stances, the jury are warranted in taking that into their consideration and giving exemplary damages (g). The damages recoverable must not be too remote (h), and whether the tort affects property, person, or character, the plaintiff can only recover such damages as are the natural result of the wrongful act (i). The decisions of the Courts as to what may be considered to be the natural consequences of the wrongful act are somewhat conflicting (j). Chap. I. By 21 Jac. I. c. 16, s. 3, it is enacted, that all actions (k) of Statutes of trespass, detinue, trover and replevin for taking away of goods and Limitations. cattle, all actions upon the case, and all actions of assault, menace, battery, wounding, and imprisonment, or any of them, shall be commenced within the time and limitation thereafter expressed and not after; that is to say, the said actions upon the case other than for slander, and the said actions for trespass, detinue and replevin for goods or cattle, and the said actions of trespass quare clausum fregit, within six years next after the cause of such actions or suit, and not after, and the said actions of trespass, of assault, battery, wounding, imprisonment, or any of them, within four years next after the cause of such actions or suit, and not after; and the said actions upon the case for words within two years next after the words spoken and not after. But (s. 4) if in any of the said actions judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff that he take nothing by his plaint or writ, the plaintiff, his heirs, executors, etc., may commence a new action within a year after such judgment reversed or given against the plaintiff and not after. By the 19 & 20 Vict. c. 97, s. 10, absence beyond seas, or imprisonment (1) of the plaintiff at the time of the accrual of the cause of action, is no longer to have the (g) Bell v. Midland Rail. Co., 10 C. B. N. S. 287; 30 L. J. C. P. 273; Emblen v. Myers, 6 H. & N. 54; 30 L. J. C. P. 273. (h) Hoey v. Felton, 11 C. B. N. S. 142; 31 L. J. C. P. 105 ; Sharp v. Powell, L. R. 7 C. P. 253; 41 L. J. C. P. 95. (i) See Mayne on Damages (by Lumley Smith, Q.C.), 4th ed. p. 41, and seq. By the Rules of the Supreme Court, O. xxxvi. r. 58, for a continuing cause of action damages are to be assessed down to the time of the assessment. As to prospective damages, see Fetter v. Beale, (j) See Macmahon v. Field, 7 Q. B. D. (k) For limitation of actions for the recovery of Real Property, see post, p. 63. (7) By 4 & 5 Anne, c. 16, s. 17, in the case of the plaintiff, the period of limitation did not commence running until his return from beyond the seas, or until the expiration of the term of his imprisonment. Chap. I. When statute begins to run. effect of extending the period of limitation. This section is retrospective (1). By the 4 & 5 Anne, c. 16, s. 19, it was enacted that if any person or persons against whom there shall be any cause of action of trespass, detinue, actions sur trover or replevin, for taking away goods or cattle or of action upon the case, or assault, menace, battery, wounding and imprisonment, or any of them, be or shall be at the time of any such action given or accrued, fallen or come beyond the seas, that then such person or persons who is or shall be entitled to any such suit or action, shall be at liberty to bring the said actions against such person or persons after their return from beyond the seas, so as they take the same after their return from beyond the seas within such times as are respectively limited for the bringing of the said actions before by this Act and by the 21 Jac. I., c. 16. By the 19 & 20 Vict. c. 97, s. 12, no part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney and Sark, nor any islands adjacent to any of them, are to be deemed to be beyond the seas within the meaning of the 4 & 5 Anne, c. 16. The words "beyond the seas" are synonymous in legal import with the words "out of the realm, or out of the land, or out of the territories," and are not to be construed literally (m). The statute begins to run from the time when damage first accrues to the plaintiff in consequence of the act committed by the defendant. Thus if by the act of A. an injury is occasioned to the foundation of the house of B., of which B. has not at the time any knowledge, but which afterwards exhibits itself by creating actual mischief to B.'s house, B. is not prevented by the Statute of Limitations from maintaining an action for damages, though more than six years have elapsed since the doing of the act which was in reality (though unknown at the time) the origin of the mischief, for the cause of action really accrued when the actual damage exhibited itself (mm). So where goods having been bailed by the plaintiffs to the defendant for safe custody, he wrongfully sold them, and the plaintiffs, more than six years after the date of the sale, being (1) Cornill v. Hudson, 27 L. J. Q. B. 8; Pardo v. Bingham, L. R. 4 Ch. 735, 39 L. J. Ch. 170. (m) Ruckmaboye v. Lalloobhoy Motti chund, 8 Moo. P. C. 4. (mm) Backhouse v. Bonomi, 9 H. L. Cas. 503; 34 L. J. Q. B. 181. ignorant of the fact of its having taken place, demanded the return of the goods, which he refused; it was held, in an action for detinue for the return of the goods, that the Statute of Limitations ran from the date of the demand and refusal, and not from that of the sale, inasmuch as the plaintiffs, in such a case, though entitled, if they had discovered the sale, to sue immediately for a conversion of the goods, were also entitled to elect to sue upon the breach of the bailee's duty in the ordinary course by the refusal to deliver up on request (n). In the case of a continuing trespass, either in relation to property (0) or person (p), a fresh cause of action arises from day to day, so that the statute would only begin to run from the last day, and not from the commencement of the trespass. Where there is fraud, the statute only begins to run from the time when the wrongful act was, or by reasonable diligence might have been, discovered (q). As a general rule, the law of limitation is a law relating to procedure, having reference only to the lex fori; therefore when an English Court entertains a cause of action which originated in a foreign country, it applies the Statutes of Limitation in the same manner as if the cause of action arose in England (r). By the Rules of the Supreme Court, 1883 (s), a cause shall not abate by reason of the marriage, death, or bankruptcy of any of the parties, if the cause of action survive or continue. Chap. I. Action does reason of death not abate by or marriage. actions in res pect of same Damage to goods and injury to the person, although they have Separate been occasioned by one and the same wrongful act, are infringements of different rights, and give rise to distinct causes of wrongful act. action; and therefore the recovery in an action of compensation for the damage to the goods is no bar to an action subsequently commenced for the injury to the person (†). (n) Wilkinson v. Verily, L. R. 6 C. P. 206; 40 L. J. C. P. 141. Spackman v. Foster, 11 Q. B. D. 99; 52 L. J. Q. B. 418. (0) Whitehouse v. Fellowes, 10 C. B. N. S. 765; 30 L. J. C. P. 305. (p) Hardy v. Ryle, 9 B. & C. 608. (q) Ecclesiastical Coms. v. N. E. Rail. Co., 4 Ch. D. 845. As to period of limitation for actions brought in respect of things done under local and personal acts, see 5 & 6 Vict. c. 97, s. 5. (r) Ruckmaboye v. Lalloobhoy Motti chund, supra; Pardo v. Bingham, L. R. 4 (s) Order xvii. r. 1. (t) Brunsden v. Humphrey, 14 Q. B. D. 141 (C. A.); Mitchell v. Darley Main Colliery Co., 14 Q. B. D. 125 (C. A.), overruling Lamb v. Walker, 3 Q. B. D. 389. 16 Chap. II. Definition of assault. Battery. CHAPTER II. TORTS AFFECTING THE PERSON. SECTION I.-ASSAULT. EVERY person is entitled to the enjoyment of his personal security and liberty, and any infringement of that right is a trespass on his person, for which the trespasser is liable in damages, unless he can plead a legal justification. A trespass to the person may be committed by assault, battery, or imprisonment. An assault signifies an injury offered to a person, and may be committed by any act or gesture (a) from which an intention to commit a battery may be inferred (b). Thus holding up a hand or stick in order to strike a person who is within reach thereof at the time constitutes an assault (c) ; where, however, the person threatened is so far distant from the person using the threatening gesture as to preclude immediate contact, there is no assault (d). To ride after a person and oblige him to run away to avoid being beaten (e), or to upset a chair or carriage in which he is sitting (ƒ), is an assault. An assault is usually combined with a battery (g), which is the actual doing of the injury, be it ever so small (h), in an angry or revengeful or rude and insolent manner, as by spitting in a man's face (i), jostling him out of the way, throwing water upon him (ii), or forcibly cutting his hair (j). Where a touch was (a) It is laid down in Blackstone's Commentaries that a mere verbal threat, if followed by actual damage, through fear thereof, as by interruption of a man's business, will support an action of trespass (3 Bl. Com. 120). (b) Genner v. Sparkes, 1 Salk. 79; Read v. Coker, 13 C. B. 850. The Feudists define assault thus, "Assultus est impetus in personam vel locum, sive hoc pedibus fiat, vel equo, aut machinis vel quacunque alia re assiliatur.”. Zasius, de Feud. p. 88. (c) Stephens v. Myers, 4 C. & P. 349. (d) Pollock, C. B., Cobbett v. Grey, 4 Ex. 744. (c) Martin v. Shopee, 3 C. & P. 373. (f) Hopper v. Reeve, 7 Taunt. 700. (g) See the old form of pleading, where the declaration usually alleged that "the defendant assaulted and beat the plaintiff" (Bullen and Leake, Prec. Pleading, 2nd ed. p. 353). A battery always includes an assault. (h) Rawlings v. Till, 3 M. & W. 28. given by a constable's staff merely for the purpose of engaging the Chap. II. plaintiff's attention, it was held no action for assault would lie (k). where consent. An assault must be an act done against the will of the person No assault assaulted, it cannot be said that a person has been assaulted by his own permission (1). Thus, if a person join in any violent sport, such as football, and he receives a damaging kick or blow from one of the players in the course of the game, no action would lie at the suit of the sufferer, as he would be considered as a consenting party to such rough usage from the fact of his having joined in the sport. A touch or stroke in jest is not an assault (m). If the assault complained of can be shown to be the result of inevitable accident or of some agency over which the defendant had no control, so as not to be the defendant's act, he will not be responsible (n). An action for assault will lie, though the act complained of was not wilful, but only negligent. Thus if A. in endeavouring to hit B., hits C. by mistake, an action will lie against A., at the suit of C. (o). servant. A master is liable for an assault committed by his servant Assault by when acting within the scope of his employment (p). An action will lie against a corporation for an assault committed by one of Corporation. their officers (q). Where an assault has been committed on the wife, the wife can Assault on wifenow sue alone, without joining her husband as plaintiff (r). In a recent case, where a wife, living separate from her husband, brought an action for an assault committed upon her during coverture, it was held that the Married Women's Property Act, 1882, enabled the wife to sue alone in respect of an assault committed upon her during coverture prior to the passing of the Act (t). A wife after being divorced from her husband cannot sue him for an assault committed upon her during coverture (u). (k) Wiffin v. Kincaid, 2 B. & P. N. R. 472; Coward v. Baddeley, 4 H. & N. 481; 28 L. J. Ex. 261. (1) Per Patterson, J., Christopherson v. Bare, 11 Q. B. 477. (m) Williams v. Jones, Hardw. 301. (n) Gibbons v. Pepper, 1 Ld. Raym. 38; Hall v. Fearnley, 3 Q. B. 919; Wake man v. Robinson, 1 Bing. 213. (0) Weaver v. Ward, Hob. 134; Hopper v. Reeve, 7 Taunt. 698. (p) Seymour v. Greenwood, 30 L. J. |
