We are of opinion, that there was no error in the instructions; and we cannot presume that they were misunderstood or disregarded by the jury. Exceptions overruled.1

46. REGISTRUM BREVIUM (1595). Breve de insultu facto et minis impositis (fol. 108). Ostensurus quare vi &c. in ipsam Agnetem apud B. insultum fecerit &c. tractauit, & eidem A. de domibus suis ibidem prosternendis, quousque eadem A. finem pro viginti solidos pro saluatione domorum suarum praedictarum cum praefatis I. & R. fecisset, comminati fuerunt, & alia enormia &c. T. anno eodem.

47. MORTIN v. SHOPPEE

NISI PRIUS. 1828

3 C. & P. 373

ASSAULT. Plea: General issue. The plaintiff was walking along a foot-path by the roadside at Hillingdon, and the defendant, who was on

1 [PROBLEMS:

The plaintiff, riding on a train, was unlawfully compelled by the defendant's conductor to jump from the moving train; the conductor threatening to push him off if he did not jump. While preparing to jump, the plaintiff, who was afflicted with hernia, suffered fear at the prospect of renewing it by the fall. May he recover for this fear? (1890, Fell v. R. Co., 44 Fed. 248.) The plaintiff was bitten by the defendant's dog. of hydrophobia suffered by him, past and to come? Md., 73 Atl. 277); 1880, Godeau v. Blood, 52 Chamberlain, 7 Del. (Houston) 18, 30 Atl. 638; 1898, Trinity & S. R. Co. v. O'Brien, 18 Tex. Civ. App. 690, 46 S. W. 389.)

May he claim for the fear (1909, Buck v. Brady, 111 Vt. 251; 1894, Warner v.

The defendant's train culpably struck the plaintiff's wagon at a crossing. The plaintiff was thrown out and corporally injured. May he include his fright in the items of damage? (1895, Warren v. R. Co., 163 Mass. 895, 40 N. E. 895; 1896, Consolidated Traction Co. v. Lambertson, 59 N. J. L. 297, 60 id. 457, 35 Atl. 100.)

The defendant was landlord of the plaintiff and desired to evict her, the lease having expired. The plaintiff was ill in bed. The defendant entered and tried to smoke her out, by taking off the stove-lid and pouring water in the stove. The plaintiff brings an action of assault and trespass. (1879, Wood v. Young, - Ky., 50 S. W. 541.)

The plaintiff was wrongfully forced to leave the defendant's train between stations. To return to the station, he had to cross a covered railroad bridge on a narrow planking. He was lame; it was dark; trains were liable to pass over the bridge without warning. May he recover for the terror thereby suffered? (1867, Chicago & O. R. Co. v. Flagg, 43 Ill. 364.)

The defendant threw a stone against the plaintiff's house, intending to injure it. The plaintiff was in the room which it struck, and she heard the crash. But it did not appear that the plaintiff knew of the defendant's intention to damage the house; nor that the defendant knew of the plaintiff's presence in that room. May the plaintiff recover for fright? (1897, White v. Sander, 168 Mass. 296, 47 N. E. 90.)

The plaintiff, while riding in the defendant's train, was corporally injured in a collision caused by the defendant's fault. May he include his fright in the items of damage? (1901, Shay v. R. Co., 66 N. J. L. 334, 49 Atl. 547.)]

horseback, rode after him at a quick pace. The plaintiff ran away, and got into his own garden; when the defendant rode up to the garden-gate (the plaintiff then being in the garden about three yards from him), and, shaking his whip, said, “Come out, and I will lick you before your own

servants."

Denman, C. S., objected, that this did not amount to an assault.

Lord TENTERDEN, C. J. If the defendant rode after the plaintiff, so as to compel him to run into his garden for shelter, to avoid being beaten, that is in law an assault.

Verdict for the plaintiff. Damages, 40s.

ASSAULT and false imprisonment. The first count charged an assault committed by the defendant on the plaintiff on the 24th of March, 1853, by thrusting him out of a certain workshop.

Plea: Not guilty "by statute," upon which issue was joined.

The cause was tried before Talfourd, J., at the first sitting in London in Easter term last. The facts which appeared in evidence were as follows: The plaintiff was a paper-stainer, carrying on business in the City Road, upon premises which he rented of one Molineux, at a rent of 88. per week. . . . It was agreed between the plaintiff and the defendant that the business should be carried on for their mutual benefit, the defendant paying the rent of the premises and other outgoings, and allowing the plaintiff a certain sum weekly.

The defendant, becoming dissatisfied with the speculation, dismissed the plaintiff on the 22d of March. On the 24th, the plaintiff came to the premises, and, refusing to leave when ordered by the defendant, the latter collected together some of his workmen, who mustered round the plaintiff, tucking up their sleeves and aprons, and threatened to break his neck if he did not go out; and, fearing that the men would strike him if he did not do so, the plaintiff went out. This was the assault complained of in the first count. Upon this evidence the learned judge left it to the jury to say whether there was an intention on the part of the defendant to assault the plaintiff, and whether the plaintiff was apprehensive of personal violence if he did not retire. The jury found for the plaintiff on this count. Damages, one farthing.

Byles, Serjt., on a former day in this term, moved for a rule nisi for a new trial, on the ground of misdirection, and that the verdict was not warranted by the evidence. That which was proved as to the first count clearly did not amount to an assault. . . . To constitute an assault, there must be something more than a threat of violence. assault is thus defined in Buller's Nisi Prius, p. 15:

"An assault is an attempt or offer, by force or violence, to do a corporal hurt to another, as by pointing a pitchfork at him, when standing within reach; presenting a gun at him [within shooting distance]; drawing a sword, and waving it in a menacing manner, &c. The Queen v. Ingram. But no words can amount to an assault, though perhaps they may in some cases serve to explain a doubtful action."

...

So, in 3 Bl. Comm. 120, an assault is

said to be "an attempt or offer to beat another, without touching him; as if one lifts up his cane or his fist in a threatening manner at another, or strikes at him but misses him; this is an assault, insultus, which Finch (L. 202) describes to be 'an unlawful setting upon one's person. [JERVIS, C. J. If a man comes into a room, and lays his cane on the table, and says to another, "If you don't go out I will knock you on the head," would not that be an assault?] Clearly not: it is a mere threat, unaccompanied by any gesture or action towards carrying it into effect. The direction of the learned judge as to this point was erroneous. He should have told the jury that to constitute an assault there must be an attempt, coupled with a present ability, to do personal violence to the party; instead of leaving it to them, as he did, to say what the plaintiff thought, and not what they (the jury) thought was the defendant's intention. There must be some act done denoting a present ability and an intention to assault. A rule nisi having been granted,

JERVIS, C. J. I am of opinion that this rule cannot be made absolute to its full extent; but that, so far as regards the first count of the declaration, it must be discharged. If anything short of actual striking will in law constitute an assault, the facts here clearly showed that the defendant was guilty of an assault. There was a threat of violence exhibiting an intention to assault, and a present ability to carry the threat into execution.

MAULE, J., CRESSWELL, J., and TALFOURD, J., concurring.

Rule discharged as to the first count.

49. BEACH v. HANCOCK

SUPERIOR COURT OF JUDICATURE OF NEW HAMPSHIRE. 1853

TRESPASS, for an assault.

27 N. H. 223

Upon the general issue it appeared that, the plaintiff and defendant being engaged in an angry altercation, the defendant stepped into his office, which was at hand, and brought out a gun, which he aimed at the plaintiff in an excited and threatening manner, the plaintiff being three or four rods distant. The evidence tended to show that the defendant snapped the gun twice at the plaintiff, and that the plaintiff did not know whether the gun was loaded or not, and that, in fact, the gun was not loaded.

The Court ruled that the pointing of a gun, in an angry and threatening manner, at a person three or four rods distant, who was ignorant whether the gun was loaded or not, was an assault, though it should appear that the gun was not loaded, and that it made no difference whether the gun was snapped or not.

The defendant excepted to these rulings and instructions.

The jury having found a verdict for the plaintiff, the defendant moved for a new trial by reason of said exceptions.

Morrison and Fitch, for the defendant. The first question arising in this case is, Is it an assault to point an unloaded gun at a person in a threatening manner? . . . The Court erred in instructing the jury that the pointing of a gun in an angry and threatening manner was an assault. It is well settled that the intention to do harm is the essence of an assault, and this intent is to be collected by the jury from the circumstances of the case. 2 Greenl. Ev. 73.

D. and D. J. Clerk, for the plaintiff.

GILCHRIST, C. J. Several cases have been cited by the counsel of the defendant to show that the ruling of the Court was incorrect. Among them is... the case of Regina v. St. George, 9 C. & P. 483 . . In this case, Parke, B., said: "If a person presents a pistol which has the appearance of being loaded, and puts the party into fear and alarm, that is what it is the object of the law to prevent." So if a person present a pistol purporting to be a loaded pistol at another, and so near as to have been dangerous to life if the pistol had gone off; semble, that this is an assault, even though the pistol were, in fact, not loaded. Ibid.

One of the most important objects to be attained by the enactment of laws and the institutions of civilized society is, each of us shall feel secure 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 surely is 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. The business of the world could not be carried on with comfort, if such things could be done with impunity. We think the defendant guilty of an assault. . .

1 [PROBLEMS :

Judgment on the verdict.1

The appellant, while standing on the opposite side of a table from the prosecutrix, a girl about fourteen years of age, made, as she describes it, a "kissing sign" to her; that is, "he puckered his lips and smacked them." He did not come near enough to touch her, nor did he make any effort to kiss her, or use any violence. Appellant was a near neighbor, and some intimacy existed between the two families, and the girl was in the habit of visiting at his house. On the

50. WYMAN v. LEAVITT

SUPREME JUDICIAL COURT OF MAINE. 1880

71 Me. 227

ON exceptions and motion to set aside the verdict.

The facts sufficiently appear in the opinion.

Baker & Baker, for the plaintiffs. . . . This is an action for injury to the domicil of the plaintiff, while she and her family were occupying it, and it is a legitimate element of damages, that the peace of the house was disturbed, and that the plaintiff was put in fear and peril, not as a ground of action, but as an inevitable consequence. It is absurd to hold that if a person assaults a dwelling-house with huge rocks, and breaks in the roof, and endangers the lives of the owner and occupant, and her children, although they are not in fact killed or wounded, that the owner is to have no compensation for her fear, peril and mental suffering. Suppose the danger so alarming as to cause a fright, so great as to produce sickness, fever, or insanity, would this be no element of damage? . . . A. P. Gould and J. E. Moore, for the defendant. . . .

VIRGIN, J. These are actions on the case against a sub-contractor to recover damages caused by his alleged negligence in blasting out a ledge within the located limits of a railroad, whereby rocks were thrown upon the plaintiffs' adjoining lands and buildings, and for not removing, within a reasonable time thereafter, rocks thus lodged on their respective premises.

The cases were tried together. At the trial, Mrs. Wyman's counsel asked her, when upon the stand as a witness, to "give the jury some idea of her anxiety in relation to the blasting of the ledge while she was in and about the house in relation to herself and family." The question was seasonably objected to by the defendant, but the witness was allowed to answer as follows: "At first, I was not much frightened; then after the second Jordan began the heavy blasting, I used to watch my little boy when he went to school and came." This answer was objected to and admitted. After giving a detailed statement of the warnings of the blastings, she further testified in answer to the above general question: "I felt afraid the rocks would hit him" . . . "I was afraid." (Objected to; admitted.) "I was in fear from the time the second

particular occasion he had called to return some article which he had borrowed. Was it an assault? (1902, Fuller v. State, 44 Tex. Cr. 463, 72 S. W. 184.)

The defendant came into the house where Mrs. S. was sitting at a window. He had a musket and a club. He raised the club over her head, and said that if she said a word (or, if she opened her mouth) he would strike her. Was this an assault? (1837, U. S. v. Allison, 5 Cr. C. C. 348.)]