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may be an assault; but if you simply say, at such a distance as that at which you cannot commit an assault, 'I will commit an assault,' I think that is not an assault." 25 Instances of an assault on a man are: "striking at him with or without a weapon, or presenting a gun at him, at a distance to which a gun will carry, or pointing a pitchfork at him, standing within the reach of it, or holding up one's fist at him, or drawing a sword and waving it in a threatening manner.' Sometimes it is rather the fear of the violence, or battery, on the part of the plaintiff than the ability to commit the battery on the part of the defendant that is construed to make an act an assault. On this theory it is held to be an assault to present an unloaded firearm at one.27 "It is not the secret intent of the assaulting party, nor the undisclosed fact of his ability or inability to commit a battery, that is material, but what his conduct and the attending circumstances denote at the time to the party assaulted."' 28

7. Same subject.-It is held to be an assault if a man makes a rush at another with apparent intention of striking him, but is stopped before he is actually within striking distance.29 Likewise it is an assault if the defendant pursues the plaintiff with an uplifted whip, although the latter makes his es

25 Pollock, C. B., in Cobbett v. Grey, 4 Exch. 729 (Eng.).

26 Bacon, Abr., Assault and Battery,

A.

27 R. v. St. George, 9 C. & P. 483 (Eng.); Beach v. Hancock, 27 N. H. 223. 28 Commonwealth v. White, 110 Mass. 407.

29 Stephens v. Myers, 4 C. & P. 349, 19 E. C. L. 548 (Eng.), LEADING ILLUSTRATIVE CASES.

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cape.30 Threatening to commit a battery, and showing an intention to do so, if the plaintiff breaks a condition which the defendant had no right to impose, as that the plaintiff should not open his mouth to speak, will be regarded as an assault.31 Throwing a hatchet at a woman who has put her head out of a window, although she is not hit, is an assault.3 Intruding on the privacy of a woman in her sleeping room is an assault.33 Striking a horse which a person is riding or driving may be an assault on that person. On the other hand, if the defendant's words or acts negative an intention to commit a battery, the act complained of cannot be held to be an assault. The classical case is Tuberville v. Savage,35 where, it being the time of the assizes, the defendant put his hand to his sword and said, “If it were not assize time I would not take such language from you." It was held that there was no assault. And in order to constitute an assault, there must be some display of force, some movement towards a threatened battery. Accordingly one who, in order to obstruct the way, does nothing more than stand passive like a wall is not liable for an assault.36

8. Same subject-Rationale of action for assault. -The theory on which a person is protected from

so Martin v. Shoppee, 3 C. & P. 373, 14 E. C. L. 616 (Eng.).

31 United States v. Richardson, 5 Cranch C. C. 348 (U. S.), Fed. Cas. No. 16,155, LEADING ILLUSTRATIVE CASES.

32 Y. B. 22 Ass. 99, pl. 60 (Eng.).

33 Newell v. Whitcher, 53 Vt. 589.

34 Marentille v. Oliver, 2 N. J. L. 358.

35 1 Mod. 3 (Eng.), LEADING ILLUSTRATIVE CASES.

36 Innes v. Wylie, 1 C. & K. 257, 47 E. C. L. 257 (Eng.).

assault is well explained in the following passage from the opinion of the court in a leading case: "One of the most important objects to be attained by the enactment of law 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.

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9. False imprisonment.-"Every confinement of the person is an imprisonment, whether it be in the common prison or in a private house, or in the stocks, or even by forcibly detaining one in the public streets."38 The unlawful application of such restraint is the tort of false imprisonment. This is a distinct wrong, although it is also naturally coupled with assault and battery. The deprivation of liberty for the time being must be complete. A partial interference with freedom of locomotion does

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

38 3 Blackstone, Commentaries, p. 127.

not amount to an imprisonment. If a man is in a house, it is an imprisonment to prevent him leaving a particular room.3 39 If a warrant for a man's apprehension is shown to him, and he thereupon for the time submits himself to the officer, he becomes a prisoner though his person is not touched.0 But if a road is blocked so that a person is compelled to retrace his steps and go by another route, he is not entitled to recover for a false imprisonment.11

10. Same subject.-While actual physical contact, or incarceration, is not necessary for imprisonment, some form of coercion, or exercise of superior force, seems essential.42 "It is the fact of compulsory submission which brings a person into imprisonment; and impeding and threatened physical violence, which to all appearance can only be avoided by submission, operates as effectually, if submitted to, as if the arrest had been forcibly accomplished without such submission. There are cases in which a party who does not submit cannot be regarded as arrested until his person is touched; but when he does submit no such necessity exists." 43 One who is induced, by false representations, to remain at a particular place, cannot be held to be imprisoned." But to tell one on a ferry that he shall not leave until a certain demand is paid, is an imprisonment if one submits through fear, though the

39 Warner v. Riddiford, 4 C. B. (N. S.) 180 (Eng.).

40 Grainger v. Hill, 4 Bing. N. C. 212 (Eng.).

41 Bird v. Jones, 7 Q. B. 742 (Eng.).

42 Goodell v. Tower, 77 Vt. 61, 58 Atl. 790, LEADING ILLUSTRATIVE Cases. 43 Brushaber v. Stegemann, 22 Mich. 199.

44 Payson v. Macomber, 3 Allen 69 (Mass.), LEADING ILLUSTRATIVE CASES.

person is not touched and no actual violence offered.45 On the other hand, a boy had his foot crushed under a train, and, against the boy's protest, the train crew took him to a hospital, and there, in the presence of his uncle, his foot was amputated; and in an action for false imprisonment, it was held that there was no liability.16 It must appear that the restraint of freedom was against the will of the person alleged to be imprisoned." And false imprisonment may consist in preventing a person from going in any direction he sees proper, without detaining him in any particular spot.48 Thus, it was held that one is imprisoned who is shadowed constantly for two weeks by detectives, so that, although he has a qualified freedom, his movements are at all times subject to the control and direction of those who are shadowing him.19

45 Smith v. State, 7 Humph. 43 (Tenn.).

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46 Ollet v. Pittsburgh, C. C. & St. L. Ry. Co., 201 Pa. St. 361, 50 Atl. 1011. 47 Herring v. Boyle, 1 C. M. & R. 377 (Eng.); Wood v. Cummings, 197 Mass. 80, 83 N. E. 318, LEADING ILLUSTRATIVE CASES.

48 Johnson v. Tompkins, 13 Fed. Cas. No. 7416.

49 Fotheringham v. Adams Express Co., 36 Fed. 252, LEADING IllustraTIVE CASES.

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