Francis H. (Francis Hermann) Bohlen.

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an action for mere damages from an action in which damages may be given



8 CASES ON TORTS.

an action which traced descent from the breve de transgressione,
seemed to be ahnost the only remedy offered by the common law."

"What did men do before they had this action ? What did men
do in Glanvill's day? For one thing, we suspect that they uttered
'words of felony' upon slight provocation. For another thing, the
old action of theft could be used for the recovery of goods from an
honest hand, and a two-fold hot could sometimes be obtained. As
to blows and bruises, we take it that they sued for some preap-
pointed hot in the local courts. The king was not to be troubled
with such trifles. The early disappearance from English law of
the preappointed hot is very remarkable. The sister-law of Nor-
mandy after Bracton's death still knew a tariff for the minor
acts of violence — five shillings for a slap, eighteen for a knock-
down blow, thirty-six for a wound; but this tariff, simple when
compared with those of older days, apparently obtained only among
the roturiers, and the compensation due to a knight was a suit of
armour. Unfortunately the records of our local courts do not
begin until the influence of Westminster is supreme and its action
for damages is well known throughout the country, still we should
not be surprised to find that the doomsmen of the hall-moots when
they assigned damages for a blow or a 'villein word' were guided
by traditional and half-forgotten tariffs and thought but little of
tlie circumstances of the particular case."

"The writs of trespass are closely connected with the appeals
for felony. The action of trespass is, we may say, an attenuated
appeal. The charge of felonia is omitted ; no battle is off'ered ; but
the basis of an action is the wrongdonetotheplaintiff inhisbody, his
goods or his land *by force and arms and against the king's peace.'
In the course of time these sonorous words will become little better
than a hojlow sound ; there will be a trespass with force and arms
if a man's" body, goods or land have been unlawfully touched. From
this we may gather that the court had never taken very seriously
the 'arms' of the writ or fixed a minimum for the 'force' that would
beget an action. Still the action was aimed at serious breaches of
the king's peace, and, so far as we can see, the court in Henry III.'s
reign was seldom, if ever, troubled with 'technical trespasses' or
claims for 'nominal damages.' If we take the plaintiff's at their
word, there have been force enough and arms enough. There has
been a marauding foray ; a few years earlier it would have given
rise to a batch of appeals for wounds and robbery. Even when we
have made allowance for the froth of 'common form,' we see that
there are often some twenty defendants, and this tells a tale of



as complimentary to the recovery of a specific thing or specific debt would
be a toilsome task. Here it must suffice that one by one there came into
existence actions in which the plaintiff could obtain nothing but a money
compensation assessed by justices or jurors. In this contest we may men-
tion the action for vee de naam {de vetito namii) brought against a distrainor,
who, though he has now given back the beasts, has been guilty of detaining
them 'against gage and pledge'; also those frequent actions brought against
men who have persisted in going to the ecclesiastical tribunals after receipt
of a royal prohibition."



INTRODUCTION.



deliberate violence, of rapine and pillage. Edward I. when he intro-
duced this action into Wales set forth in strong words its punitive
and exemplary character."

"In the days when the writ of trespass was taking a foremost
place in the scheme of actions, the king's court had its hands full
if it w^as to redress and punish the wrongs done by gentlemen who
at the head of armed bands of retainers ravaged the manors of their
neighbors. We must not therefore expect to find cases which indi-
cate the limits of trespass. W^e may guess that some self-defence
was permissible, while all self-help, unless it took the form of the
timely ejectment of a disseisor, was strictly prohibited. Also we
may guess that this somewhat terrible action could not have been
used against those w'ho were not to be charged with any assault
on a person, entry on land or asportation of goods, but were guilty
of some misfeasance wdiile engaged in a lawful operation. In later
days, slowly and with difficulty, the court gave an action against
the clumsy smith who lames the horse that he is shoeing, against
the stupid surgeon who poisons the wound that he should cure.
Such persons could not be charged with breaking the king's peace
by force and arms. We may w-ell doubt whether Bracton or any
contemporary lawyer would have told them that they had committed
no tort, we may perhaps doubt whether they could not have been
successfully sued in some of the local courts; but the king's justices
were not as yet busied whh these questions, and such records of the
lowlier tribunals as are in print do not hold out much encouragement
to the investigator who is in search of a medieval law of negligence,
though he might find some rules, probably severe rules, about dam-
age done by straying cattle, goring oxen, biting dogs and fire.
Hardly a germ is to be found of any idea which will answer to the
Roman culpa or become our modern negligence."



SWAYNE V. ROGERS.
Court of King's Bench, 2 Car. 1. 3 Cro. Rep. 32.

Trespass for battery in the King's Bench, and judgment for the plaintiff.

Error in the exchequer chamber was assigned, fVir that the judgment was
capiatur, whereas the battery was before the general pardon, so as the fine
is pardoned, and the judgment ought not to have been a capiatur; for the
Court is to take notice of the pardon and give judgment for the party, but
not any fine. — Sed nan allocatur: for the Court need not take the conusance
thereof without demand of the party; and it doth not appear whether the
party is any of the persons excepted, or one who is to have benefit of the
pardon.



CHAPTER I



SECTION 1.

Assault.



I DE S ^? UX. V. W DE S.

At the Assizes, 1348. Y. B. Lib Assessonum, folio 99, 60 placitum.

I de S and M, his wife, complain of W de S concerning this
that the said W, in the year etc., with force and arms {vi et armis)
did make an assault upon the said M at S and beat her. And W
pleaded not guilty. And it was found by the verdict of the Inquest
that the said W came at night to the house of the said I and sought
to buy of his wine, but the door of the Tavern was shut and he beat
upon the door with a hatchet which he had in his hand, and the
wife of the plaintiff put her head out of a window and commanded
him to stop, and he saw and he struck (at her) with the hatchet
but he did not hit the woman. Whereupon the Inquest said that
it seemed to them that there was no trespass since no harm (was)
done. (Thorpe, C. J.) There is harm done and a trespass for which
he shall recover damages since he made an assault upon the woman,
as has been found, although he did no other harm. Wherefore tax
the damages &c., and they taxed the damages at half a mark. Thorpe
awarded that they should recover their damages etc. and that the
other should be taken. And so note that for an assault made a man
shall recover damages etc.^



^ So it was held in many early cases that the plaintiff might receive sub-
stantial damages for an assault without any battery or other damage, 40 Edw.
Ill, 40 pi. 19 (1366) ; 42 Edw. Ill, 7 pi. 25 (1368) ; 45 Edw. Ill, 24 pi. 35
(1371). In the first case Belknap for the defendant contends that an assault
without battery is not actionable, since it is not "a thing against the peace,"
while in the last case, when the inquest had found that there had been no
battery but an assault, and taxed the damages at twenty pounds, he, then
representing the plaintiff, says : "Because of an assault a man receives dam-
ages, since he is disturbed in his affairs (car il est disturbe de ses affair),
so by this (the verdict) it is understood that he was damaged (en dam)
therefore it is reasonable that he should receive the damages taxed by the
inquest."

In Anon., 1 Vent. 256, it was held an assault, though no battery, to wave
a sword in a menacing manner, and in Tombs v. Painter, 13 East 1 (1810),
"the clenching of his fist was," said Lord Ellenborough, C. J., "an assault
and an act of personal offence."

In a case in Lib. Ass., 134 pi. 11 (1853), a tax collector of a town, suing
for himself and the King, recovered one hundred shillings against defendants
who had reviled (rebiiquerent) him with evil words, so that he did not dare
to remain in the town, because it was found that they had reviled him and
made an assault upon him, though they had committed no battery.

10



STATE v. DAVIS. II

STATE V. DAVIS.
Supreme Court of North Carolina, 1840. 1 Iredell 125.

The defendant was indicted at Yancy, on the last Fall Circuit,
before his Honor Judge Pearson, for an assault and battery upon
one William Roberts.

In support of the prosecution, a witness was called, who testi-
fied that he, Roberts and the defendant were crossing the Coney
mountain, on their return from a muster ; that witness and the
defendant were walking together, leading their horses down the
mountain, and that Roberts was ten or fifteen feet ahead, on foot,
with a rifle in his hand ; that a quarrel commenced between the
defendant and Roberts, when, upon Roberts using some insulting
language to him, the defendant said to witness "hold my horse — I'll
whip the rascal," and instantly dropped his bridle, and advanced
towards Roberts, with his hands extended, as if to catch hold of
him ; but before he did so Roberts stepped on one side, struck him
with his rifle, and knocked him down. The witness stated further,
that the w^ords "I'll whip the rascal," were spoken loud enough for
Roberts to hear them ; but he was unable to state how near the de-
fendant was to Roberts when the latter struck him — he thought
defendant was in about four feet ; but he would not say he was in
striking distance of Roberts, or could have reached him with his
arm. The defendant's counsel insisted, and moved the court so to
charge the jury, that "if defendant was not in striking distance,
when he made the blow, he was not guilty of an assault." His
Honor instructed the jury that an "assault was an offer or attempt to
strike, under such circumstances as would induce a man of ordinary
firmness to believe that he was instantly to receive a blow, and would
justify his striking to prevent it. That if this w^ere not so, the peace
might be broken, and neither party be guilty — the one, because he
struck in self defense ; and the other, because his act did not amount
to an assault. That, being in striking distance was a good general
rule, but did not include all cases of assault; that an offer to strike,
at such a distance that any body could see the blow would not take
effect, was not an assault ; but if the distance were such as would
induce a man of ordinary firmness, connecting it with the other
circumstances, to believe that he would instantly receive a blow,
unless he struck in self defence, the oiler to strike would amount to
an assault, although it should be proved that the assailant was not
near enough to reach. That in this case, if the jury believed the wit-
ness, and were satisfied that the defendant had rushed upon Roberts
and got so near that, under the circumstances, a man of ordinary
firmness, would have believed that he was instantly to receive a blow,
they would find the defendant guilty of the assault, although they
were not satisfied that he had got quite near enough to reach him."
The defendant was found guilty and appc 'ed.

Gaston, Judge. Upon the whole, we are of opinion, that there
is no error in the Judge's charge.



12 STATE V. DAVIS.

An assault is an intentional attempt, by violence, to do an injury
to the person of another. It must be intentional — for, if it can
be collected, notwithstanding appearances to the contrary, that there
is not a present purpose to do an injury, there is no assault. Thus,
where a man laid his hand on his sword and said "if it were not
assize time, I would not take such language from you," the Court
agreed that it was not an assault ; for the declaration was that he
would not assault him, the Judges being in town, and the intention
as well as the act makes an assault. Tuherville v. Savage, l Mod.
Rep. 3.^ And it must also amount to an attempt — for a purpose to
commit violence, however fully indicated, if not accompanied by an
effort to carry it into immediate execution, falls short of an actual
assault.^ Therefore it is, that notwithstanding many ancient
opinions to the contrary, it is now settled, that no words can, of
themselves, amount to an assault, i Hawk. C. 62 S. i, page no.
And therefore, also it is said not to be an assault, if a man strike
at another at such a distance that he can not reach him, or put him
in fear. 2 Comyn's Bat. C. The distance is here explanatory of the
apparent attempt to strike and shews that in truth, it is not an at-
tempt — but only a menace — to do hurt to his person. It is difficult
in practice, to draw the precise line which separates violence men-
aced from violence begun to be executed — for until the execution of
it is begun, there can be no assault. We think, however, that where
an unequivocal purpose of violence is accompanied by any act,
which, if not stopped — or diverted — will be followed by personal
injury — the execution of the purpose is then begun — the battery is
attempted.^ Thus, riding after a person so as to compel him to run
into a garden for shelter to avoid being beaten, has been adjudged
to be an assault. Morton v. Shoppie, 3 Car. & Payne, 373 ( 14 Eng.



^Accord: State v. Crow, 1 Iredell 375 (1841) ; CommonzvcaUh v. Eyre,
1 S. & R. 347 (Pa. 1815), the defendant raised his hand and said, "If it were
not for your gray hairs I would tear your heart out." This is held not to be
an assault because "the action of raising the hand and accompanied by words
shewed that the defendant was determined not to strike," Tilghman, C. J.,
p. 350.

So, while the jury can not infer an absence of intention to strike from
the fact "that no blow was given, when not proven by any physical impedi-
ment or inability to inflict one," "if there are any declarations or circum-
stances tending to indicate a want of such intention, then the jury are bound
to take the declarations or circumstances into consideration, in deciding upon
the intention," Le Grand, C. J., in Handy & Tnll v. Johnson, 5 Md. 450 ( 1854),
p. 465.

^Accord: Haupt v. Swensoirii, 125 Iowa 694 (1904). So in State v|.
Daniel, 136 N. Car. 571 (1904), it was held that mere cursing and general
abuse is not an assault though the prosecutor is put in fear thereby and sub-
mits his will to that of the defendant. .. "

^ Mere preparation is not enough. "Neither a purpose to make an assault
nor any amount of preparation for so doing will constitute an assault un-
less followed by some hostile demonstration against the person toward whom
the purpose is entertained. If the defendant had gone and procured the gun
for the express purpose of taking the life of Andrews, but after coming up
with Andrews had made no demonstration toward the accomplishment of
that purpose, he would not be guilty," Henry, J., State v. Painter, 67 Mo. 84
(1871), p. 89.



STATE ^'. MORGAN. 1 3

Com. Law Rep. 355)-* So, in a late case, before a very eminent
English judge, it was held, that where the defendant was advancing
in a threatening attitude, zcitli intent to strike the plaintiff, so that
his blow would, in a second or two, have reached the plaintiff, if
he had no been stopped, although when stopped he was not near
enough to strike, an assault was committed. Stephen v. Myers,
4 Car. & Payne, 349 (19 Eng. Com. Law Rep. 414).'^ In the case
under consideration, the intent of the defendant to seize the prose-
cutor's person was not in question. The instruction prayed for,
and the instruction given necessarily presupposes it. The instruction
prayed for is, "that if defendant was not in striking distance, zi'heti
he made the blozv, he was not guilty of an assault," and the instruc-
tion given is, that an offer "to strike, at such a distance that any one
could see the blozv would not take effect, was not an assault" — but
that "the offer to strike would be an assault, although the assailant
was not near enough to reach, if the distance were such as to induce
a man of ordinary firmness, under the accompanying circumstances,
to believe that he would instantly receive a blow, unless he struck
in self defence." "Rushing," with that intent, upon the prosecutor,
and approaching, in execution of that intent, so near as to render it
necessary for the prosecutor's safety to strike him down, amounts
in law to an assault in the defendant.

Per Curiam. Judgment to be affirmed.®



STATE V. MORGAN.

Supreme Court of North Carolina, 1842. 3 Iredell 186.

This was an indictment against the defendant for an assault and
battery on Elias Cantrell, to which he pleaded "not guilty." The
jury impannelled to try the issue returned the following special



* Accord: People v. Jesus Yslas, 27 Cal. 630 (1865), and Thomas v. The
State, 99 Ga. 38 (1896), where the pursuing defendant never came closer to
the prosecutor than twenty-five feet. The flight proves the existence of the
fear. State v. Shipman, 81 N. Car. 513 (1879) : see also. State v. Razvlcs, 65
N. Car. 334 (1871), where the prosecutor avoided the threatened violence by
leaving a place where he had a legal right to be.

"Accord: State v. Vannoy, 65 N. Car. 532 (1871); State v. Yaiim, 37
Tex. Crim. R. 205 (1897) ; Gann v. State, 40 S. W. 725 (Tex. 1897).

* So it is an assault though the defendant shall relinquish his purpose and
refrain from striking the blow, intended, Handy & Tull v. Jolnison, 5 Md. 450,
supra, or where the person against whom the violence is directed prevents it
by an act of self-defense, as by seizing the bridle of the horse which the de-
fendant is attempting to ride over her, Toivnsdin v. Nutt, 19 Kans. 282 (1877),
or by striking the defendant, as in the principal case, or by a counter-threat
which deters the defendant from his purpose, Bristcr v. The State. 40 Tex.
Crijn. App. 505 (1899), where the defendant, rushing upon the prosecutor
with an open knife in his hand was stopped by the prosecutor pointing* a
pistol at him.

But see People v. Lrllcy, 43 Mich. 521 (1880)_. where it is held that_ if
the defendant abandon his purpose before he arrive within actual striking
distance, there is no assault, rejecting the test, that the "person assaulted" was
put in fear.



14 STATE V. MORGAN.

verdict : EHas Cantrell, on the day set out in the indictment, being
a constable, and having a fieri facias against the goods of the de-
fendant Morgan, went to the house of Morgan, in the county of
Henderson, and, in the presence of Morgan's wife, she forbidding
him to do so, took into his hands a gun, the property of Morgan.
She then proposed that Cantrell should not take the gun off until
Morgan was sent for. Cantrell assented, and held the gun in his
hands, in the presence of the wife, in the yard, having stepped out of
the house into the yard with the gun in his hands, until Morgan
came, which was about ten minutes. Morgan came up with an
axe in his hand, and required Cantrell to give up the gun. Cantrell
refused ; whereupon Morgan stepped up within reach of him, held
the axe up in a position to strike, and said "give up the gun or I'll
split you down." Cantrell did not at the time give up the gun, but
proposed some arrangement, upon which Morgan let the axe down.
The matter was arranged, and then Cantrell gave up the gun.
Morgan was, at the time, liable to muster, and the gun was his
arms for muster. The jury further find, that Morgan, at the time he
went up to Cantrell and raised the axe within reach of him, intended
to strike, unless Cantrell gave up the gun ; but did not intend to
strike, if Cantrell gave up the gun — that Morgan used no more
force than was necessary to compel Cantrell to give up the gun.
Whether, upon these facts, the defendant, in law, committed an
assault, and, if so, whether the assault was justified as being in
the defense of his property, the jury are ignorant, and pray the
opinion of the court. If the court, upon these facts, is of opinion
that the defendant is guilty, then the jury so find ; and if the court is
of opinion that the defendant is not guilty, then the jury so find.

The court was of opinion, that raising the axe, with an intention
to strike unless the gun was given v^p, did amount to an assault ;
for if a man draws a weapon, intending to strike if the other does
not pull off his hat, or surrender his money, or do some act which
he has no right to require, the offer and intention amount to an as-
sault, although it be his intention only to strike, provided his unlaw-
ful terms are not complied with.

Gaston, J.^ Two questions are presented for our considera-
tion on this special verdict, and for the purpose of perspicuity it is
necessary that they should be examined separately. The first is,
whether the defendant committed an assault ; and the second, if he
did, whether that assault was justified as having been committed in
the rightful defence of his property.

Upon the first question, this court entertains the same opinion,
which was expressed in the Superior Court. There are several
ancient cases in which it was held, that an assault might be com-
mitted by threats of future violence ; but it has long been settled,
that words alone can not constitute an assault. They may endanger
the public peace, but do not break it. There is no assault, unless



^ Only so much of the verdict and opinion is g'wen as relates to the
question as to whether the defendant's conduct constituted an assault.



STATE V. MORGAN. 1 5

there be some act amountinfr to an attempt or offer to commit per-
sonal violence. The instances usually given of such attempts or
offers to do wrong to the person of another, are "by the striking
at him with or without a weapon, or presenting a gun at him within
a distance which the gun will carry, or pointing a pitch-fork at him
standing within reach of it, or by holding up one's list at him in an
angry threatening manner." i Hawk. chap. 15. The law regards
these acts as breaches of the peace, because they directly invade that
personal security, which the law guaranties to every citizen. — They
do not excite an apprehension that his person may be attacked on a
future occasion, and thus authorize a resort to cautionary remedies
against it ; but they are the beginnings of an attack, excite terror of
immediate personal harm or disgrace, and justify a resort to actual
violence to repel the impending injury and insult. But even acts,
which prima facie and unexplained are undoubtedly assaults, like
other acts which are not unequivocal in their character, may be
shown to be in truth different from what they purport to be ; that
they are not attempts or offers to do harm, but merely angry
gestures without any accompanying purpose of mischief. The at-
tending circumstances may plainly show this, and, among other cir-
cumstances, the declarations of the party at the time, inasmuch as
such declarations are ordinarily indicative of the party's purpose,
are very proper to be considered and weighed. The ordinary illus-
tration of the doctrine, that a seeming assault may be explained away
by the declarations of the supposed assailant, is the very familiar
case where a man laid his hand on his sword and said to the person,
with whom he was quarreling, "if it were not assize time, I would
not take such language from you." There is also an illustration of
it in the case of the State v. Crowe, i Ired. (N. Car.) 375, where the
defendant, when he raised the whip, used the words, "if you were
not an old man, I would knock you down." In both it was held
to be a fair subject of enquiry, whether, at the time these acts were
done, there was a present purpose of doing harm, and that, if there
was not, the acts did not amount to an assault. But these, and all
the cases within our recollection where this doctrine has been held,
were cases, in which there was a declared intent not to do harm at
the time. The present case is one of a very different character. The
act was not only apparently a most dangerous assault, but accom-