property. Such is not a case of 'son assault demesne,' as the example already given of the horse taken from the plaintiff's possession by violence shows1.

And though a trespasser should make an assault upon the owner of property, and seek to take it out of the owner's possession, the owner is allowed to use no greater force in resisting the unlawful act than may be necessary for the defence of his possession. If he should reply to the trespasser's attempt with a force out of proportion to the provocation, the act would then be, in the old law phrase, still true in legal effect, 'his own battery,' and not the plaintiff's; or again, in the technical language of the old pleading, the plaintiff's reply was, and still in effect is, that the tort was 'de injuria sua propria,'—the defendant's own wrong. For example: The defendant, owner of a rake which is in his own hands, knocks the plaintiff down with his fist, upon the plaintiff's taking hold of the rake to get possession of it. The defendant is liable. Again: The defendant strikes the plaintiff repeated blows, knocking her down several times, upon her refusal to quit the defendant's house. The plaintiff is entitled to recover1.

Nor is it lawful for the owner of property, in defence of his possession, to make an attack upon the trespasser without first calling upon him to desist from his unlawful purpose, unless the trespasser is at the time exercising violence. In the example last given, the defendant would have been liable for a mere hostile touch had he not first requested the plaintiff to leave his premises; unless she had entered his premises forcibly3.

In the next place it is to be observed that a person may not only make reasonable defence of his own person, and of the possession of his own property; he may do the same towards the members of his own family when attacked, and perhaps also towards the inmates of a house in which he is then receiving hospitality.

Reasonable defence of members of one's family.

1 Ante, p. 176.

2 The allowable force in such a case was formerly expressed by the words (of pleading) ‘molliter manus imposuit,'—the defendant gently laid his hands upon the plaintiff. Compare Lex Aquilia, fr. 52, § 1; Grueber, pp. 169, 170.

3 Scribner v. Beach, 4 Denio (New York), 448.

4 Gregory v. Hill, 8 T. R. 299.

5 See Scribner v. Beach, 4 Denio (New York), 448.

6 Black. Com. i. 429.

Certain it is that a servant may justify a battery as committed in defence of his master1; that is, he may do anything in his master's defence which his master himself might do. And on the other hand, notwithstanding some doubts in the books, a master may justify a battery as committed in defence of his servant. For example: The plaintiff attacks the defendant's servant, whereupon the defendant assists his servant to the extent of repelling the attack, and no further. The defendant is not liable2.

A person may also justify the use of a proper amount of physical force as rendered in quelling a riot or an Quelling riot. affray at the instance of a constable or other officer of the peace3, or perhaps of his own motion when no officer is present.

may

§ 4. VIOLENCE TO OR TOWARDS ONE'S SERVANTS

Double breach of duty.

It will have been observed that a double breach of duty be committed by the same assault or battery; one to the person to whom the violence is done, and, where such person is a servant or a child of the plaintiff, another breach to the person whom he or she was serving or assisting. It follows that each has a right of action against the wrongdoer in respect of the breach of his own individual right; the servant or child for the violence (that is, for the assault or battery) and its proper consequences, and the master or parent for the loss of service or assistance1.

There will be this difference however between the rights of

1 Reeve, Domestic Rel. 538 (3rd ed.).

2 Tickell v. Read, Lofft, 215.

3 Year Book 19 Hen. 6, pp. 43, 56; Bigelow's L. C. Torts, 270.

4 The relation of parent and child is for such purpose the relation of master and servant. That of course is not true of the relation of husband and wife; but whether the husband alone could recover for a battery committed upon his wife without proving special damage, quære?

Quære of the master's right of action where the servant has been hurt, to the master's damage, in a case in which the servant had taken the risk, as in some physical contest? If the contest was lawful, the master could not recover, unless the hurt was inflicted wrongfully; this, not because of the servant's consent, but because the contest was lawful. See ante, p. 176. Compare Dig. 9, 2, 52, § 4; Dig. 9, 2, 7, § 4; Grueber, Lex Aquilia, pp. 226, 227. If the contest were unlawful, could the servant's consent bar the master's claim to damages?

Distinction between master's action

and servant's.

action of the master and the servant (using these terms generically), that the latter will be entitled to recover judgment for the mere assault and battery, though no damage were actually inflicted; while the former will be entitled to judgment only in case he can prove either (1) that the violence committed was such as to disable the person who sustained it from rendering the amount of aid which he or she was able to render before the act complained of; or (2) that such person was, by reason of the violence, caused to depart from or abandon the service or abode of the plaintiff1. That is, the master must have sustained an actual damage2; but if he has thus been injured, he is entitled to recover therefor, even though the defendant's act consisted only in violent demonstrations. For example: The defendants, by menaces and angry demonstrations against the plaintiff's servants, cause them to leave and abandon the plaintiff's service. The defendants are liable; though no bodily violence was committed upon the servants3.

vice.

The plaintiff must either have been entitled to require the services of the party assaulted or beaten, or he must have been Right to ser- in the actual enjoyment of them, if they were gratuitous. A parent cannot maintain an action for an assault or a battery committed upon his child after the child's majority, unless he or she was then actually in the parent's service; nor could the parent maintain an action for such an injury committed upon his child during the child's minority, if the parent had in any way divested himself of the right to require his child's services.

1 The authorities upon this subject are mostly ancient, but they are probably still law. See Bigelow's L. C. Torts, 226, 227.

2 In the case of an assault or battery upon one's wife, the husband at common law joined in the action; but the real right of action lay in the wife. And in times of servitude the master could, it seems, sue in trespass for an assault or battery committed upon his villein, even though the former sustained no damage. Bigelow's L. C. Torts, 227.

3 Year Book 20 Hen. 7, p. 5; Bigelow's L. C. Torts, 226. These are cases of the use of wrongful means; they are to be distinguished from cases of persuasion. See ante, chaps. iv., v.

4 Questions of this sort have generally arisen in actions for seduction. See ante, pp. 124-126.

Contract.

Some qualification of a master's right of action seems to be required when the loss of service caused by the assault was only an accidental or unexpected effect of the assault. Upon that idea it appears to have been laid down that if, in the course of performing a contract between the defendant and the plaintiff's servant, the defendant commit a battery upon the servant, which battery works incidentally a breach of the terms of the contract, the plaintiff has no right of action for the loss of service following. For example: The defendants, common carriers of passengers, are paid by the plaintiff's servant for safe passage from X to Y. On the way the servant is assaulted, bruised, and injured by servants acting for the defendants, the defendants thus failing to carry the servant safely according to their agreement; whereby the plaintiff loses the injured person's service for a period of nineteen weeks. The plaintiff is not entitled to recover; the injury being deemed to be due to breach of duty to the servant alone1.

By the common law, rights of civil action for injuries done to the person (and indeed all rights of action ex delicto, except for the wrongful taking or detention of property and like acts2) cease with the death of the party

Death of parties.

1 Compare Alton v. Midland Ry., 19 C. B. N. s. 213; s. c. 15 Jur. N. s. 672; Fairmount Ry. Co. v. Stutler, 54 Penn. St. 375. See Taylor v. Manchester Ry. Co., 1895, 1 Q. B. 134, 140; id. 944; Harvard Law Rev., Nov. 1895, p. 215; post, Negligence. The contract-duty (of service in the example) may or may not be the only duty created in the case. If I buy a gun for myself only, the contract-duty of the seller in regard to the proper making of the gun is to me alone. See Meux v. Great Eastern Ry. Co., 1895, 2 Q. B. 387, 390. But if the seller understands that the rights of another are involved,-that another also is to use the gun,-then there is a duty to that person as well as to me. Langridge v. Levy, 2 M. & W. 519; s. c. 4 M. & W. 338, Exch. Ch. See also Thomas v. Winchester, 6 New York, 397. The real reason then for the decision in the example of the text appears to be, that the defendant did not know of the rights of any one but the servant. Duty imports observed or observable danger. Ante, p. 12.

2 Ante, pp. 45, 46. See Phillips v. Homfray, 24 Ch. Div. 439; also the early statutes, 4 Edw. 3, c. 7, 25 Edw. 3, st. 5, c. 5, and the modern one, 3 & 4 Wm. 4, c. 42; Pollock, Torts, 65, 6th ed. And Lord Campbell's Act, 9 & 10 Vict. c. 93, gives a right of action to the personal representative 'for the benefit of the wife, husband, parent, and child of the person' killed. See Seward v. The Vera Cruz, 10 App. Cas. 59 (overruling The Franconia, 2 P. D. 163); Pym v. Great Northern Ry. Co., 4 Best & S. 396, Ex. Ch.; Bulmer v. Bulmer, 25 Ch. D. 409.

injured or of the wrongdoer. 'Actio personalis moritur cum persona.' And this rule, though not without strong doubts, has been held to apply to actions by masters for the killing of their servants1. The rule that the action dies with the death of either party permits however an action by the master for damages between the time of the injury of the servant and his death, where death was not immediate2.

Trespass merged in felony.'

§ 5. FELONY

There is an old formula of the law that 'trespass is merged in felony'; and assault or battery is a trespass. But the meaning of this maxim is somewhat uncertain. The better view, however, so interprets it as materially to modify if not destroy its force in the natural sense of the language; for it has been considered to mean only this, that where the wrongful act amounts to felony, the injured party ought first, in duty to the public, to see that the cause is prosecuted criminally to conviction (or at least wait until that is done by some one) unless the failure can be excused. That condition performed, he may sue the offender; otherwise not3. But it is admittedly difficult to apply the rule, at least if it is considered to be the duty of the injured party to prosecute; for how could such a duty be enforced1?

1 Osborn v. Gillett, L. R. 8 Ex. 88, Bramwell, B., dissenting strongly. See also Pollock, Torts, 60-64, 6th ed.

2 Baker v. Bolton, 1 Camp. 493; Osborn v. Gillett, L. R. 8 Ex. 88, 90, 98. See also Insurance Co. v. Brame, 95 U. S. 754; Harvard Law Rev., Dec. 1900, pp. 290, 291.

3 Pollock, Torts, 197-200, 6th ed. See Ex parte Ball, 10 Ch. Div. 667, 673; Roope v. D'Avigdor, 10 Q. B. D. 412; Wells v. Abrahams, L. R. 7 Q. B. 554 (casting doubt upon Wellock v. Constantine, 2 H. & C. 146).

4 See Wells v. Abrahams, supra, at p. 563.