(2), striking in sport for example; or even, if coupled with reasonable cause, wounding and other acts of a dangerous kind, as in the practice of surgery. But consent will not make acts lawful which are a breach of the peace, or otherwise criminal in themselves, or unwarrantably dangerous. To the authorities already cited (r) under the head of General Exceptions we may add Hawkins' paragraph on the matter.

"It seems to be the better opinion that a man is in no danger of such a forfeiture [of recognizances for keeping the peace] from any hurt done to another by playing at cudgels, or such like sport, by consent, because the intent of the parties seems no way unlawful, but rather commendable, and tending mutually to promote activity and courage. Yet it is said that he who wounds another in fighting with naked swords does in strictness forfeit such a recognizance, because no consent can make so dangerous a diversion lawful" (8).

It has been repeatedly held in criminal cases of assault that an unintelligent assent, or a consent obtained by fraud, is of no effect (). The same principles would no doubt be applied by courts of civil jurisdiction if necessary.

Self-defence. When one is wrongfully assaulted it is lawful to repel force by force (as also to use force in the

(q) Under the old system of pleading this was not a matter of special justification, but evidence under the general issue, an assault by consent being a contradiction in terms: Christopherson v. Bare (1848), 11 Q. B. 473, 17 L. J. Q. B. 109. But this has long ceased to be of any importance in England.

(r) P. 185, above.

(8) Hawkins, P. C. i. 484. The Roman law went even farther in encouraging

contests" gloriae causa et virtutis," D. 9. 2, ad. 1. Aquil. 7, § 4.

(t) Cases collected in Fisher's Dig. ed. Mews, 2081-2. Similarly where consent is given to an unreasonably dangerous operation or treatment by one who relies on the prisoner's skill, it does not excuse him from the guilt of manslaughter if death ensues: Commonwealth v. Pierce, 138 Mass. 165, 180.

Self-Defence. Agreeing with the text, vide Shorter v. People, 2 N. Y. 193; Patton v. People, 114 Ill. 505; 2 N. E. Rep. 541; Marts v. State, 26 Ohio St. 162; People v. Dann, 53 Mich. 490; 19 N. W. Rep. 159; Miller v.

defence of those whom one is bound to protect, or for keeping the peace), provided that no unnecessary violence

State, 74 Ind. 1, followed in Presser v. State, 77 Ind. 278; Long v. State, 52 Miss. 23; Keep v. Quallman, 68 Wis. 451; 32 N. W. Rep. 233; Drew v. Comstock, 57 Mich. 176; Commonwealth v. Kennard, 8 Pick. 133; Pond v. People, 8 Mich. 150; People v. Lennon, 71 Mich. 300; 38 N. W. Rep. 871; Harrison v. Harrison, 43 Vt. 417; Jamison v. Moseley, 68 Miss. 336; 10 So. Rep. 582; Ogden v. Claycomb, 52 Ill. 365; Commonwealth v. Mann, 116 Mass. 58; State v. Nash, 88 N. C. 118; Commonwealth v. White, 110 Mass. 409. See cases cited, ante, p. 201. The authorities are not uniform as to the obligation of one violently assaulted to retreat but the better doctrine seems to be that where a person has used every reasonable precaution to prevent an encounter and has, without any fault of his own, had a fight thrust upon him, it is not his legal duty (undoubtedly not his moral duty), to cowardly retire as his assailant approaches. See Haynes v. State, 17 Ga. 465; Tweedy v. State, 5 Ia. 433; State v. Dixon, 75 N. C. 275; Steinmetz v. Kelly, 72 Ind. 442; Morris v. Casel, 90 Id. 143. Contra Howland v. Day, 56 Vt. 318.

It is a general rule in law that one should not use an unreasonable and a disproportionate degree of violence towards the person of another in self-defense. Thus in the case of Dole v. Erskine (35 N. H. 511), the court said: "But if the person assaulted uses excessive force, beyond what is necessary for self-defense, he is liable for the excess, and the facts may be shown under the replication of de injuria. Up to the time that the excess is used, the party assaulted is in the right. Until he exceeds the bounds of self-defense he has committed breach of the peace and done no act for which he is liable; while his assailant, up to that time, is in the wrong, and is liable for his illegal acts. See State v. Brooks, 99 Mo. 144.

no

It is apparent that in such a case there have, in effect, been two trespasses committed; the one by the assailant in commencing the assault, and the other by the assailed party in using excessive force.

The only difference would seem to consist in the length of time that has elapsed between the two trespasses. In a case where excessive force is used, the party using it is innocent up to the time that he exceeds the bounds of self-defense. When he uses excessive force, he then for the first time becomes a trespasser. In such a case each party may have an action against the other; the one for the original assault and the other for the assault which begins with the employment of excessive force. Curtis v. Carson, 2 N. H. 539; Hannen v. Edes, 15 Mass. 349; Scribner v. Beach, 4 Denio, 448; Thompson v. Berry, 1 Cranch C. Ct. 45; McIlhoy v. Cockran, 2 A. K. Marsh. 274; Robinson v. Hawkins, 4 T. B. Mon. 136; Philbrick v. Foster, 4 Ind. 442; Hazel v. Clark, 3 Harr. (Del.) 222; Close v. Cooper, 34 Ohio St. 98; Breitenbach v. Trowbridge, 64 Mich. 393; 31

be used. How much force, and of what kind, it is reasonable and proper to use in the circumstances must always be a question of fact, and as it is incapable of being concluded beforehand by authority, so we do not find any decisions which attempt a definition. We must be content to say that the resistance must not exceed the bounds of mere defence and prevention" (u), or that the force used in defence must be not more than " commensurate" with that which provoked it (v). It is obvious, however, that the matter is of much graver importance in criminal than in civil law (w).

(u) Blackst. Comm. iii. 4.

(v) Reece v. Taylor, 4 N. & M. 470. (w) See Stephen's Digest of the Criminal Law, art. 200, and cp. Criminal Code Bill, ss. 55-57; and for full discus.

sion Dicey, Law of the Constitution, 3rd ed. appx. note 3. There are many modern American decisions, chiefly in the Southern and Western States. See Cooley on Torts, 165.

N. W. Rep. 402; Marsh v. Bristol, 65 Mich. 378; 32 N. W. Rep. 645; Tucker v. Walters, 78 Ga. 232; 2 S. E. Rep. 689; Drinkhorn v. Dubel, 85 Mich. 532; 48 N. W. Rep. 710; Baldwin v. Hayden, 6 Conn. 457; Gallagher v. State, 3 Minn. 270; Floyd v. State, 36 Ga. 91.

Still it seems that where the excess of violence used in defense is inconsiderable in amount the law gives no right of action therefor. "The

law has enough regard for the weakness of human nature to regard a violent attack as a sufficient excuse for going beyond the mere necessities of self-defense and chastising the aggressor within such bounds as did not exceed the natural limits of the provocation." People v. Pearl,

46 Mich. 210.

Defence of dwelling. A man may defend his dwelling or "castle" to the last extremity. Pitford v. Armstrong, Wright (Ohio), 94; McPherson v. State, 22 Ga. 478; Thompson v. State, 55 Id. 47; State v. Burwell, 62 N. C. 661; State v. Abbott, 8 W. Va. 741; Wall v. State, 51 Ind. 453; State v. Stockton, 61 Mo. 382; State v. Peacock, 40 Ohio St. 333; State v. Middleham, 62 Ia. 150; 17 N. W. Rep. 446.

Defence of family. It is, also, an established rule that a person may defend any member of his family against an assault as he could himself. Staten v. State, 30 Miss. 619; Patten v. People, 18 Mich. 314; Commonwealth v. Malone, 114 Mass. 295; Stoneman v. Commonwealth, 25 Gratt. 837; Smith v. Slocum, 62 Ill. 354; State v. Greer, 22 W. Va. 800.

But no one has a right to revenge wrongs done to any member of his family after the danger is repelled and the violence not impending. State v. Gibson, 10 Ired. 214.

Menace distinguished from assault. Menace without assault is in some cases actionable. But this is on the ground of its causing a certain special kind of damage; and then the person menaced need not be the person who suffers damage. In fact the old authorities are all, or nearly all, on intimidation of a man's servants or tenants whereby he loses their service or dues. Therefore, though under the old forms of action this wrong was of the same genus with assault and battery, we shall find it more convenient to consider it under another head. Verbal threats of personal violence are not, as such, a ground of civil action at all. If a man is thereby put in reasonable bodily fear he has his remedy, but not a civil one, namely by security of the peace.

Summary proceedings when a bar to civil action. Where an assault is complained of before justices under 24 & 25 Vict. c. 100, and the complaint has been dismissed (after an actual hearing on the merits) (x), either for want of proof, or on the ground that the assault or battery was justified or so trifling as not to merit any punishment," or the defendant has been convicted and paid the fine or suffered the sentence, as the case may be, no further proceedings either civil or criminal can be taken in respect of the same assault (y).

66

(x) Reed v. Nutt (1890), 24 Q. B. D. 669, 59 L. J. Q. B. 311.

(1) 24 & 25 Vict. c. 100, ss. 42-45. Masper v. Brown (1876), 1 C. P. D. 97, decides that the Act is not confined to suits strictly for the same cause of action, but

extends to bar actions by a husband or master for consequential damage: the words of the Act are "same cause," but they are equivalent to " same assault" in the earlier Act, 16 & 17 Vict. c. 30, s. 1, repealed by 24 & 25 Vict. c. 95.

Menace distinguished from assault. Where menace without assault results in special damages it appears that it should be a ground of action but it seems that this question has never arisen in the courts of the United States except in so far as it relates to the menacing of tenants and employes, and in this class of cases the English decisions have been followed. See Dickson v. Dickson, 33 La. An. 1261; Carew v. Rutherford, 106 Mass. 1; and see post, p. 216. It is certain that a menace is not an assault. Johnson v. State, 35 Ala. 365; People v. Yslas, 27 Cal. 633.

II. False Imprisonment.

False imprisonment. Freedom of the person includes immunity not only from the actual application of force, but from every kind of detention and restraint not authorized by law. The infliction of such restraint is the wrong of false imprisonment; which, though generally coupled with assault, is nevertheless a distinct wrong. Laying on of hands or other actual constraint of the body is not a necessary element; and, if "stone walls do not a prison make" for the hero or the poet, the law none the less takes notice that there may be an effectual imprisonment without walls of any kind. "Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets" (z). And when a man is lawfully in a house it is imprisonment to prevent him from leaving the room in which he is (a). The de

(z) Blackst. Comm. fi. 127.

(a) Warner v. Riddiford, 4 C. B. N. 8. 180; even if he is disabled by sickness

from moving at all: the assumption of control is the main thing: Grainger v. Hill (1838), 4 Bing. N. C. 212.

False imprisonment. Several of the courts of the United States have defined the meaning of false imprisonment substantially as the text. A very comprehensive statement of what constitutes this wrong is that of the court in Come v. Knowles, (17 Kan. 440), as follows: "False imprisonment is necessarily a wrongful interference with the personal liberty of an individual. The wrong may be committed by words alone, or by acts alone, or by both, and by merely operating on the will of the individual or by personal violence, or by both. It is not necessary that the individual be confined within a prison, or within walls; or that he be assaulted or even touched. It is not necessary that there should be any injury done to the individual's person, or to his character, or reputation. Nor is it necessary that the the wrongful act be committed with malice, or ill-will, or with the slightest wrongful intention. Nor is it necessary that the act be under the color of any legal or judicial proceedings. All that is necessary is, that the individual be restrained of his liberty without any sufficient legal cause thereof, and by words or acts which he fears to disregard." See State v. Lunsford, 81 N. C. 530; Floyd v. State, 7 Eng. (Ark.) 44; Moses v. Dubois, Dudley (S. C.), 210; Brushaber v.