CHAPTER VI.

TRESPASS TO THE PERSON.

ANY direct interference with the liberty or person of another, if it be either intentional or the result of negligence, is a trespass to the person. If one man wounds or imprisons another or strikes or attempts to strike him, the latter has prima facie a good cause of action, even though he has sustained no physical injuries; he need not prove that the other intended to injure him or had any spite or malice against him. But if the defendant can show that the act complained of was the result neither of any negligence nor of any intentional trespass on his part, the plaintiff cannot

recover.

Where one man receives physical injuries in consequence of some negligence on the part of another, but there is no immediate physical contact between the two and no direct application of force by one to the other, the action, if any, is one of negligence; such actions are dealt with in the next chapter.

"If the act that does an injury is an act of direct force, trespass is the proper remedy (if there is any remedy)." The injury must be the immediate and not the consequential result of the defendant's act. Thus, a man commits a trespass if he strikes or shoots another, or hits him with a stick, or rides over him, or drives any vehicle against him. But if he leaves a grating in the pavement unfastened, and a passer-by treads on it and is injured in consequence, the latter must sue for negligence, and not in trespass; for here the injury is not a necessary result of the defendant's neglect, and the damage is therefore consequential. But where the injury sustained, though consequent upon the defendant's

1 Per Bramwell, B., in Holmes v. Mather (1875), L. R. 10 Ex. at p. 268. 2 Leame v. Bray (1803), 3 East, 593.

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conduct, was caused by forces over which he had no control, and was not the result of negligence, there is no wrongful act on his part and consequently no liability either in negligence or trespass.'

The defendant's horses, while being driven by his servant in the public highway, ran away and became so unmanageable that the servant could not stop them, but could to some extent guide them. The defendant, who sat beside his servant, was requested by him not to interfere with the driving and complied. While trying to turn a corner safely, the servant guided them so that, without his intending it, they knocked down and injured the plaintiff, who was in the highway. The plaintiff having sued the defendant for negligence and in trespass, the jury found that there was no negligence in any one. It was held that, even assuming the defendant to be as much responsible as his servant, no action was maintainable ; for since the servant had done his best under the circumstances, the act of alleged trespass in giving the horses the direction towards the plaintiff was not a wrongful act.2

The defendant, who was one of a shooting party, fired at a pheasant. One of the pellets from his gun glanced off the bough of a tree and accidentally wounded the plaintiff, who was engaged in carrying cartridges and game for the party. The plaintiff framed his Statement of Claim in negligence. The jury found that there was no negligence on the part of the defendant, and it was clear from the facts that the injury was not intentional. It was, however, contended that, even in the absence both of intention and negligence, an action of trespass would lie, but Denman, J., overruled this contention and gave judgment for the defendant.1

Such trespass may be either an assault,3 a battery,3 an arrest, or an imprisonment.

(i.) An action of assault.-Any attempt to strike another made by one who is near enough to strike him is an assault, although no blow was actually received. So is any "threat of violence exhibiting an intention to assault, if coupled with a present ability to carry the threat into execution." An assault, however, must be an act done against the will of the party assaulted.

"I own I have considerable doubt whether any mere threat not in the slightest degree executed, that is, a person saying to another, 'If you do not

1 Stanley v. Powell, [1891] 1 Q. B. 86.

Holmes v. Mather (1875), L. R. 10 Ex. 261.

3 We have already dealt at length with these offences, which are also crimes. See ante, pp. 316-325.

Per Jervis. C. J., in Read v. Coker (1853), 13 C. B. at p. 860; and see R. v. Duckworth, [1892] 2 Q. B. 88.

move, I shall use such and such force,' is an assault. My impression is that it is not. I do not know at what distance it is necessary for the party to be. No doubt, 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." 1 "If a sword is flourished at such a distance that it would be impossible to hurt any person, it would not be an assault."2

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(ii.) An action of battery.-A battery is the unlawful beating of another-the least touching of another's person wilfully or in anger. Every man's person is sacred, and the law protects it from the least interference by another. Every battery, therefore, includes an assault.

As we have already seen, it will be a defence to any action of trespass to the person, if the defendant can show that the injury done to the plaintiff was the result neither of any negligence nor of any intentional trespass on his part. "If the circumstance, which is specially pleaded in an action of trespass, do not make the act complained of lawful and only make it excusable, it is proper to plead this circumstance in excuse; and it is in this case necessary for the defendant to show not only that the act complained of was accidental (.., unintentional), but likewise that it was not owing to neglect or want of due caution."4 Hence, if the injuries were caused by a pure accident, the plaintiff cannot

recover.

If the defendant is absolutely free from all blame in the matter, and was endeavouring to do what was the best to be done under the circumstances when the collision occurred, no action will lie against him. "For the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid." 5

If an accident happens owing to the defendant driving his carriage at night on the wrong side of the road, this is evidence from which a jury may infer negligence, unless they be satisfied that the night was so dark that it was impossible to distinguish one side of the road from the other.

1 Per Pollock, C. B., in Cobbett v. Grey (1850), 4 Exch. at p. 744.

2 Per Pollock, C. B., in Allsop v. Allsop (1860), 29 L. J. Ex. at p. 316. 3 See 3 Bla. Com. 120.

Bacon's Abridgment, Trespass I., p. 706, cited with approval by Denman, J., in Stanley v. Powell, [1891] i Q. B. at p. 93.

5 Per Bramwell, B., in Holmes v. Mather (1875), L. R. 10 Ex. at p. 267. 6 Leame v. Bray (1803), 3 East, 593, as explained by Denman, J., in Stanley ▼. Powell, [1891] 1 Q. B. at p. 92.

Or the defendant may be able to show that it was by the consent of the plaintiff that he laid hands upon him.

Thus, no action for battery would lie for damages received in a boxing match or a game of football, unless the plaintiff could show that the defendant in causing the injury complained of had flagrantly violated the rules which governed the match or game, and under which the plaintiff had consented to take part in the contest.

Again, the defendant may be able to show circumstances which justify the battery of which the plaintiff complains. Thus it may be that the plaintiff first struck the defendant; the defendant would be entitled to defend himself from such attack, but not to continue his reprisals after the plaintiff has desisted, for to do so would be to assume the offensive. So in defence of goods or possessions a man may justify laying hands upon another, who wrongfully seeks to deprive him of them, provided he does not use more force than is necessary for the purpose; and so may his servant.1 But a mere "apprehension of danger to either his goods or his person" will not be sufficient. Again, a parent or master is justified in giving moderate correction to his child, his scholar or his apprentice. Other circumstances may justify an act which is prima facie a battery, as where some person in authority is compelled to use some degree of force to maintain. order or to prevent a breach of the peace.

Thus, the captain of a vessel is justified in committing an assault upon a passenger where such assault is necessary for the preservation and maintenance of good order and discipline on board.3 Similarly a churchwarden or beadle may, in the exercise of his office, seize and turn out of church a man who is disturbing the congregation by improper behaviour during the performance of divine service, provided no unnecessary violence be employed. A coroner has the power to order the expulsion of any one who in his opinion is hindering the proceedings of his Court. So had a revising barrister. But where a revising barrister in 1875 ordered the expulsion of a person who had in 1874 wilfully withheld material evidence

1 Eastern Counties Ry. Co. v. Broom (1851), 6 Exch. 314.

Per Blackstone, J. (dissenting), in Scott v. Shepherd (1773), 1 Smith. L. C., 12th ed. at p. 517.

Noden v. Johnson (1850), 16 Q. B. 218.

Burton v. Henson (1842), 10 M. & W. 105; and see Butler v. Manchester, &o., Ry. Co. (1888), 21 Q. B. D. 207; Harrison v. Duke of Rutland, [1893] 1 Q. B. 142. 5 Garnett v. Ferrand (1827), 6 B. & C. 611.

6 County Voters Registration Act, 1865 (28 & 29 Vict. c. 36), s. 16.

in order to prevent his cousin establishing a claim as a freeholder, and who in 1875 produced the evidence in order to prevent him claiming as a leaseholder, it was held that the expulsion was wrongful; such conduct was not an interruption of the proceedings of the Court then being held in 1875.1

Again, if one of the public, who has been invited to attend a public meeting, disturbs the proceedings and is requested to leave the room, he becomes a trespasser if he refuses to do so and may be gently expelled. Where any one comes into a house and disturbs the peace of the family without actually committing any assault, the master of the house may turn him out, or call a policeman to do so." 3

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Railway companies are often authorised by their statutes to eject from a railway carriage any person who has broken one of their by-laws and refuses to pay the penalty demanded of him. But the by-law must be a reasonable one.1

It is also a statutory defence to a civil action for assault that the plaintiff summoned the defendant for the same assault before justices, who dismissed the complaint and gave the defendant a certificate to that effect; or that the defendant was convicted and paid the fine imposed, and received a certificate of conviction."

(iii.) Malicious Arrest.-An action lies at common law against any man who puts the process of the law in motion. against another maliciously and without reasonable and probable cause. The most familiar instance of the application of this principle is the action for malicious prosecution, which will be dealt with later on; another instance is the action for malicious arrest, with which we must deal briefly here, as it involves a trespass to the person."

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If a debtor is about to leave the country, any creditor can apply to a judge for an order to arrest him under section 6 of 32 & 33 Vict. c. 62. To obtain this order he must satisfy the judge by evidence on oath that he has a good cause of action against the debtor to the amount of £50 or upwards, that there is probable cause for believing that the debtor is

1 Willis v. Maclachlan (1876), 1 Ex. D. 376.

2 See the Public Meeting Act, 1908 (8 Edw. VII. c. 66).

8 Per Lord Campbell, C. J., in Shaw v. Chairitie (1850), 3 Car. & K. at p. 25. Chilton v. London and Croydon Ry. Co. (1847), 16 M. & W. 212; Eastern

Counties Ry. Co. v. Broom (1851), 6 Exch. 314.

16 Vict. c. 30, s. 1; 24 & 25 Vict. c. 100, ss. 42-46.

6 See post, p. 546.

As to the malicious arrest of a ship by Admiralty process, see The Walter D. Wallet, [1893] P. 202.