several part owners of a chattel suing by himself in trover is entitled to damages to the value of his share (a). The disability of one of the parties in whom a joint right of Disability of joint action vests does not prevent the statute running, for the party plaintiff. not under disability may use the name of the other to sue, just as he may release or accept satisfaction on his behalf (b). (a) Addison v. Overend, 6 T. R. 766 ; Sedgworth v. Overend, 7 T. R. 279; Bloram v. Hubbard, 5 East, 407. See above, p. 57. See, however, Broadbent v. Ledward, 11 A. & E. 209. This limitation of damage applies where the part owner seeks to recover on the (b) Perry v. Jackson, 4 T. R. 516. Battery. Hostile intent. CHAPTER IX. TRESPASS TO THE PERSON. ! THE security of a man's person, which is the most elementary of civil rights, may be directly attacked by actual violence inflicted or menaced, or by a deprivation of liberty. There are accordingly three kinds of trespass to the person--battery, assault, and false imprisonment. 1. Any physical damage to the person immediately caused by the act of a wrongdoer may amount to a battery. Thus, of course, anything that can be called a blow, whether inflicted with hand, weapon, or missile, is a battery. It is a battery to throw water over a man or to spit in his face (a). It is a battery to overturn the chair in which a man is sitting (b). In Dodwell v. Burford (c), the defendant struck the horse which the plaintiff was riding. The latter having been thrown and injured, recovered in this form of action (d). It has been already pointed out that a trespass is a direct exercise of force to the person or property of another, either negligently or wilfully. If one man fires a gun carelessly and hits another, it is a battery, though he never designed the shot to touch him (e). With regard to those cases where the act is done on purpose, it is frequently said that in order to constitute a battery there must be a hostile intent. "The least touching of another in anger is a battery" (f). If a tap be given on the shoulder for the purpose of effecting an arrest, and the arrest be (a) Pursell v. Horn, 8 A. & E. 602; Reg. v. Cotesworth, 6 Mod. 172. (d) It is said that to forcibly take a v. Goddard, 2 Salk. 640. (e) Weaver v. Ward, Hob. 134; see Leame v. Bray, 3 East, 593. See above, pp. 8-9. (f) Per Holt, C.J., Cole v. Turner, 6 Mod. p. 149. 66 unlawful, the mere tap constitutes a battery (a). "If two or more meet in a narrow passage, and without any violence or design of harm, one touches the other gently, it will be no battery." But "if any of them use violence against the other to force his way in a rude and inordinate manner it will be a battery, or any struggle about the passage to that degree as may do hurt will be a battery" (b). 'If one strike another upon the hand or arm, or breast in discourse, it is no assault, there being no intention to assault" (c). On principle, however, it would seem that the true Implied test is not whether a hostile intent on the part of the defendant, but whether an absence of consent on the part of the plaintiff, can be inferred (d). If one man goes on to the land of his neighbour in a reasonable and peaceable manner for the purpose of speaking to him, it is no trespass, because, although there is no express permission, yet leave and licence may be inferred. In the same way, it may be said, that if one man touches another for the purpose of calling his attention, there is an implied assent to the act which makes it no battery. It is to be observed, however, that under the old forms of pleading a distinction with regard to the defence of consent was made between a trespass to the person and other kinds of trespass. A defendant in trespass to land or goods who relied upon this defence, had to confess and avoid by a plea of leave and licence; (a) Rawling v. Till, 3 M. & W. 28. (b) Per Holt, C.J., Cole v. Turner, 6 Mod. p. 149. (c) Per cur. Tuberville v. Savage, 1 Mod. p. 3. (d) There is perhaps no great practical difference between the two ways of stating the law, but the distinction may be material. In Coward v. Baddeley (4 H. & N. 478), the plaintiff sued for an assault and false imprisonment. The defendant justified on the ground that he had been assaulted by the plaintiff. The facts were that the defendant had been engaged in extinguishing a fire, and the plaintiff came up and told him he was managing the hose improperly. The defendant told the plaintiff to mind his own business. The plaintiff then put his hands on the defendant's shoulder and turned him round, pointing out consent. How far consent a defence. but in trespass to the person he might prove his case under the plea of not guilty, inasmuch as it was considered a contradiction in terms to speak of an assault by consent (a). It has been doubted whether the maxim of volenti non fit injuria applies to all cases of trespass to the person. If two men fight together by agreement for a prize or otherwise and without any animosity against each other, simply for the purpose of testing which is the better boxer, they are clearly both consenting parties to the injuries which they mutually inflict on each other.. Nevertheless, their conduct may amount to a breach of the peace, and if so, they may be convicted of an assault (b). This is quite in accordance with the general principles of the criminal law, for the gist of the matter being the injury to the public peace, the consent of the parties is immaterial. It has further been ruled at nisi prius that for an action founded on a battery criminal in its nature, the defence of consent is not available (c). And the same opinion is expressed in Reg. v. Coney. "The true view is, I think, that a blow struck in anger or which is likely or intended to do corporal hurt is an assault, but that a blow struck in sport and not likely nor intended to cause bodily harm is not an assault, and that an assault being a breach of the peace and unlawful the consent of the person struck is immaterial" (d). It is not, however, in every case that a criminal offence causing damage to another is a ground of action. Thus, a forcible entry is an indictable offence, but if the party so entering has the right of possession he is not, it would seem, civilly responsible (e). Nor in the case under consideration does there seem any reason why the plaintiff should be in a better position because he was a party to the crime. If two men are guilty of indecent conduct towards each other they commit a misdemeanour, but it would seem strange to allow them for such conduct reciprocally to bring actions. (a) Christopherson v. Bare, 11 Q. B. 473. (b) Reg. v. Coney, 8 Q. B. D. 534. (c) Boulter v. Clerk, Buller N. P. p. 16. See, too, Matthew v. Ollerton, Comb. 218. (d) Per Cave, J., 8 Q. B. D. p. 539. See, however, per Hawkins, J., ibid., p. 553. (e) See per Parke, B., Harvey v. Brydges, 14 M. & W. p. 442. See below, pp. 287-8. A consent induced by the fraud of the person doing the act is Consent induced by a mere nullity, where the misapprehension of the consenting fraud. party goes to the root of the whole transaction, and alters the whole nature and quality of the act done. Thus, where a girl allowed a man to have carnal knowledge of her under the belief that she was submitting to a surgical operation, it was held that he was guilty of a rape (a). But a mere mistake as to the effect and consequences of the act done does not annul the assent so as to make the act an assault. If one man administers a poison to another who takes it in ignorance of its noxious character, this is no trespass. The same rule applies where contagion is conveyed by physical contact. If there is consent to the contact the remedy for the wrong, however great, cannot be obtained in this form of action (b). 2. An assault may be defined as an attempted battery. That Assault. is to say, there must be an overt act indicating an intention to commit a battery, coupled with the capacity of carrying that intention into effect (c). There are obvious reasons why in dealing with security of the person the law should treat the mere attempt as a substantive wrong. "If you direct a weapon, or if you raise your fist within those limits which give you the means of striking, that 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" (d). It is an assault to present a gun in a hostile manner within shooting distance, although it may be at half-cock, because the cocking is a momentary operation (e). There may be an assault although the defendant is not within striking distance, as for instance, if he makes a rush at the plaintiff but is stopped before he is near enough to deal a blow (f). In Mortin v. Shoppee (g), the defendant pursued the plaintiff with an uplifted whip intending to strike him, but the latter made his escape, and it was held an assault. A mere gesture, however menacing, is not action (a) R. v. Flattery, 2 Q. B. D. 410. (c) Read v. Coker, 13 C. B. 850. Grey, 4 Ex. p. 744. (f) Stephens v. Myers, 4 C. & P. 349. |