under consideration, we are of opinion that it ought not to be engrafted into our jurisprudence.

We are strengthened in this conclusion by the weight of American authority, and by the fact that in some of the States, where the rule had been established by decisions of the courts, it has been abrogated by legislative enactments. (Pettingill v. Rideout, 6 N. H. 454; Cross v. Guthery, 2 Root, 90; Piscataqua Bank v. Turnley, 1 Miles, 312; Foster v. Commonwealth, 8 W. & S. 77; Patton v. Freeman, Coxe, 113; Hepburn's Case, 3 Bland, 114; Allison v. Farmer's Bank of Virginia, 6 Rand. 223; White v. Fort, 3 Hawks, 251; Robinson v. Culp, 1 Const. Rep. 231; Story v. Hammond, 4 Ohio, 376; Ballew v. Alexander, 6 Humph. 433; Blassingame v. Glaves, 6 B. Monr. 38. Rev. Sts. of N. Y. Part 3, c. 4, § 2; St. of Maine of 1844, c. 102.)

TORT, under the Gen. Sts. c. 88, § 59, to recover double the amount of damage sustained from the bite of a dog.

At the trial in the Superior Court, before Aldrich, J., it appeared that the plaintiff was bitten and injured by the defendant's dog at Pelham, in the State of New Hampshire, where the plaintiff lived with his father and mother; that the defendant was a resident of Dracut, in this Commonwealth, and had a place of business in Lowell, and kept his dog at Dracut and at his place of business in Lowell; that the day the injuries complained of were done the defendant's dog strayed away from his owner into New Hampshire, and was seen several times in the neighborhood of the plaintiff's residence; that the next day the plaintiff's father received the dog and carried him to the defendant at his place of business in Lowell. Upon this state of facts, the defendant asked the judge to rule that the action could not be maintained, which the judge declined to do. The jury returned

a verdict for the plaintiff, and the defendant alleged exceptions.

C. A. F. Swan for the defendant.

G. Stevens and W. H. Anderson for the plaintiff.

GRAY, Ch. J. In order to maintain an action of tort, founded upon an injury to person or property, and not upon a breach of contract, the act which is the cause of the injury and the foundation of the action must at least be actionable or punishable by the law of the place in which it is done, if not also by the law of the place in which redress is sought.. (Smith v. Condry, 1 How. 28; S. C. 17 Pet. 20; The China, 7 Wall. 53, 64; Blad's Case, 3 Swanst. 603; Blad v. Bamfield, ib. 604; General Steam Navigation Co. v. Guillou, 11 M. & W. 877; Phillips v. Eyre, L. R. 4 Q. B. 225, 239, and L. R. 6 Q. B. 1; The Halley, L. R. 2 Adm. 3, and L. R. 2 P. C. 193; Wood v. Wood, 1 Blackf. 71; Wall v. Hoskins, 5 Ired. 177; Mahler v. Norwich & New York Transportation Co., 35 N. Y. 352; Needham v. Grand Trunk Railway, 38 Vt. 294; Richardson

v. New York Central Railroad, 98 Mass. 85.)

In the case at bar, the injury sued for was done to the plaintiff in New Hampshire by a dog owned and kept by the defendant in Massachusetts. Such an action could not be maintained at common law, without proof that the defendant knew that his dog was accustomed to attack and bite mankind. (Popplewell v. Pierce, 10 Cush. 509; Pressey v. Wirth, 3 Allen, 191.) No evidence of such knowledge, or of the law of New Hampshire, was introduced at the trial. Nor is it contended that the defendant would be liable to any action or indictment by the laws of that State.

The plaintiff relies upon the statute of this Commonwealth, which provides that "every owner or keeper of a dog shall forfeit to any person injured by it double the amount of the damage sustained by him, to be recovered in an action of tort." (Gen. Sts. c. 88, § 59.) This statute is not a penal, but a remedial statute, giving all the damages to the person injured. (Mitchell v. Clapp, 12 Cush. 278.) It does not declare the owning or keeping of a dog to be unlawful, but that if the dog injures

another person, the owner or keeper shall be liable, without regard to the question whether he had or had not a license to keep the dog. The wrong done to the person injured consists not in the act of the master in owning or keeping, or neglecting to restrain, the dog, but in the act of the dog for which the master is responsible.

The defendant having done no wrongful act in this Commonwealth, and the injury for which the plaintiff seeks to recover damages having taken place in New Hampshire, and not being the subject of action or indictment by the laws of that State, this action cannot be maintained.

Exception sustained.

Воок II.

CHAPTER VI.

ASSAULT AND BATTERY.

CLARK V. DOWNING.

(55 Vt. 259. - 1882.)

A. M. Dickey and G. A. Dickey for plaintiff.

R. M. Harvey and J. R. Darling for defendant.

ROYCE, Ch. J. (Minor points omitted.) The only other exception was to the refusal of the court to charge as requested. The evidence referred to in the exceptions, and upon which the request was predicated, and the question of what in law constitutes an assault, have to be considered in deciding whether the request should have been complied with or not. It appears that the evidence as to what transpired at the time and upon the occasion when it was claimed that the assault was committed was conflicting, and the request was based upon the supposition that the jury might find the fact as the plaintiff's evidence tended to show.

Admitting that the jury might so find, did the striking of the plaintiff's horse constitute an assault upon the plaintiff ! It is not necessary to constitute an assault that any actual violence be done to the person. If the party threatening the assault have the ability, means and apparent intention to carry his threat into execution, it may in law constitute an assault. The disposition, accompanied with a present ability to use vio

lence, has been held to amount to an assault.

Where violence

is used it is not indispensably necessary that it should be to the person. It was decided in Hopper v. Reeve, 7 Taunt. 698, that the upsetting of a chair or carriage in which a person was sitting was an assault; in Morton v. Shoppe, 3 C. & P. 373, that riding after a person at a quick pace and compelling him to run into his garden to avoid being beaten was an assault; that the striking of the horse upon which the wife of the plaintiff was riding was an assault upon the wife. (1 Stephen N. P. 210.)

An assault is defined in Hays v. People, 1 Hill, 351, to be an attempt with force or violence to do a corporal injury to another. The striking of the plaintiff's horse in the manner that his evidence tended to show would probably result in a corporal injury to him; hence the request should have been complied with.

The case should have been submitted to the jury for them to find whether the striking was as the plaintiff claimed it to have been, or in the manner and for the reasons indicated in the defendant's plea.

Judgment reversed, and cause remanded.

KEEP V. QUALLMAN.

(68 Wis. 451.-1887.)

THE parties are neighbors, but not friends. On a certain Sunday afternoon they met in a public highway. Several other persons were present. The testimony tends to show that the defendant accosted the plaintiff by asking him, “What is the reason you are slandering me around all the time?" that immediately the plaintiff put his hand in his pocket, and was about taking it out again when the defendant struck him on the head with a cane twice, knocking him down. He got up, and, as the defendant testifies, attacked the latter, whereupon they fought with their fists until plaintiff was vanquished and retreated. The defendant also testifies that he had just then