tion of itself was well calculated to increase her terror. It was fitting, therefore, that the jury should be told that intoxication was an aggravation of the tort.

Battery-Intention on Part of Assailant.

BULLOCK v. BABCOCK.

3 Wendell 391 (N. Y.). 1829.

This was an action of trespass, assault, and battery. [The defendant, who at the time of the accident was about twelve years of age, in shooting an arrow from a bow struck the plaintiff, a boy between nine and ten years old, and put out his eye. The boys were schoolmates, and there had been no quarrel between them. The defendant and another boy had been shooting at a mark. Some remark had been made by the plaintiff, and defendant had said, "I will shoot you." The plaintiff then ran into the schoolroom and hid behind a fire-screen. The defendant followed, and saying, "See me shoot that basket," discharged his arrow. There were a number of boys in the room. The basket was on a desk near the fire-screen. The plaintiff raised his head as the arrow was discharged and was hit in the eye. The sight of the eye that was struck was destroyed and the sight of the other impaired. The plaintiff brought this action within one year after attaining his majority.]

By the Court, MARCY, J.

The act of the defendant in shooting the arrow in the school-room, where there were a number of scholars, was not lawful; for, if the act in itself was lawful, and there was not a proper care to guard against consequences injurious to others, the actor must be held responsible for such consequences.

In ordinary cases, if the injury is not the effect of an unavoidable accident, the person by whom it is inflicted is liable to respond in damages to the sufferer. Where, in shooting at butts, the archer's arrow glanced and struck another, it was holden to be a trespass. Year-Book, 21 Hen. VII. fol. 28. So where a number of persons were lawfully exercising themselves at arms, one, whose gun accidentally went off, was held liable in trespass for the injury occasioned by the accident. Weaver v. Ward,

Hob. 134. Where, in a dark night, the defendant got on the wrong side of the road, and an injury ensued to the person of the plaintiff, trespass for the damage was sustained. Leame v. Bray, 3 East, 593. It is decided in the case of Wakeman v. Robinson, 1 Bing. 213, if the accident happened entirely without the fault of the defendant, or any blame being imputable to him, an action will not lie. In that case, the blame imputable to the defendant was, that, his horse being young and spirited, he used him without a curb rein; that in his alarm he probably pulled the wrong rein; and that he ought to have continued in a straight course.

The blame fairly imputable to the defendant, it will be perceived, must have been slight indeed, as it certainly was in the case of the injury done by the glancing of the arrow when shooting at a mark (a lawful act), and by the accidental discharge of the musket at a training; and yet, in each of these cases, an action for the injury was maintained.

Unless a rule is to be applied to this case different from that applicable to a transaction between adults, the proof was most abundant to charge the defendant with the consequences of the injury.

Infants, in the same manner as adults, are liable for trespass, slander, assault, etc. Where infants are the actors, that might probably be considered an unavoidable accident which would not be so considered where the actors are adults; but such a distinction, if it exists, does not apply to this case. The liability to answer in damages for trespass does not depend upon the mind or capacity of the actors; for idiots and lunatics, as we see by the case reported in Hobart, are responsible in the action of trespass for injuries inflicted by them.

Assault Defendant Stops Before Striking Plaintiff.

STEPHENS v. MYERS.

4 C. & P. 349, 19 E. C. L. 548 (Eng.). 1830.

TINDAL, C. J., in his summing up, said: It is not every threat, when there is no actual personal violence, that constitutes an assault; there must, in all cases, be the means of carrying the

threat into effect. The question I shall leave to you will be, whether the defendant was advancing at the time, in a threatening attitude, to strike the chairman, so that his blow would almost immediately have reached the chairman if he had not been stopped; then, though he was not near enough at the time to have struck him, yet, if he was advancing with that intent, I think it amounts to an assault in law. If he was so advancing that, within a second or two of time, he would have reached the plaintiff, it seems to me it is an assault in law. If you think he was not advancing to strike the plaintiff, then only can you find your verdict for the defendant; otherwise you must find it for the plaintiff, and give him such damages as you think the nature of the case requires.

Assault-Threatening a Battery on an Unauthorized Condition. UNITED STATES v. RICHARDSON.

5 Cranch C. C. 348, Fed. Cas. No. 16,155 (U. S.). 1837.

Indictment for an assault upon one Susan Shelton.

The evidence was that the defendant came into the house where Mrs. Shelton was sitting at a window. He was armed with a musket and a club; and raising the club over her head, in an attitude for striking, and within striking distance, said to her that if she said a word (or if she opened her mouth) he would strike her; and this without any provocation on her part.

Mr. Bradley and Mr. Hoban, for the defendant, contended that this was not, in law, an assault; that there can be no assault without a present intent to strike; and his saying, "if she opened her mouth," showed that he had not such a present intent; and they cited the old case, "if it were not the assizes, I would stab you.

But the COURT said that he had no right to restrain her from speaking; and his language showed an intent to strike upon her violation of a condition which he had no right to impose. Suppose a stranger comes to my house armed, and raises his club over my head, within striking distance, and threatens to beat me unless I will go out of and abandon my house; surely that would be an assault. So, if a highwayman puts a pistol to my breast, and threatens to shoot me unless I give him my money;

this would be evidence of an assault, and would be charged as such in the indictment.

Assault Purpose to Assault Negatived.

TUBERVILLE v. SAVAGE.

1 Modern Reports 3 (Eng.). 1669.

Action of assault, battery, and wounding. The evidence to prove a provocation was, that the plaintiff put his hand upon his sword and said, "If it were not assize-time, I would not take such language from you." The question was, if that were an assault? The court agreed that it was not; for the declaration of the plaintiff was that he would not assault him, the judges being in town; and the intention as well as the act makes an assault.

Therefore, if one strike another upon the head or arm or breast in discourse, it is no assault, there being no intention to assault; but if one, intending to assault, strike at another and miss him, this is an assault; so if he hold up his hand against another in a threatening manner and say nothing, it is an assault. In the principal case the plaintiff had judgment.

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False Imprisonment-Essentials.

GOODELL v. TOWER.

77 Vt. 61, 58 Atl. 790. 1904.

TYLER, J. This action is trespass for false imprisonment. It is contended in defendant Hastings' behalf that he did not restrain the plaintiff of his liberty. The trial court found that, having the complaint and warrant signed, respectively, by the other two defendants, he met the plaintiff, and stopped him by speaking to him as he was driving along on a business errand, read the paper to him, and told him he would have to go with him (Hastings); that the plaintiff told the officer that he would have to get some one to take his team; that the officer permitted him to do his errand, but directed him to return as soon as he could; that the plaintiff then drove

along; that Hastings became impatient, and went to meet him, turned in behind the plaintiff's team, and followed him to the village; that he went to the place of trial with the plaintiff, delivered the paper to the justice, and informed him that the plaintiff was present; that this was all that Hastings did besides making his return upon the warrant; that he understood that the plaintiff was in his custody.

The action of the officer constituted a false imprisonment. It was not necessary that he should lay his hands on him. It was sufficient that the plaintiff was within his power and submitted to the arrest. Mowry et al. v. Chase, 100 Mass. 79. Every restraint upon a man's liberty is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner in which the restraint is effected. 2 Kent's Comm. 26. And see Pike v. Hanson, 9 N. H. 491, where it was held that words may constitute an imprisonment, if they impose a restraint upon a person, and he accordingly is restrained and submits.

False Imprisonment Restraint Induced by False Representation.

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PAYSON v. MACOMBER.

3 Allen 69 (Mass.). 1861.

CHAPMAN, J. The third count is for abduction and false imprisonment. The evidence tended to show that, by representations and threats of prosecution, and by paying her expenses, the defendant induced her [the plaintiff] to go to Salem and remain there for a while and that she became satisfied that he was deceiving her, and then returned and testified in the cause [from which defendant was trying to secure plaintiff's absence], which was a suit for divorce in favor of Mrs. Pulsifer against her husband. But it did not tend to show that the defendant used threats or force, and without this the plaintiff has no cause of action. It is at most a case where she yielded voluntarily to the defendant's misrepresentations and threats of a criminal prosecution against her, and absented herself from court and from her home for a time.

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