by parol, the plea of non assumpsit, where it is not otherwise restricted by rules of Court, puts in issue every material averment. Under this issue, therefore, the defendant may not only show those things, which affect the original validity of the submission, or of the award, such as infancy, coverture, want of authority in the arbitrators, fraud, revocation of authority, intrinsic defects in the award, and, if there is no other mode of relief, extrinsic irregularities also, such as want of notice, and the like; but he may also show any thing which at law would defeat and destroy the action, though it operate by way of confession and avoidance, such as a release, payment, or performance.1 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.2

1 Stephen on Pleading, p. 179-182 (Am. edit. 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.

ASSAULT AND BATTERY.

§ 82. AN assault is defined to be an inchoate violence to the person of another, with the present means of carrying the intent into effect.1 Mere threats alone do not constitute the offence; there must be proof of violence actually offered.2 Thus, if one ride after another, and oblige him to run to a place of security to avoid being injured; or throw at him. any missile capable of doing hurt with intent to wound, whether it hit him or not; 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.7 But to stand in another's way and passively to

1 1 Steph. N. P. 208; Finch's Law, 202; Stephens v. Myers, 4 C. & P.

349.

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

5 Ibid. If the gun is not loaded, it is no assault. Blake v. Barnard, 9 C. & P. 626; Regina v. James, 1 C. & K. 530.

6 Stephens v. Myers, 4 C. & P. 349, per Tindal, C. J.

7 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

obstruct his lawful progress, as any inanimate object would, though done by design, is no assault.1

§ 83. The intention to do harm, is of the essence of an assault; 2 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; or if, at the time of 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 assize-time he would not take such language; 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."

§ 84. 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; it is only considered by the Jury, in assessing the damages in a civil action, or by the Judge, in passing sentence, upon indictment. Thus, any touching of the person, in an angry, re

1

1 Jones v. Wylie, 1 C. & K. 257.

2 But as to battery, see infra, § 94.

3 Griffin v. Parsons, 1 Selw. N. P. 25, 26.

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

5 Moriarty v. Brooks, 6 C. & P. 684.

6 Alderson v. Waistell 1 C. & K. 358.

7 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.

vengeful, rude, or insolent manner;1 spitting upon the person;2 jostling him out of the way; pushing another against him; throwing a squib, or any missile, or water upon him;5 striking the horse he is riding, whereby he is thrown;6 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; is a battery; for any thing attached to the person, partakes of its inviolability.9

§ 85. 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.10 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. So, if a horse, by a sudden fright, runs away with his rider, not being accustomed so to do, and runs against a man; 12 or if a soldier, in discharging his musket by lawful military command, unavoidably hurts another; 13 it is no battery; and in such cases the defence may be made under the general issue.14 But to make out a defence under this plea, it must be shown that the defendant was free from any

1 2 Hawk. P. C., B. 1, c. 62, § 2; 4 Bl. Comm. 120.

2 1 East, P. C. 406; Regina v. Cotesworth, 6 Mod. 172.

3 Bull. N. P. 16.

4 Cole v. Turner, 6 Mod. 149.

5 Scott v. Shepherd, 2 W. Bl. 892, 3 Wils. 403, S. C.; Pursell v. Horn,

8 Ad. & El. 605; Simpson v. Morris, 4 Taunt. 821.

6 Dodwell v. Burford, 1 Mod. 24.

7 United States v. Ortega, 4 Wash. 534; 1 Baldw. 600.

8 Respublica v. De Longchamps, 1 Dall. 111, 114, per McKean, C. J.; The State v. Davis, 1 Hill, (S. Car. R. 46.)

9 lbid.

10 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, § 269, 271.

11 Bull. N. P. 16.

12 Gibbons v. Pepper, 4 Mod. 404; Bull. N. P. 16.

13 Weaver v. Ward, Hob. 134.

14 4 Mod. 405.

3

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.1 Thus, if one of two persons fighting, unintentionally strikes a third; or if one uncocks a gun without elevating the muzzle, or other due precaution, and it accidentally goes off and hurts a looker on; or, if he drive a horse too spirited, or pulls the wrong rein, or uses a defective harness, and the horse, taking fright, injures another; 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 not dangerous, it may be justified. If it were done in a boxing-match, or fight, though by consent, it is an unjustifiable battery; the proof of consent being admissible only in mitigation of damages.7

§ 86. 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; 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.10 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

1 Hall v. Fearnley, 3 Ad. & El. 919, N. S. See infra, § 94, 622, 625; 1 Chitty, Pl. 437; Knapp v. Salsbury, 2 Campb. 500; Boss v. Litton, 5 C. & P. 407.

3 Underwood v. Hewson, Bull. N. P. 16; 1 Stra. 596, S. C. 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. 4 Wakeman v. Robinson, 1 Bing. 213.

55 Com. Dig. 795, tit. Pleader, 3 M. 18; Foster, Cr. L. 259, 260.

6 Boulter v. Clark, Bull. N. P. 16; Stout v. Wren, 1 Hawks, 420.

7 Logan v. Austin, 1 Stew. 476. See infra, tit. DAMAGES.

8 1 Saund. 24, note (1), by Williams; Bull. N. P. 86; Brownl. 233.

9 Mostyn v. Fabrigas, Cowp. 161.

10 Stante v. Pricket, 1 Campb. 473.

11 Gillon v. Wilson, 3 Monr. 217.