It is not necessary that the defendant should come in contact with the plaintiff's body. It is sufficient if the blow or touch come upon the plaintiff's clothing. For example: The defendant, in anger or rudeness, knocks off the plaintiff's hat. This is enough to constitute a battery1.

Contact.

Indeed it is not necessary that the plaintiff's body or clothing be touched. To knock a thing out of the plaintiff's hands, such as a staff or cane, would clearly be a battery; and the same would be true of the striking a thing upon which he is resting for support, at least if this cause to the plaintiff a fall or concussion. For example: The defendant strikes or kicks a horse upon which the plaintiff is riding, or a horse hitched to a waggon in which the plaintiff is riding. This is a battery?. Again: The defendant drives a vehicle against the plaintiff's carriage, throwing the plaintiff from his seat. This also is a battery. Again: The defendant runs against and overturns a chair in which the plaintiff is sitting. This too is a battery1.

What has already been said shows also that it is not necessary to constitute a battery that the touch or blow or other Battery from contact should come directly from the defendant's a distance. person. Indeed a battery may be committed at any distance between the parties if only some violence be done to the plaintiff's person. The hitting one with a stone or other missile is no less a battery than the striking one with the fist. It is not necessary even that the object cast should do physical harm; the battery consists in the unpermitted contact, not in the damage. For example: The defendant spits or throws water upon the plaintiff. This is a battery, though no harm be done".

In earlier times it appears to have been considered that a

1 Addison gives this as an example of a battery, without citing authority; but there can be no doubt of its correctness. Addison, Torts, 571 (4th ed.).

2 Clark v. Downing, 55 Vermont, 259; Dodwell v. Burford, 1 Mod. 24. Probably it would not be necessary that the plaintiff should be thrown from the horse or thrown against anything.

3 Hopper v. Reeve, 7 Taunt. 698.

4 Id. It was of course held immaterial in this case whether the chair or carriage belonged to the plaintiff or not.

5 See Regina v. Cotesworth, 6 Mod. 172; Pursell v. Horn, 8 Ad. & E. 602.

Whether negligence can constitute a battery.

battery might be committed merely by negligence. For example: The defendant, a soldier, handles his arms so carelessly in drilling as to hit the plaintiff with them. This is deemed a battery, though the act was not intended1. The above-mentioned case of the running into the plaintiff's carriage might be another example. But there is reason to doubt whether cases short of actual or virtual intention, or recklessness, would now be actionable without proof of damage; which makes the distinction between cases of assault or battery and bodily injury by negligence. A rowdy might terrorize a whole neighbourhood if damage had to be proved for an assault or a battery, a ground of liability having no application to negligence.

Plaintiff not

But a person may be guilty of a battery where his act is directly caused by another person, provided the defendant was at the time committing a crime or a trespass. For the person in- example: The defendant, when about to discharge a gun unlawfully at a third person, is jostled just as the gun is fired, and the direction of the shot is changed so as to cause the plaintiff to be hit. This is a battery3.

tended.

Blow received accidentally by a person defending himself.

Indeed in former times every blow which resulted from an intended act seems to have been looked upon as a battery, in accordance with the general primitive idea, that if a man suffered harm at the hands of another, the latter must justify if he could. The modern authorities strongly tend to a different view. There is no battery, according to the modern view, unless the blow itself was intentional or reckless, or unless the defendant was otherwise conducting himself as a trespasser at the time. No

1 Weaver v. Ward, Hob. 134. See Holmes v. Mather, L. R. 10 Ex. 261. 2 See also Hall v. Fearnley, 3 Q. B. 919.

3 See James v. Campbell, 5 Car. & P. 372, where the defendant, in fighting with another, hit the plaintiff with his fist.

4 See Year Book 21 Hen. 7, 28; Lambert v. Bussey, T. Raym. 421; Weaver v. Ward, supra. Also Lex Aquilia, infra.

5 Coward v. Baddeley, 4 H. & N. 478, Martin, B., infra; Holmes v. Mather, L. R. 10 Ex. 261; Wakeman v. Robinson, 1 Bing. 213; Hall v. Fearnley, 3 Q. B. 919; Brown v. Kendall, 6 Cushing (Mass.), 292; Vincent v. Stinehour, 7 Vermont, 62; Nitroglycerine Case, 15 Wall. 524. See Spade v. Lynn R. Co., 172 Mass. 488; s. c. 168 Mass. 285. See also Pollock, Torts, p. 134, 6th ed. The old cases have fairly ceased to be law, both in England and in America.

man when doing that which is rightful should be held liable for consequences which he could not prevent by prudence or care, though another suffer bodily or other harm thereby. Such is the modern theory of civil liability'. For example: The defendant's horse, upon which the defendant is lawfully riding in the highway, takes a sudden fright, runs away with his rider, and against all the efforts of the defendant to restrain him, runs against and hurts the plaintiff. This is not a battery or other breach of duty2. Again: The defendant, walking near the plaintiff, suddenly turns round, and in so doing hits the plaintiff with his elbow. This is not a battery3.

Blow in play: other justifiable cases.

Nor is there necessarily a right of action though (not merely the general action of the defendant, as in the last example, but) the specific act of contact be intentional, for it may have been done in sport or play; though sport could doubtless be carried to such an extreme as to create liability. It is not even a decisive test, always, to inquire whether the act was done against the plaintiff's will. The plaintiff may be engaged in criminal conduct at the time; or he may be lying, unconsciously, in an exposed condition; or with the best of intentions he may be doing that which the defendant rightly thinks dangerous to life or property. In the first of these cases, an arrest of the plaintiff by laying on of hands will be justifiable; in the second case, an arousing or removing of him will be proper; in the third, the laying on of hands to attract his attention is lawful. In none of these cases is there liability, though the contact be against the will of the plaintiff. If however the act were done in a hostile manner,

the case would be different".

1 Stanley v. Powell, 1891, 1 Q. B. 86; post, chap. xix. But compare Lex Aquilia, fr. 45, § 4, the latter part of which is to the effect that if I throw a stone at a man assaulting me and hit some one else, I am liable.

2 See Vincent v. Stinehour, 7 Vermont, 62, and example cited by Williams, C. J.; and see Holmes v. Mather, supra, a still stronger case.

3 A case put by Martin, B., on the argument in Coward v. Baddeley, 4 H. & N. 478. See Brown v. Kendall, 6 Cushing (Mass.), 292; Holmes v. Mather, supra; Stanley v. Powell, supra; Holmes, Common Law, 105, 106.

4 As to the last case, see Coward v. Baddeley, supra.

5 These however are properly cases of justification; the justification accompanies what otherwise would be actionable.

6 Coward v. Baddeley, supra.

Taking one's own property from another.

A battery may be committed in an endeavour to take one's own property from the wrongful possession of another. If the party in possession should refuse to give up the property, the owner should resort to the courts to obtain it, or await an opportunity to get possession of it in a peaceful manner. Though entitled to take the property, he has no right to take it out of the hands of the possessor by unnecessary force. For example: The defendant, finding the plaintiff in wrongful possession of the former's horse, beats the plaintiff, after a demand and refusal to give up the animal, and wrests the horse from the plaintiff's possession. This is a battery1.

§3. JUSTIFIABLE ASSAULT: SELF-DEFENCE: 'SON

Administering correction.

ASSAULT DEMESNE'

There are a few cases in which a man is entitled to take the law into his own hands and inflict corporal injury upon another. Among these are to be noticed the right of a parent to give moderate correction to his minor child; the (probable) right of a guardian to do the like to a minor ward placed in his family; the right of a schoolmaster (when not prohibited by law or school ordinance) to do the like to his scholars2; the (possible) right of a master to do the like to young servants; and the right of officers, of reform, discipline, or correction to do the like towards the refractory who have been committed to their charge. And so of injuries sustained in lawful sport, such as games of ball and physical contests generally; in such cases the defence resting on the ground of the lawfulness of the sport rather than of consent3.

Aside from these and similar cases, the right to do that which would otherwise amount to an assault or a battery is confined to two or three cases, all of which are justified on grounds either of self-defence or on

Self-defence.

1 Andre v. Johnson, 6 Blackford (Indiana), 375. But the defendant could of course keep his horse. Scribner v. Beach, 4 Denio (New York), 448, 451.

2 See Sheehan v. Sturges, 53 Connecticut, 481; Hathaway v. Rice, 19 Vermont, 102; Commonwealth v. Randall, 4 Gray (Mass.), 36; Fertich v. Michener, 111 Indiana, 472.

3 Compare the Roman law as stated by Grueber, Lex Aquilia, pp. 226, 227.

the ground that the plaintiff really caused the act of which he complains. In the language of the old law the wrong complained of by the plaintiff was 'son assault demesne.' A person cannot be liable for an act which he himself has not committed or caused, either personally or by another authorized to act for him. Hence if the plaintiff himself caused the act complained of, the defendant cannot be liable to him for it.

The chief case to be noticed in which the justification of son assault demesne' is allowed is self-defence. Wherever it Protection of appears to have become necessary to the defendproperty. ant's protection to repel force by force, he may do so1. The right of self-defence extends to the use of physical force in the protection of property as well as of the person of the defendant, provided the property be at the time in the defendant's possession. No one has a right, except under authority of law, to seize upon the property of which the owner is in rightful possession; to do so is to take the risk of bodily violence. For example: The plaintiff, a creditor of the defendant, seizes the defendant's horses (which the latter is using) for the purpose of obtaining satisfaction of his debt. The defendant resists and strikes the plaintiff. He is not liable if he did not exceed the bounds of defence2.

If the owner or person entitled to possession was out of possession at the time of committing the alleged assault or battery, he will not be permitted to say, by way of defence, that the plaintiff caused the assault by having previously taken wrongful possession, or by having wrongfully detained the defendant's

Vim

1 Drew v. Comstock, 57 Michigan, 176; Miller v. State, 74 Indiana, 1. vi repellere licere Cassius scribit idque ius natura comparatur.' Dig. 43, 16, 1, § 27. The difficulty is in determining when it appears to be necessary to do the thing complained of, and when one may strike or shoot without first 'retreating to the wall.' See Howland v. Day, 56 Vermont, 318. Retreat cannot be required where action upon the instant appears to be necessary for self-protection. See Beard v. United States, 158 U. S. 550. Compare the Roman law. 'Sed et si quemcumque alium ferro se petentem quis occiderit, non videbitur iniuria occidisse: et si metu quis mortis furem occiderit, non dubitabitur quin lege Aquilia non teneatur. Sin autem cum posset adprehendere, maluit occidere, magis est ut iniuria fecisse videatur: ergo et Cornelia [lege] tenebitur.' Dig. 9, 2, 5 pr. (i.e. Lex Aquilia, fr. 5 pr.); Grueber, Lex Aq., pp. 9-11.

2 See Cluff v. Mutual Benefit Life Ins. Co., 13 Allen, 308; s. c. 99 Mass. 317; Scribner v. Beach, 4 Denio (New York), 448.

B. T.

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