the payment of costs, the original defendant is entitled to full compensatory damages, and if the action was groundless and was. prosecuted from malicious motives, punitive damages may be recovered.142 In case the nominal plaintiff is compelled to pay the costs, he can sustain a tort action against the wrongdoer.143

Maintenance,as defined by Lord Coke, “ is an unlawful upholding of the demandant or plaintiff, tenant or defendant, in a cause. depending in suit, by word, writing, countenance or deed." 144 When a stranger intervenes in a pending litigation, either for the plaintiff or the defendant, even though he is free from actual malice and there is probable cause for instituting or defending the suit, he does an unlawful act, and he makes himself liable to the opposite party for all costs and expenses of the proceeding. Blackstone declares that the practice of maintenance was greatly encouraged by the first introduction of uses, and treats it as an offense against public justice, as it keeps alive strife and contention, and perverts the reme lial process of the law into an engine of oppression. "A man may, however, maintain the suit," he adds," of his near kinsman, servant, or poor neighbor, out of charity and compassion, with impuity." 145 This exception to the common law liability for maintenance has received recent judicial recognition.146 It is also lawful for a person who has an interest in the subject matter of a litigation brought or defended by another, to contribute to its success.147 But if he has not a common legal interest with such litigant, and cannot bring himself within the exception noted by Blackstone, he will be liable in tort for maintenance.148 While an action for this wrong is rarely brought, modern decisions, both in England and in this country, show that it is maintainable.149

141 Moulton v. Lowe, 32 Me. 466 (1851); Pechell v. Watson, 8 M. & W. 691 (1841).

142 Bond v. Chapin, 8 Met. (Mass.) 31 (1844).

213 Metcalf v. Alley, 2 Ired. L. (N. C.) 38 (1841).

144 Inst. Vol. 2, p. 208.

145 Commentaries, Vol. 4, p. 135. 146 Harris v. Brisco, 17 Q. B. D. 504, 55 L. J. Q. B. 423 (1886).

147 Guy v. Churchill, 40 Ch. D. 481, 58 L. J. Ch. 345 (1889).

148 Alabaster v. Harness (1895), 1 Q. B. 339, 64 L. J. Q. B. 76.

140 Bradlaugh v. Newdegate, 11 Q. B. D. 1, 52 L. J. Q. B. 454 (1883); Fletcher v. Ellis, Hemp. (U. S. Superior Ct.) 300, 9 Fed. Cas. No. 4,863a (1836); Goodyear Dental Co. v. White, 2 N. J. Law J. 150 (U. S. C. Ct.), 10 Fed. Cas. No. 5,602

(1879).

CHAPTER VIII.

ASSAULT AND BATTERY.

1. WHAT CONSTITUTES THIS TORT.

The Right Invaded by an Assault, is the right to live in society without being put in reasonable fear of unjustifiable personal harm. A person who threatens another with immediate personal violence, having the apparent means and opportunity for executing the threat, commits an assault, for which a civil suit will lie,1 though a criminal prosecution may not. Accordingly, raising a club over the head of another and threatening to strike if the latter speaks, is an assault. It is sometimes said that the intent to inflict violence is essential even to a civil assault; and that when the party threaten

1 DeS. v. DeS., Y. B. Liber Assisarum, f. 99, pl. 60 (1348). Defendant threw a hatchet, attempting to hit plaintiff, but missed him; Tuberville v. Savage, 1 Mod. 3, 2 Keb. 545 (1669). Plaintiff put his hand upon his sword and said: "If it were not assize time, I would not take such language from you," held no assault, as there was no threat of inflicting violence; although the court said: "If one intending to assault, strike at another and miss him, this is an assault; so if he hold up his hand against another in a threatening manner and say nothing, it is an assault; Martin v. Schoppee, 3 C. & P. 373 (1828). Riding after another, threatening to whip him is an assault, although the person pursued escapes; Stephens v. Myers,

4 C. & P. 349 (1830). Defendant, advancing with clenched fist, was forcibly stopped by others, before getting within striking distance of plaintiff; Read v. Coker, 13 C. B. 850, 22 L. J. C. P. 201 (1853). Defendant and others threatened to break plaintiff's neck, if he did not leave, and advanced upon him.

3

2 See Chapman v. State, 78 Ala. 463, 56 Am. R. 42 (1885); but see State v. Shepard, 10 Ia. 126 (1859). S United States v. Richardson, 5 Cranch (C. C.), 348 (1837). "His language showed an intent to strike upon her violation of a condition which he had no right to impose; French v. Ware, 65 Vt. 338, 26 At. 1096 (1892). "Words never amount to an assault. They frequently characterize accompanying acts."

ing knows that he has not the present ability to execute the threat, the tort of assault is not committed.* The better view is, however, that the tort consists not in the wrongdoer's intention, but in his invasion of he plaintiff's right to freedom from being put in fear of bodily harm. A learned court has stated the reason for this view, as follows: "One of the most important objects to be attained by the enactment of laws and the institutions of civilized society is, that each of us shall feel security against unlawful assaults. Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect security. We have a right to live in society without being put in fear of personal harm. But it must be a reasonable fear of which we complain. And it is surely not unreasonable for a person to entertain a fear of personal injury when a pistol is pointed at him in a threatening manner, when, for aught he knows, it may be loaded, and may occasion his immediate death." 5 Reasonable fear may be inspired by threatening gestures, especially when these are connected with unlawful, sinister and wicked" conduct on defendant's part."

46

Absence of intent, on the part of the defendant to put the plaintiff in fear of bodily harm, is pertinent to the defense that the injury was accidental, or due to a practical joke, expressly or impliedly assented to by the plaintiff. But cases of this kind are not common. The Right Invaded by Battery, is the right to be secure from all unjustifiable interference with one's person. Battery, as dis

4 Blake v. Barnard, 9 C. & P. 626, 38 E. C. L. 365 (1840). But see R. v. St. George, 9 C. & P. 483 (1840).

5 Beach v. Hancock, 27 N. H. 223, 59 Am. Dec. 373 (1853); Kline v. Kline, 158 Ind. 602, 64 N. E. 9 (1902); Morgan v. O'Daniel (Ky.), 53 S. W. 1040 (1899); Moran v. Vicray (Ky.), 74 S. W. 244 (1903).

Handy v. Johnson, 5 Md. 450 (1854); Bishop v. Ranney, 59 Vt. 316, 7 At. 820 (1887); Keep v. Quallman, 68 Wis. 451, 32 N. W. 527 (1887).

7 Newell v. Whitcher, 53 Vt. 589, 38 Am. R. 703 (180); Leach v.

11

tinguished from assault, involves the infliction of actual violence upon the person; although the degree of violence is immaterial, and the term "person," in this connection, includes clothing and other articles which are so associated with the body as to partake of its legal inviolability. Accordingly, "the least touching of another in anger,' or as a trespasser,1° or in any manner which amounts to an "unlawful setting upon his person," "1 may subject one to an action for battery. Forcibly cutting the hair of an inmate of the poorhouse, without legal authority, 12 or injuring the clothing of another while on his person,13 or snatching or striking an article from his hand, or cutting a rope which fastens an article to his body,15 or striking a horse upon which he is riding, or which is attached to a carriage in which he is seated,18 or overturning a vehicle or chair in which he is, is an actionable battery.

14

17

It is not necessary that the assailant should come into immediate contact with his victim. The force which he sets in motion may be communicated through some instrumentality, 18 as a gun or a whip, If he throws a stone or other missile which hits the plaintiff,1o or spits in the latter's face,20 a battery is committed. Fraudulent deception, or recklessness 22 on the defendant's part, may be the legal equivalent of actual force.

21

9 Cole v. Turner, 6 Mod. 149 (1704).

10 Richmond v. Fisk, 160 Mass. 34, 35 N. E. 103 (1893). Defendant, without license so to do, entered plaintiff's sleeping room and touched him, so as to awken him, in order to present a milk bill.

11 Geraty v. Stern, 30 Hun (N. Y.), 426 (1883). Defendant's agent forcibly took an ulster off from plaintiff.

12 Forde v. Skinner, 4 C. & P. 239, 19 E. C. L. 494 (1830).

13 Reg. v. Day, 1 Cox. C. C. 207 (1845).

14 Respublica v. DeLongchamps, 1 Dall. 111 (1784); Dyk. v. DuYoung, 35 Ill. App. 138 (1889).

15 State v. Davis, 1 Hill L. (S. C.) 46 (1832).

16 Dodwell v. Burford, 1 Mod. 24 (1669); Spear v. Chapman, 8 Ir. L. R. 461 (1846); Clark v. Downing, 55 Vt. 259, 45 Am. R. 612 (1882); Marentille v. Oliver, 2 N. J. L. (1 Pennington) 379 (1808).

17

Hopper v. Reeve, 7 Taunt. 698, 1 Moore, 407, 2 E. C. L. 554 (1817). 19 Bullock v. Babcock, 3 Wend. (N. Y.) 391 (1829); Kendall v. Drake, 67 N. H. 592, 30 At. 524 (1891).

19 Peterson v. Haffner, 59 Ind. 130, 26 Am. R. 81 (1877).

20 Alcorn v. Mitchell, 63 Ill. 553 (1872). Damages were assessed at $1,000; Whitsett v. Ransom, 79 Mo. 258 (1883); Draper v. Baker, 61 Wis. 450, 21 N. W. 527, 50 Am. R. 143 (1884). Judgment for $1,200.

21 Cadwell v. Farrell, 28 I 11. 438 (1862); Carr v. State, 135 Ind. 1,

Extended Signification of Assault. While the common law drew a sharp distinction, as we have seen, between assault and battery, a distinction which is still maintained in many jurisdictions,23 the modern tendency is to give to the term "assault" an extended signification, making it denote a consummated as well as an inchoate battery. In such signification, the term will be employed throughout the remainder of this section.

19 25

Excusable Assaults. For two centuries there has been unquestioned judicial authority for the proposition, that "if two were to meet in a narrow passage, and without violence or design of harm, the one touches the other gently it will be no battery." The law accords a license for all interferences with the persons of others, which are fairly incident to ordinary conduct in the particular circumstances. It does not accord a license, however, for rude, reckless, or unnecessarily dangerous interference with the personal security of others.20

Leave and license of the injured party may serve as an excuse to one who otherwise would be liable for an assault.27 But to have this effect, as we have seen in a former connection, the license must have been obtained without deception, and for a lawful purpose.28 Inevitable accident is an excuse for what would otherwise be an actionable assault.29

Justifiable Assaults.

These have been considered at length in

a former chapter,30 and it is not necessary, in this connection, to

34 N. E. 533, 20 L. R. A. 863 (1893); Comm. v. Stratton, 114 Mass. 303, 19 Am. R. 350 (1873); McCue v. Klein, 60 Tex. 168, 48 Am. R. 260 (1883); Bartell v. State, 106 Wis. 342, 82 N. W. 142 (1900).

22 State v. Monroe, 121 N. C. 677, 28 S. E. 547, 43 L. R. A. 861, 61 Am. S. R. 686 (1897). Druggist dropped croton oil on candy, in order that purchaser might play a joke on some one.

23 Shapiro v. Michelson, 19 Tex. Civ. App. 615, 47 S. W. 746 (1898). 24 Pollock on Torts (5 Ed.), 210. New York Penal Code, §§ 217-223. 25 Holt, C. J., in Cole v. Turner, 6 Mod. 149 (1704).