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such as a release, payment, or performance. And sometimes, where assumpsit has been brought upon the original cause of action, either party has been permitted to show the submission and award under the general issue, as evidence of a statement of accounts and an admission of the balance due, or of a mutual adjustment of the amount in controversy.- (a)

1 Stephen on Pleading, pp. 179–182 (Am. ed. 1824) ; Taylor v. Coryell, 12 S. & R. 243, 251 ; Allen v. Watson, 16 Johns. 203.

2 Keene v. Batshore, 1 Esp. 194; Kingston v. Phelps, Peake's Cas. 228.

(a) Arbitrators are not bound to follow a speedy determination of the controversy, the strict rules of law, or even what they a submission to arbitration enıbraces the deem to be such, unless it be a condition power to decide questions of law, unless of the submission that they shall do so; that presumption is rebutted by some exand when there is no such condition ception or limitation in the submission. courts will not refuse to enforce an award, We are not aware that there is anything on the ground that the arbitrators have contrary to the policy of the law, in pernot followed strictly legal rules in hearing mitting parties thus to substitute a domesand deciding a case, unless it be shown tic forum for the courts of law, for any that thereby manifest injustice has been good reason, satisfactory to theniselves; and done. Remelee v. Hall, 31 Vt. 583. having done so, there is no hardship in “We think the more modern cases adopt holding them bound by the result.” Shaw, the principle, that, inasmuch as a judicial C. J., Boston Water Power Co. v. Gray, 6 decision upon a question of right, by Met. (Mass.) 167. See Estes v. Mansfield, whatever forum it is made, must almost 6 Allen (Mass.), 69; and Haigh v. Haigh, 8 necessarily involve an application of cer- Jur. N. S. 983. See also Horton v. Sayer, 5 tain rules of law to a particular statement Jur. N. s. 989, as to agreements of parties, of facts, and as the great purpose of a sub- that all disputes that may arise between mission to arbitration usually is, to obtain them shall be referred to arbitration.



§ 82. Definition. An assault is defined to be an inchoate vio lence to the person of another, with the present means of carrying the intent into effect. Mere threats alone do not constitute the offence: there must be proof of violence actually offered. Thus, if one ride after another, and oblige him to run to a place of security to avoid being injured ; (a) or throw at him any missile capable of doing hurt with intent to wound, whether it hit him or not;4 or level a loaded gun, or brandish any other weapon in a menacing manner, within such a distance as that harm might ensue; 5 or advance, in a threatening manner, to strike the plaintiff, so that the blow would have reached him in a few seconds if the defendant had not been stopped ; & in all these cases the act is an assault. So, if he violently attack and strike with a club the horse which is harnessed to a carriage, in which the plaintiff is riding. But to stand in another's way and passively to obstruct his lawful progress, as an inanimate object would, though done by design, is no assault.

$ 83. Intent to harm. The intention to do harm is of the essence of an assault ; 9 and this intent is to be collected by the jury from the circumstances of the case. Therefore if the act of the defendant was merely an interference to prevent an unlawful injury, such as to separate two combatants ; 10 or if, at the time of

day of


11 Steph. N. P. 208; Finch's Law, 202 ; Stephens v. Myers, 4 C. & P. 349. And see also post, vol. iii. § 59.

2 Stephens v. Myers, 4 C. & P. 349 ; Tuberville v. Savage, 1 Mod. 3. The dec. laration for an assault and battery is thus : “In a plea of trespass ; for that the said (defendant) on the

in and upon the plaintiff, with force and arms, made an assault, and him, the said plaintiff, then and there did beat, wound, and ill treat” (here may be stated any special matter of aggravation}, "and other wrongs to the plaintiff

, then and there did against the peace. To the damage," &c. The material allegations in an indictment are the same as in a civil action. 3 Morton v. Shoppee, 3 C. & P. 373.

4 2 Hawk. P. C. b. 1, c. 62, § 1. 6 Ibid. If the gun is not loaded, it is no assault. Blake v: Barnard, 9 C. & P. 626 ; Reg. v. James, 1 C. & K. 530.

Stephens v. Myers, 4 C. & P. 349, per Tindal, C. J. ? De Marentille v. Oliver, 1 Penning. 380, per Pennington, J. Taking indecent liberties with a female pupil, Rex v. Nichol, Russ. & Ry. 130; or with a female patient, Rex v. Rosinski, Ry. & M. 19; though unresisted, is an assault.

8 Jones v. Wylie, 1 C. & K. 257. 9 But as to battery, see infra, § 94. 10 Griffin v. Parsons, 1 Selw. N. P. 25, 26.

(a) See State v. Martin, 85 N. C. 508.

menacing violence, he used words showing that it was not his intention to do it at that time, as in the familiar example of one's laying his hand on his sword, and saying that if it were not assizetime he would not take such language ;1 or if, being unlawfully set upon by another, he puts himself in a posture of defence by brandishing his fists or a weapon, - it is no assault. So, where one threw a stick, which struck the plaintiff, but it did not appear for what purpose it was thrown, it was presumed that it was thrown for a proper purpose, and that the striking of the plaintiff was merely an accident.3

§ 84. Battery. A battery is the actual infliction of violence on the person. This averment will be proved by evidence of any unlawful touching of the person of the plaintiff, whether by the defendant himself, or by any substance put in motion by him. The degree of violence is not regarded in the law : 4 it is only considered by the jury in assessing the damages in a civil action, or by the judge in passing sentence upon indictment. (a) Thus, any touching of the person in an angry, revengeful, rude, or insolent manner;6 spitting upon the person ; 6 jostling him out of the way ;? pushing another against him ;8 throwing a squib or any missile or water upon him ;9 striking the horse he is riding, whereby he is thrown ; 10 taking hold of his clothes in an angry or insolent manner, to detain him," — is a battery. So, striking the skirt of his coat or the cane in his hand,12 is a battery; for anything attached to the person partakes of its inviolability.13

1 Bull. N. P. 15 ; Tuberville v. Savage, 1 Mod. 3 ; 2 Keb. 545 ; Commonwealth v. Eyre, 1 S. & R. 347.

? Moriarty v. Brooks, 6 C. & P. 684. 8 Alderson v. Waistell, 1 C. & K. 358.

4 Leame v. Bray, 3 East, 602. Cutting off the hair of a parish pauper by the parish officers, against her will, was held a battery. Ford v. Skinner, 4 C. & P. 239.

5 2 Hawk, P. c. b. 1, c. 62, & 2; 4 BI. Comm. 120.
6 1 East, P. C. 406 ; Reg. v. Cotesworth, 6 Mod. 172.
7 Bull. N. P. 16.

8 Cole v. Turner, 6 Mod. 149. 9 Scott v. Shepherd, 2 W. Bl. 892; s. c. 3 Wils. 403 ; Pursell v. Horn, 8 Ad. & El. 605 ; Simpson v. Morris, 4 Taunt. 821.

10 Dodwell v. Burford, 1 Mod. 24.
11 United States v. Ortega, 4 Wash. 534 ; 1 Baldw. 600.

12 Respublica v. De Longchamps, 1 Dall. 111, 114, per McKean, C. J. ; The State 0. Davis, i Hill (S. C.), 46.

18 Ibid.

(a) In order to explain to the jury the the person who took it, and he testifies nature of the battery and its effect upon that it gives a correct representation of the plaintiff, a photograph of the plain. what it purports to represent, and was tiff's back, showing the marks of the stripes taken soon after the battery complained inflicted by the defendant, is competent of. Reddin v. Gates, 52 lowa, 210. evidence if the photograph is identified by

$ 85. Negligence. Unlawful intent.

Unlawful intent. And here also the plaintiff must come prepared with evidence to show, either that the intention was unlawful, or that the defendant was in fault ; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable. Thus, if one intend to do a lawful act, as to assist a drunken man, or prevent him from going without help, and in so doing a hurt ensue, it is no battery.? (a) So, if a horse by a sudden fright runs away with his rider, not being accustomed so to do, and runs against a man;3 (6) or if a soldier, in discharging his musket by lawful military command, unavoidably hurts another, 4 — it is no battery ; and in such cases the defence may be made under the general issue. But, to make out a defence under this plea, it must be shown that the defendant was free from any blame, and that the accident resulted entirely from a superior agency. A defence which admits that the accident resulted from an act of the defendant must be specially pleaded. Thus, if one of two persons fighting unintentionally strikes a third ; 7 or if one uncocks a gun without elevating the muzzle, or other due precaution, and it accidentally goes off and hurts a looker-on; 8 or if he drives a horse too spirited, or pulls the wrong rein, or uses a defective harness, and the horse taking fright injures another," (C) – he is liable for the battery. But if the injury happened by unavoidable accident, in the course of an amicable wrestling-match, or other lawful athletic sport, if it be

1 1 Bing. 213. per Dallas, C. J. ; 1 Com. Dig. 129, tit. Battery, A. ; 1 Chitty on Pl. 120. See infra, $ 94, and tit. Damages, SS 269, 271.

2 Bull. N. P. 16. 8 Gibbons v. Pepper, 4 Mod. 404; Bull. N. P. 16. 4 Weaver v. Ward, Hob. 134. 5 4 Mod. 405.

* Hall r. Fearnley, 3 Ad. & El. n. s. 919. See infra, $$ 94, 622, 625 ; 1 Chitty, Pl. 437 ; Knapp v. Salsbury, 2 Camp. 500 ; Boss v. Litton, 5 C. & P. 407.

? James v. Campbell, 5 C. & P. 372.

8 Underwood v. Hewson, Bull. N. P. 16 ; s. c. 1 Stra. 596. So, if he negligently discharges a gun. Dickenson v. Watson, T. Jones, 205 ; Taylor v. Rainbow, 2 Hen. & Munf. 423 ; Blin v. Campbell, 14 Johns. 432.

9 Wakeman v. Robinson, 1 Bing. 213.

(a) In Johnson v. McConnel, 15 Hun the person assaulted, it did not constitute (N. Y.), 293, where it was proved that the an actionable assault, was erroneous. plaintiff, while intoxicated, engaged in a (6) Brown v. Collins, 53 N. H. 442. scuffle with a third party, and the defend- This case has some observations worthy ant interfered to keep the plaintiff quiet, of note on the leading case upon this point and in the subsequent scuffle the plaintiff of Fletcher v. Rylands, L. Ř. 3 H. of L. fell and broke his leg, it was held that an 330. See also Holmes v. Mather, 23 W. instruction of such a nature that the jury R. Exch. 869; s. C. 16 Am. Rep. 384; might be led by it to believe that the post, $ 94. assault must be made in anger, and that (c) Kennedy v. Way, Sup. Ct. Pa., 13 if done in entire good nature, and from Law Reporter, 184. good motives, though against the will of

not dangerous, it may be justified.' (a) If it were done in a boxing-match, or fight, though by consent, it is an unjustifiable battery;? (6) the proof of consent being admissible only in mitigation of damages.3

§ 86. Time and place not essential. Neither the time nor the place, laid in the declaration, are ordinarily material to be proved. Evidence of the trespass committed previous to the commencement of the action is sufficient ; 4 and it may be proved in any place, the action being personal and transitory. But if the declaration contain only one count, and the plaintiff prove one assault, he cannot afterwards waive that, and prove another. Nor can he give evidence of a greater number of assaults than are laid in the declaration. If the action is against several for a joint trespass, the plaintiff, having proved a trespass against some only, cannot afterwards be permitted to prove a trespass done at another time, in which all or any others were concerned ; but he is bound, by the election which he has made, to charge some only ; for, otherwise, some might be charged for a trespass in which they had no concern. So, if he prove a trespass against all the defendants, he cannot afterwards elect to go upon a separate trespass against one. And if he prove a trespass against some, he is bound to elect, before the defendants open their case, against which defendants he will proceed.10

$ 87. Sufficient to prove assault. Nor is it necessary to prove an actual battery, though it must be alleged in the declaration; for, upon proof of an assault only, the plaintiff will be entitled to recover. 11

§ 88. Consequential injuries. If the plaintiff would recover for consequential injuries, they must be specially laid in the declara

1 5 Com. Dig. 795, tit. Pleader, 3 M, 18 ; Foster, Cr. L. 259, 260.
2 Boulter v. Clark, Bull. N. P. 16 ; Stout v. Wren, 1 Hawks, 420.
8 Logan v. Austin, 1 Stew. 476. See infra, tit. Damages.
4 1 Saund. 24, n. (1), by Williams ; Bull. N. P. 86; Brown. 233.
5 Mostyn v. Fabrigas, Cowp. 161.
6 Stante v. Pricket, i Campb. 473. 7 Gillon v. Wilson, 3 B. Monr. 217.

& Sedley v. Sutherland, 3 Esp. 202 ; Hitchen v. Teale, 2 M. & Rob. 30. But see Roper v. Harper, 5 Scott, 250.

Tait v. Harris, 1 M. & Rob. 282, per Ld. Lyndhurst, Ch. B. In Hitchen v. Teale, 2 M. & Rob. 30, Patteson, J., said he could not very well understand the prin. ciple on which this decision was founded.

10 Howard v. Newton, 2 M. & Rob. 509.

11 Bro. Abr. Tresp. pl. 40; 40 E. III. 40 ; 1 Steph. N. P. 213; Lewis v. Hoover, 3 Blackf. 407.

(a) Fitzgerald v. Cavin, 110 Mass. 153.

(6) Adams v. Waggoner, 33 Ind. 531.

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