plaintiff, affords a good cause of action. This rule is not confined to contracts in the nature of contracts for personal service. (Temperton v. Russell, [1893] 1 Q. B. 715; Chipley v. Atkinson, 23 Fla. 206).

P. 103. Children are said to be non sui juris, when they are so young as not to be chargeable with negligence, because they cannot understand about danger and the need of care and caution; as, e. g., in the case of children two, three, or four years of age. Whether an intelligent child of five or six or seven years of age is sui juris is generally deemed a question of fact for the jury. Children above these ages are commonly regarded as sui juris, but the degree of care and caution required of them is not the same as in the case of adults, but only such as may be expected of their age, experience and capacity. (Thurber v. Harlem, &c., R. Co., 60 N. Y. 326; Fallon v. Cen. Park, &c., R. Co., 64 N. Y. 13). In New York and some other States, when a child is non sui juris, the negligence of his parent or guardian in exposing the child to danger is imputed to the child, and will preclude recovery in the child's behalf for an injury which the child suffers from the negligence of a third person. (McGarry v. Loomis, 63 N. Y. 104; Weil v. Dry Dock R. Co., 119 N. Y. 147). But the doctrine does not apply if the child's conduct is such as would be deemed proper care in the case of an adult. (Ihl v. 42d St. R. Co., 47 N. Y. 317; see 58 N. Y. 652). In a number of the States, the rule of imputed negligence in such cases is altogether discarded.

P. 650. If a statute gives a remedy in the affirmative (without a negative expressed or implied) for a matter which was actionable at common law, the party

may sue either at common law or under the statute. But if a statute creates a right which did not exist before and prescribes a remedy for its violation, that remedy must be pursued. (Stafford v. Ingersoll, 3 Hill, 38; Rochester v. Campbell, 123 N. Y. 405; People v. N. Y. C. R. R. Co., 74 N. Y. 302). As to whether a statute shall be deemed to confer a private right upon an individual, see Ward v. Hobbs, L. R. 4 App. Cas. 13; Bathurst v. McPherson, id. 256, 268; Baxter v. Doe, 142 Mass. 558.

ASSAULT AND BATTERY.

Pp. 160-169. An assault, as distinguished from a battery, is an offer or attempt to do personal violence, accompanied by circumstances indicating an intent coupled with a present ability to do such violence. (Hays v. People, 1 Hill, 351). In other words, it is an act causing or likely to cause present apprehension of immediate violence. It comprises three elements:

(1) The offer or attempt. Mere words do not constitute an assault.

(2) The real or indicated intent to do present injury. An indicated intent is sufficient without the real intent, as where a man points a pistol which he knows to be unloaded at another, within range, and threatens to shoot, and the other believes it to be loaded. (See Comm. v. White, 110 Mass. 407). Of course, the real intent often co-exists, but it is not necessary.

If there be accompanying words showing clearly absence of intent, the act does not amount to an assault; but the rule is otherwise if the words be ambiguous on this point, as where one said, "I have a good mind to strike you," at the same

time making an offer to strike. (State v. Hampton, 63 N. C. 13). If the words used impose an unlawful condition, as where one threatens to strike another if she opens her mouth, the act is an assault. (U. S. v. Richardson, 5 Cr. C. C. 348).

(3) The real or apparent present ability to do violence. Threatening with a whip, or the fists, on the other side of an impassable wall or ditch, is no assault; but threatening with a loaded or unloaded pistol within range would be.

As to an assault by negligence, see Comm. v. McLaughlin, 5 Allen 507. But there is no liability for a personal injury caused by pure accident. (Brown v. Collins, 53 N. H. 442; Stanley v. Powell, [1891] 1 Q. B. 86).

A battery is the wrongful infliction of actual personal violence. Things attached to the person partake of the same immunity, and therefore it is a battery to pull a man's coat-tails violently.

By modern statutes mayhem is often made to include acts of personal disfigurement, and it is not limited, as at common law, to injuries to the members which are useful in fighting. (See Foster v. People, 50 N. Y. 598).

A person in self-defense may act upon reasonable apprehension of danger, though it may turn out that there was no real danger in fact. Homicide by one under reasonable apprehension that his life is endangered is justifiable homicide. (Shorter v. People, 2 N. Y. 193; New Orleans, &c., R. Co. v. Jopes, 142 U. S. 18). Selfdefense is justifiable, though an innocent bystander is injured thereby. (Morris v. Platt, 32 Ct. 75).

Carriers of passengers may expel persons from their vehicles who violate rea

sonable regulations, by the reasonable use of force. (Hibbard v. N. Y., &c., R. R. Co., 15 N. Y. 455; Pease v. D. L. & W. R. R. Co., 101 N. Y. 367; see Erie R. Co. v. Winter, 143 U. S. 60). But the pas senger may resist expulsion while the car is in motion. (Guilford v. 8th Ave. R. R. Co., 23 N. Y. 343).

A schoolmaster may inflict corporal punishment upon a pupil, if it is not excessive "in the general judgment of reasonable men." sonable men." (Patterson v. Nutter, 78 Me. 509). In England it has lately been held that he might punish a scholar for an offense (assault upon a fellow pupil of the same school) committed while on the way to school. (Cleary v. Booth, [1893] 1 Q. B. 465).

In Massachusetts and some other States a landlord may remove a tenant at sufferance with a reasonable degree of force, without making himself liable for assault and battery. (9 Allen 530; 121 Mass. 309; 17 R. I. 731). But in New York and some other States he cannot regain possession by forcible means. If, however, he regains possession peaceably, then he may use force to keep the wrongdoer out of possession. (Bliss v. Johnson, 73 N. Y. 529).

An action for assault and battery will lie, though the defendant had no intent to do actual harm; as where a schoolboy kicked another in the leg in the schoolroom, and as a result of the kick serious abscesses afterwards developed. burgh v. Putney, 80 Wis. 523).

FALSE IMPRISONMENT.

(Vos

Pp. 169-180. As to the necessity of exhibiting the warrant, when an arrest is made by warrant, see Comm. v. Cooley, 6 Gray, 356.

On reasonable suspicion of felony, an officer may, at common law, make an arrest without a warrant, even though it turns out that no felony has been committed; but he may not, without a warrant, make an arrest for a past misdemeanor, unless he is specially authorized by some statute. (Scott v. Eldridge, 154 Mass. 25.)

In New York an officer may arrest without warrant: (1) when a person has committed or attempted a crime in his presence; (2) when a person has committed a felony, though not in his presence; (3) when a felony has in fact been committed and he has reasonable grounds for believing a person to have committed it.

A private person may arrest without warrant in the first two of these cases, but not in the third. (Code Cr. Pro., §§ 177, 183.)

Warrants must specify the person to be arrested, either by name or by description.

As to the arrest of the right person by the wrong name, which amounts to false imprisonment, see Griswold v. Sedgwick, 1 Wend. 126; 6 Cow. 456; Miller v. Foley, 28 Barb. 630.

When process upon which a person has

been arrested has been set aside as irregular, the attorney who obtained or issued it, and also his client, are liable for false imprisonment. The rule is different when process is set aside for error. As to the difference between irregularity and error, see Mark v. Townsend, 97 N. Y. 590; Day v. Bach, 87 N. Y. 56; Fischer v. Langbein, 103 N. Y. 84; Chapin v. Foster, 101 N. Y. 1; Guilleaume v. Rowe, 94 N. Y. 268. This distinction is very important. When process is set aside for error, no condition can be imposed that the party shall not sue for false imprisonment. Chapin v. Foster, supra.

As to master's liability for arrests made by servant, see L. R. 4 App. Cas., 270, and cases cited; Abrahams v. Deakin, [1891] 1 Q. B. 516; Palmeri v. Manhattan R. Co., 133 N. Y. 261.

Probable cause, in cases of arrest upon suspicion, is a question of law. (Lister v. Perryman L. R. 4 H. L. 381.)

Where a person injured by an act of false pretences believed it to be larceny and caused the plaintiff's arrest by a detective, without a warrant, for larceny, Held, that he was liable for false imprisonment. (Thorne v. Turck, 94 N. Y. 90.)

CHAS. F. BEACH, Jr. ERNST FREUND, JOHN M. GLover, BRADFORD W. HITCHCOCK, LOUIS C. Ledyard, ROBert Sewell, HOWARD A. TAYLOR, SIMON STERNE, S. C. T. DODD, J. BLEECKEr Miller, EUGENE D. HAWKINS, DWIGHT ARVEN Jones, FREDERIC F. HARTICH, EDWARD E. Sprague, A. L. PINCOffs, STEWART CHAPLIN. JOHN BROOKS LEAVITT, ELIHU ROOT, D. J. HOLDEN, Alfred C. PETTE, JOHN D. LINDSAY, HENRY MORRIS HAVILAND, THOMAS G. SHEARMAN.

THERE is presented in our school a magnificent opportunity of which many of the students are neglecting to take advantage.

Many of the students, while anxious and determined to succeed at the bar, and making strenuous efforts to fit themselves for their profession, and are eagerly taking advantage of every opportunity the lecture-room affords for acquiring a knowledge of the law, are nevertheless failing to equip themselves in a most essential particular, in which the school

offers a splendid means of development. Practice and training in speaking clearly and forcibly are as essential to making a successful counsellor as physical exercise is to a victorious competitor in athletic games.

It is said by some, the times have changed, and in this practical period eloquence and oratory have not the force they had in former times, consequently there are to-day no Websters or Calhouns. The times indeed have changed--they have been doing this as far back as history goes. Through all the ages at different periods great orators have arisen, oftentimes contemporaneously, and when they had passed away sometimes years would intervene before others appeared who could so sway men's souls. But their words lived on, influencing men, and later, others with like power would appear and be no less influential. Looking over history we do not say there were no men powerful in speech in those intervals, because in those days eloquence would have had no influence, but rather we say eloquence had no influence in those times because there were no eloquent men. As well say there has been no Shakespeare through the past two hundred years because the times have changed, and do not demand one, as to say there are no living orators in America to-day, because a need for them is not felt. As well say a Shakespeare's influence would not be felt to-day as to say eloquent power in speech would not. It is true the times have changed--grant there are to-day no Websters or Calhouns, yet who would say that if this generation. were blessed with these men, their power and influence would not be felt at the bar, in the campaign, and in the legis

Thus

lature and congressional halls. Richard's mighty battle axe became of no avail, not because it had lost its power, but because there was no Richard to wield it. Nothing is more painful and fatal than an unwarranted attempt at eloquence that does nothing but consume time and space. In practice in speaking this Scylla should be as carefully avoided as the Charybdis of the flat, forceless expression.

But is it true that there is a dearth of real forceful eloquence in our day? May it not be that the very reason that no one, or two, or three men are peculiarly famous as orators to-day is because there are so many who have attained a masterly use of language, and great power in public speaking. It seems very safe to affirm that the young lawyer who thinks that in the practice of his profession he will not have to contend with the extemporaneous display of ready wit, incisive logic, appropriate words, and well adapted appeals to the hearts of judges and jurors, will find himself sadly mistaken. To us it seems that there never was a country or an age in which the art of public speaking was more necessary to a lawyer than it is in the United States at the present day.

In the moot courts our school offers a rare chance for practice in speaking. It would be needless to dwell on the importance to the lawyer of ability in this art were not the opportunity for training in it being neglected by the students. Many of the students come from colleges and universities, which offer splendid advantages for athletic and literary training, but pay little attention to declamation or debate. And the college graduates in our school while they show the good re

sults of their training in the former particulars, show no less their lack of training in the latter. Whereas for the lawyer the power of clear, succinct statement, forcible, convincing expression, is next in importance to common sense and a knowledge of the law.

In the forensic battle, defensive or aggressive, there is need of a sharp weapon and skill and alertness in its use. He who can think on his feet and say clearly what he thinks has decidedly the advantage. The lawyer who cannot conduct the fight he has planned, or who cannot after the fight has begun instantly change his plan of attack or defense, and who is not able to meet the unexpected onslaughts of his adversary, is as helpless in his hands as a general would be who could only plan his battle in the quiet of his tent, and who could neither effectually carry out his plans on the field nor change them when if followed they would bring defeat. This is an age of large business concerns, of mammoth combinations and corporations. Often millions may turn on what may be called the extemporaneous generalship of the lawyer. And the training that will give self-possession and the ability to think quickly and express clearly in the crowded court-room, will give the same in the no less important consultation with opponents in the privacy of the office. If men get at things more directly and quicker in these practical, hurrying times, there is all the more need for training in the art of speaking, for eloquence and power in this lie not in useless words, but in saying in the most direct and convincing manner what one has to say.

Practice in speaking not only aids in developing the ability of dealing strong