Odger's English Common Law

ASSAULT AND BATTERY. 471
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. 1
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 defen-
dant 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
g'ame for the party. The plaintiff framed his Statement of Claim in negli-
gence. 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 inten-
tional. 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." 4 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
l Stanley v. Powell, [1891] 1 Q. B. 86.
3 Holmes v. Mather (1875), L. E. 10 Ex. 261.
s We have already dealt at length with these offences, which are also crimes.
Be l p n
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j££i3. 0.~J., i'a Bead v. Ooher (1853), 13 C. B. at p. 860 ; and see B. r.
Duckworth, £1892] 2 Q. B. 88.