Clark v. Downing

55 Vt. 259

• Court: Supreme Court of Vermont
• Decided: October 15, 1882
• Status: Published

Opinion

The opinion of the court was delivered by

Royce, Ch. J.

This was an action of trespass for an assault and battery. The first exception taken was to the ruling of the court excluding the search warrant as evidence. The plaintiff claims that under his replication of de injuria it was admissible.

The replication of de injuria puts in issue all the material allegations of the plea. If the plaintiff wished to avail himself of the search-warrant as a justification, he should have alleged it in his replication, so that an issue might have been made upon that allegation. There was no error in excluding it. Chit. Pl. 564 ; George v. West, 52 Vt. 645; Braley v. Walworth and Burnham, 47 Vt. 717.

The only other exception taken was to the refusal of the court to charge as requested. The evidence referred to in the exceptions, and upon which the request was predicated, and the question of what in law constitutes an assault, have to be considered in deciding whether the request should have been complied with or not. It appears that the evidence as to what transpired at the time and upon the occasion when it was claimed that the assault was committed was conflicting, and the request was based upon the supposition that the jury might find the facts as the plaintiff’s evidence tended to show.

Admitting that the jury might so find, did the striking of the plaintiff’s horse-constitute an assault upon the plaintiff? It is not (necessary to constitute an assault that any actual violence be done ■ to the person. If the party threatening the assault have the ability, means, and apparent intention, to~carry~~KIs threat into — .execution, it may in law constitute an assault. The disposition, accompanied with-aryrreseut~u5ility to use violence, has been held to amount to an assault" WTTere violence is used it is not indispensably necessary that it should be to the person. It was decided in Hopper v. Reeve, 7 Taunt. 698, that the upsetting of a chair or carriage in which a person was sitting was an assault; in Mortin v. Shoppe, 3 C. & P. 373, JhálTlúdlñg after a person I at a quick pace and compelling him to fun into his garden to avoid \ being beaten was an assault; that the striking of the horse upon ( which the wife of the plaintiff was riding was an assault upon the / wife. 1 Stephens, N. P. 210.

An assault is defined in Hays v. The People, 1 Hill, 351, to be an attempt with force or violence to do a corporal injury to another. The striking of the plaintiff’s'horse in the manner that his evidence tended to show would probably result in a corporal injury to him ; hence, the request should have been complied with.

The case should have been submitted to the jury for them to . find whether the striking was as the plaintiff claimed it to have been, or in the manner and for the reasons indicated in the defendant’s plea.

Judgment reversed, and cause remanded.