shew that he had the slightest cognizance.

His lordship left it to the jury, as to the third count, to say whether the defendant really and bonâ fide believed that the plaintiff was committing a malicious trespass when he gave him into custody; to which the jury answered that they thought the defendant believed the plaintiff was committing a malicious trespass, but that the latter was in reality acting in the assertion of a claim of right. And, as to the fourth count, he left it to them to say whether the plaintiff was committing a felony on the 27th of April, when he was given into custody, and whether the defendant, when he gave the plaintiff into custody, bonâ fide acted under a belief that the plaintiff had committed a felony: the first of these questions the jury answered in the negative, and the last in the affirmative. The learned judge then asked them whether they thought there was any partnership between the plaintiff and defendant in the machinery: the jury found that there was. Upon the third count, the damages were assessed at 207., and, upon the fourth, at 57.

1853.

READ

v.

COKER.

count.

Byles, Serjt., on a former day in this term, in pursuance of leave reserved to him at the trial, moved for a rule nisi to enter the verdict for the defendant upon the first, third, and fourth issues, or for a new trial on the ground of misdirection, and that the verdict was not warranted by the evidence. That which was proved as As to the first to the first count, clearly did not amount to an assault. [Jervis, C. J. It was as much an assault as a sheriff's officer being in a room with a man against whom he has a writ, and saying to him "You are my prisoner," is an arrest.] To constitute an assault, there must be something more than a threat of violence. An assault is thus defined in Buller's Nisi Prius, p. 15,-"An assault is an attempt or offer, by force or violence, to do a corporal hurt to another, as, by pointing a pitchfork at him, when standing within reach; presenting a gun at him [within shooting distance]; drawing a sword, and waving it in a menacing manner, &c., The Queen v. Ingram, 1 Salk. 384. But no words can amount to an assault, though perhaps they may in some cases serve to explain a doubtful action,-1 Hawk. P. C. 133; as, if a man were to lay his hand upon his sword, and say, 'If it were not assize time, he would not take such language:' the words would prevent the action from being construed to be an assault, because they shew he had no intent to do him any coporal hurt at that time: Tuberville v. Savage, 1 Mod. 3." So, in Selwyn's Nisi Prius, 11th edit. 26, it is said,-"An assault is an attempt, with force or violence, to do a corporal injury to another, as, by holding up a fist in a menacing manner; striking at another with a cane or stick, though the party striking may miss his aim; drawing a sword or bayonet; throwing a bottle or glass with intent to wound or strike; presenting a gun at a person who is within the distance to which the gun will carry; pointing a pitchfork at a person who is within reach,-Genner

1853.

READ

v.

COKER.

As to the third and fourth

counts.

v. Sparks, 6 Mod. 173, 1 Salk. 79,-or by any other similar act, accompanied with such circumstances as denote at the time an intention (coupled with a present ability),-see Stephens v. Myers, 4 C. & P. 349,-of using actual violence, against the person of another." So, in 3 Bl. Comm. 120, an assault is said to be "an attempt or offer to beat another, without touching him; as, if one lifts up his cane or his fist, in a threatening manner, at another; or strikes at him but misses him; this is an assault, insultus, which Finch (L. 202) describes to be 'an unlawful setting upon one's person."" [Jervis, C. J. If a man comes into a room, and lays his cane on the table, and says to another, 'If you don't go out, I will knock you on the head,' would not that be an assault?] Clearly not: it is a mere threat, unaccompanied by any gesture or action towards carrying it into effect. The direction of the learned judge as to this point was erroneous. He should have told the jury, that, to constitute an assault, there must be an attempt, coupled with a present ability to do personal violence to the party; instead of leaving it to them, as he did, to say what the plaintiff thought, and not what they (the jury) thought was the defendant's intention. There must be some act done denoting a present ability and an intention to assault.

As to the third and fourth counts, the defendant was clearly within the protection of the 7 & 8 G. 4, c. 29, s. 75, and c. 30, s. 41, if he had a mere general knowledge that there was a law entitling him to arrest the plaintiff. [Jervis, C. J. The leading case upon the subject in modern times, is, Hughes v. Buckland, 15 M. & W. 346. There, the defendants, servants of Colonel Pennant, apprehended the plaintiff while fishing in the night-time near the mouth of the river Ogwen, in Carnarvonshire, in which river Colonel Pennant had a several fishery. In an action of trespass for this arrest,

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