Protection of justices, constables, &c. Justices of the peace (u) and constables (v) are protected by general enactments that actions against them for anything done in the execution of their office must be brought within six months of the act complained of.

The enforcement of statutory duties is often made subject by the same Acts which create the duties to a short period of limitation. These provisions do not really belong to our subject, but to various particular branches of public law.

Exception of concealed fraud. The operation of the Statute of Limitation is further subject to the exception of concealed fraud, derived from the doctrine and practice of the Court of Chancery, which, whether it thought itself bound by the terms of the statute, or only acted in analogy to it (x), considerably modified its literal application. Where a wrong-doer fraudulently conceals his own wrong, the period of limitation runs only from the time when the plaintiff discovers the truth, or with reasonable diligence would discover it. Such is now the rule of the Supreme Court in every branch of it and in all causes (y).

(u) 11 & 12 Vict. c. 44, s. 8. (v) 24 Geo. II. c. 44, s. 8.

(z) See Q. B. Div. 68, per Brett L. J. (y) Gibbs v. Guild (1882), 9 Q. B. Div. 59, 51 L. J. Q. B. 313, which makes the

equitable doctrine of general application without regard to the question whether before the Judicature Acts the Court of Chancery would or would not have had jurisdiction in the case.

Exception of concealed fraud. The American authorities agree with the text, vide Hickman v. Hickman, 46 Mo. App. 496; Bailey v. Glover, 21 Wall. 342; Johnson v. Roe, 1 Fed. Rep. 692; Amy v. Watertown No. 2, 130 U. S. 320; Michoud v. Girod, 4 How. 503; Piper v. Hoard, 107 N. Y. 67; Copper v. Lee, 1 Tex. Civ. App. 9; 21 S. W. Rep. 998; Reynolds v. Hennessy, 17 R. I. 169; 20 At. Rep. 307; 23 At. Rep. 639; Cook v. Chicago, etc. Ry. Co., 81 Ia. 551; 46 N. W. Rep. 1080; Peck v. Bank of Amerika, 16 R. I. 710; 19 At. Rep. 369; Jones v. Van Doren, 130 U. S. 684; 9 S. Ct. Rep. 685; Tomkins v. Hollister, 60 Mich. 470; 27 N. W. Rep. 651; South Covington & C. S. Ry. Co. v. Gest, 34 Fed Rep. 628; Quimby v. Blackey, 63 N. H. 77; Clews v. Traer, 57 Ia. 459; Pendergrast v. Foley, 8 Ga. 1; Williams v. Carle, 10 N. J. Eq. 543; Bricker v. Lightner, 40 Pa. St. 199; Smith v. Talbot, 18 Tex. 774; Coolidge v. Alcock, 30 N. H. 329; Cole v. McGlathry, 9 Me. 131; Farnam v. Brooks, 9 Pick. 212.

A plaintiff may not set up by way of amendment claims in respect of causes of action which are barred by the statute at the date of amendment, though they were not so at the date of the original writ (z).

It has often been remarked that, as matter of policy, the periods of limitation fixed by the statute of James are unreasonably long for modern usage; but modern legislation has done nothing beyond removing some of the privileged disabilities.

Conclusion of General Part. We have now reviewed the general principles which are common to the whole law of Torts as to liability, as to exceptions from liability, and as to remedies. In the following part of this work we have to do with the several distinct kinds of actionable wrongs, and the law peculiarly applicable to each of them.

(z) Weldon v. Neal (1887), 19 Q. B. Div. 394, 56 L. J. Q. B. 621.

BOOK II.

SPECIFIC WRONGS.

CHAPTER VI.

PERSONAL WRONGS.

247

I.-Assault and Battery.

Preliminary. Security for the person is among the first conditions of civilized life. The law therefore protects us, not only against actual hurt and violence, but against every kind of bodily interference and restraint not justified or excused by allowed cause, and against the present apprehension of any of these things. The application of unlawful force to another constitutes the wrong called battery: an action which puts another in instant fear of unlawful force, though no force be actually applied, is the wrong called assault. These wrongs are likewise indictable offences, and under modern statutes can be dealt with by magistrates in the way of summary jurisdiction, which is the kind of redress most in use. Most of the learning of assault and battery, considered as civil injuries, turns on the determination of the occasions and purposes by which the use of force is justified. The elementary notions are so well settled as to require little illustration.

What shall be said a battery. "The least touching of another in anger is a battery" (a); " for the law cannot

(a) Holt C. J., Cole v. Turner (1705), 6 Mod. 149, and Bigelow L. C. 218.

draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it;

What shall be said a battery. There are various definitions in the authorities of what constitutes a battery, all agreeing in substance with the text. Thus in a Texas case it is said by the court: "The use of any lawful violence upon the person of another, with intent to injure him, whatever be the means or degree of violence used, is an assault and battery.' This definition makes it necessary that two things should concur-one physical the other mental." McKay v. State, 44 Tex. 48.

From a reckless disregard for the safety of others the law presumes an intent to injure. Peterson v. Hoffner, 59 Ind. 13; 26 Am. Rep. 81; Cowley v. State, 10 Lea, 282; Walker v. State, 8 Ind. 290; Markley v. Whitman (Mich.), 54 N. W. Rep. 763.

The result of a successful assault is a battery, and, therefore, every battery includes an assault. The quantity of physical force to be used by an assailant in order that his attack may amount to a battery will depend upon the circumstances. Such questions may be affected by the method adopted in applying the force, by the positions in society that the parties occupy, etc. Fitzgerald v. Fitzgerald, 51 Vt. 420; State v. Wright, 52 Ind. 307; Cooper v. McKenna, 124 Mass. 284; 26 Am. Rep. 667; State v. Smith, 80 Mo. 518; 1 Abbott's Law Dic. 131; Boyle v. Case, 18 Fed. Rep. 880; Ricker v. Freeman, 50 N. H. 420; 9 Am. Rep. 267; Johnson v. State, 17 Tex. 515; Frederickson v. Singer Mfg. Co., 38 Minn. 356; 37 N. W. Rep. 453; Chapman v. State, 78 Ala. 463; Lawson v. State, 30 Ala. 14; Kirkland v. State, 43 Ind. 146; 13 Am. Rep. 386; Hannan v. Gross, 5 Wash. St. 703; 32 Pac. Rep. 787; Nipp v. Wiseheart (Ind. App.), 34 N. E. Rep. 1006.

The mere taking hold of the coat, or laying the hand gently on the person of another, if done in anger, or in a rude and insolent manner or with hostility, is a battery. United States v. Ortega, 4 Wash. 534. So is a blow on the skirt of one's coat, when upon his person; or striking one's cane, while in his hand. Respublica v. De Longchamps, 1 Dall. 114. See State v. Davis, 3 Sneed (Tenn.), 66.

"One is guilty of an assault and battery who delivers to another a thing to be eaten, knowing that it contains a foreign substance and concealing the fact, if the other, in ignorance of the fact, eats it and is injured in health." Commonwealth v. Stratton, 114 Mass. 303. See Carr v. State (Ind.), 34 N. E. Rep. 533.

One who rides a bicycle against another, who is facing the other way, where there is ample room for passing and nothing to obstruct the view, is liable in assault and battery. Mercer v. Corbin, 117 Ind. 450; 20 N. E. Rep. 132.

For cases on the liability of corporations for assault and battery, see, ante, p. 67,

every man's person being sacred, and no other having a right to meddle with it in any the slightest manner" (b). It is immaterial not only whether the force applied be sufficient in degree to cause actual hurt, but whether it be of such a kind as is likely to cause it. Some interferences with the person which cause no bodily harm are beyond comparison more insulting and annoying than others which do cause it. Spitting in a man's face is more offensive than a blow, and is as much a battery in law (c). Again, it does not matter whether the force used is applied directly or indirectly, to the human body itself or to anything in contact with it; nor whether with the hand or anything held in it, or with a missile (d).

sense.

66

What an assault. Battery includes assault, and though assault strictly means an inchoate battery, the word is in modern usage constantly made to include battery. No reason appears for maintaining the distinction of terms in our modern practice; and in the draft Criminal Code of 1879 assault" is deliberately used in the larger popular "An assault" (so runs the proposed definition) "is the act of intentionally applying force to the person of another directly or indirectly, or attempting or threatening by any act or gesture to apply such force to the person of another, if the person making the threat causes the other to believe (e) upon reasonable grounds that he has present ability to effect his purpose" (ƒ).

(b) Blackst. Comm. iii. 120.
(c) R. v. Cotesworth, 6 Mod. 172.

(d) Pursell v. Horne (1838), 3 N. & P. 564 (throwing water at a person is assault; if the water falls on him as intended, it is battery also). But there is much older authority,see Reg.Brev. 108 b, a writ for throwing "quendam liquor. em calidum" on the plaintiff: "casus erat huiusmodi praecedentis brevis: quaedam mulier profecit super aliam mulierem ydromellum quod anglice dicitur worte quod erat nimis calidum."

(e) One might expect "believes or causes," etc.; but this would be an ex. tension of the law. No assault is committed by presenting a gun at a man who cannot see it, auy more than by forming an intention to shoot at him.

(f) Criminal Code (Indictable Of fences) Bill, s. 203. Mr. Justice Stephen's definition in his Digest (art. 241) is more elaborate; and the Indian Penal Code has an extremely minute definition of" using force to another" (s. 349). As Mr. Justice Stephen remarks, if legis