Statement of the duty. A owes to B the duty to forbear (1) to attempt with force to do hurt to his person, within reach; or (2) to hit or touch him in anger, rudeness, or negligence, or in the commission of any unlawful act.

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There is so much in common in the law of the two wrongs of assault and battery, and the two are so often coincident, that the terms are frequently used without discrimination. 'Assault' is constantly used in the books of cases of contact, making it include battery.'1 But assault without contact is a wrong equally with battery; and it will be convenient and advisable to consider the two subjects separately, however similar the law in regard to them.

§ 2. OF ASSAULTS (WITHOUT CONTACT).

An assault (without contact) is an attempt, real or apparent, to do hurt to another's person, within reach. It is an attempt to do bodily harm, stopping short of actual execution. If the attempt be carried out by physical

2

1 See the proposed definition in the English draft Criminal Code of 1879; Pollock, Torts, 192, 2d ed.

2 Words are no assault; but they may be a menace and so action. able, with proof of damage. L. C. Torts, 225-227.

contact, the act becomes a battery; but the act is equally unlawful and actionable when it stops with a mere attempt to inflict hurt. It is not alone a blow that, because of unpermitted contact with the person, is unlawful. The sensibility to danger may be intentionally shocked; and feelings so affected are within the protection of the law quite as much as the feeling produced by blows. It is actionable for A to shake his fist in the face of B.1

In ordinary cases of assault, the question whether the defendant actually intended to do the bodily harm cannot, as the definition implies, enter into the case. If reasonable fear of present bodily harm has been caused by the threatening attitude, the effect of an assault has been produced; and not even a disclaimer by the wrong-doer coincident with his act could, it seems, prevent liability. One may well complain of a man who points a pistol at one, though the man truly declare that he does not intend to shoot; 2 for the ordinary effect of an assault, the intended putting one in fear, is produced.3

But it may appear in a particular case that an expressed purpose, or want of purpose, is a determining fact in solving a doubt; that is, it may be such a part of the act in question as to turn the scales in deciding whether an assault has been committed. A denial of present purpose

1 Bacon's Abr. 'Assault and Battery,' A.

2 See Reg. v. St. George, 9 Car. & P. 483, 493, Parke, B.; Bacon's Abr. Assault and Battery,' A; 1 Hawkins, P. C. 110; Pollock, Torts, 193, 2d ed., doubting Blake v. Barnard, 9 Car. & P. 626, 628, and Reg. v. James, 1 C. & K. 530. Reg. v. St. George, ut supra, 'would almost certainly be followed at this day.' Pollock, Torts, 193, note, 2d ed. But see Regina v. Duckworth, 1892, 2 Q. B. 83.

3 It may not be necessary, however, to an assault that this effect should be produced. A person assaulted may be entirely fearless, feeling sure that the blow will not fall. Again, one may probably be assaulted in the dark without knowing it. But the putting in fear is the ordinary effect, and what might well put in fear is probably a test. Intent to harm is unnecessary; intent to put in fear is necessary.

to do harm, or any language indicating a want of such purpose, may serve, under the circumstances, to prevent the excitement of any reasonable fear of present bodily harm. If then it appear that the supposed wrong was committed in such a manner that the plaintiff must have known that no present violence was intended, the act is not an assault. For example: The defendant, on drill as a soldier, putting his hand upon his sword, says to the plaintiff,If it was not drill-time, I would not take such language from you.' This is not an assault, since the language used, under the circumstances, shows that there was no attempt, real or apparent, to do violence.1

If, however, the plaintiff have reason to believe, from the defendant's hostile attitude, that harm was intended, there is an assault, whether the defendant did or did not intend harm. So at least it is held for the purpose of civil redress. For example: The defendant in an angry manner points an unloaded gun at the plaintiff, and snaps it, with the apparent purpose of shooting. The gun is known by the defendant to be unloaded; but the plaintiff does not know the fact, and has no reason to suppose that it is not loaded. The defendant is liable for an assault, though he could not have intended to shoot the plaintiff. 2

The parties must generally have been within reach of each other, not necessarily within arm's reach, for an assault may be committed (as already appears) by means of a weapon or missile; and in such a case it is only necessary that the plaintiff should have been within reach of the projectile. And even when the alleged assault is committed with the fist, it is not necessary that the plaintiff should have been within arm's reach of the defendant,

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1 See Tuberville v. Savage, 1 Mod. 3.

2 Beach v. Hancock, 27 N. H. 223.

8 Tarver v. State, 43 Ala. 354; State v. Taylor, 20 Kans. 643.

provided the defendant was advancing to strike the plaintiff, and was restrained by others from carrying out his purpose when almost within reach of the plaintiff. For example: The defendant advances toward the plaintiff in an angry manner, with clenched fist, saying that he will pull the plaintiff out of his chair, but is arrested by a person sitting next to the plaintiff between him and the defendant. The act is an assault, though the defendant was not near enough to strike the plaintiff.1

In like manner, if the defendant should cause the plaintiff to flee in order to escape violence, he may be guilty of an assault, though he was at no time within reach of the plaintiff; it is enough that flight or concealment becomes necessary to escape the threatened evil. For example: The defendant on horseback rides at a quick pace after the plaintiff, then walking along a foot-path. The plaintiff runs away, and escapes into a garden; at the gate of which the defendant stops on his horse, shaking his whip at the plaintiff, now beyond danger. This is an assault.2

It will be observed, from the statement of the duty which governs this branch of the law, that a mere assault is a civil offence; and hence the person assaulted has a right of action, though he may not have suffered any loss or detriment from the offence. In such a case, however, unless the assault were outrageous, he could (probably) recover only nominal damages.3

§ 3. OF BATTERIES.

A battery consists in the unpermitted application of force by one man to the person of another. A battery,

1 Stephens v. Myers, 4 Car. & P. 349 ; s. c. L. C. Torts, 217.

2 Mortin v. Shoppee, 3 Car. & P. 373.

3 The damages recovered in Stephens v. Myers, supra, were one shilling.

therefore, is mainly distinguishable from an assault in the fact that physical contact is necessary to accomplish it. But, as the definition indicates, this contact need not be effected by a blow; any forcible contact may be sufficient. For example: The defendant, an overseer of the poor, cuts off the hair of the plaintiff, an inmate in the poorhouse, contrary to the plaintiff's will, and without authority of law. This is a battery, and the defendant is liable in damages.1 Again: The defendant, in passing through a crowded hall, pushes his way in a rude manner against the plaintiff. This is also a battery.2

It is not necessary that the defendant should come in contact with the plaintiff's body. It is sufficient if the blow or touch come upon the plaintiff's clothing. For example: The defendant, in anger or rudeness, knocks off the plaintiff's hat. This is enough to constitute a battery.

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Indeed, it is not necessary that the plaintiff's body or clothing be touched. To knock a thing out of the plaintiff's hands, such as a staff or cane, would clearly be a battery; and the same would be true of the striking a thing upon which he is resting for support, at least if this cause a fall or concussion to the plaintiff. For example: The defendant strikes or kicks a horse upon which the plaintiff is riding, or a horse hitched to a wagon in which the plaintiff is riding. This is a battery.* Again: The defendant drives a vehicle against the plain

1 Forde v. Skinner, 4 Car. & P. 239.

2 Cole v. Turner, 6 Mod. 149; s. c. L. C. Torts, 218.

8 Mr. Addison gives this as an example of a battery, without citing authority; but there can be no doubt of its correctness. Addison, Torts, 571 (4th ed.).

4 Clark v. Downing, 55 Vt. 259; Dodwell v. Burford, 1 Mod. 24. Probably it would not be necessary that the plaintiff should be thrown from the horse or thrown against anything.