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defendant's statement of defence, and says that the same is bad Misconin law, on the ground that the facts therein alleged do not duct of an

apprentice. entitle an apprentice to leave his master's service during the term of his service, and on other grounds sufficient to sustain this demurrer.

Arbitration.

See Award.

Architect (a).

Action by a Builder against Architect for fraudulently with

holding his Certificate. 1. The plaintiff is a painter and decorator, of No. —— Against Street, H.

architect

for fraudu. 2. The defendant is an architect and surveyor, carrying on lent colbusiness at Street, L.

lusion

with his 3. The defendant was employed by one A. R., for reward and commission in that behalf, to negotiate, and effect a contract for the repair of certain premises, known as 30, St. Martin's Street.

4. And the defendant, with a view to earning the said commission, induced the plaintiff to make, and the plaintiff did make, to the defendant a certain tender for the repairs above

(a) An architect employed to determine questions between a builder Liability of and employer may be sued for neglecting to perform the functions he an archihas undertaken to perform. (See Kimberley v. Dick, L. R. 13 Eq. 1.) tect. It has been held that if the employer induce the architect fraudulently to withhold his certificate the employer is liable to be sued for inducing the architect to act in this manner. (Batterbury v. Vyse, 32 L. J. Ex. 177.) That the architect himself would be liable for fraudulently withholding the certificate seems deducible from the general proposition above laid down that he is liable for non-performance of the function he has undertaken. And this has been expressly decided in a recent case in which it was alleged that the architect fraudulently and in col. lusion with the employer withheld the certificate. (Ladbroke v. Barrett, 46 L. J. C. P. 798.) He cannot, however, be held liable for mere errors of judgment in the discharge of his duty of adjudicating. (Kimberley v. Dick, supra.)

Against an mentioned, which as far as is material is in the words and for fraudu. figures following: lent collu

[Here plaintiff's tender was set out.] sion.

5. The defendant accepted the said tender, and agreed with the plaintiff that as soon as the work was done as therein specified, in a sound and workmanlike manner, he would signify his satisfaction in an adequate and sufficient manner, to enable the plaintiff to recover the price thereof from the said A. R.

6. The plaintiff duly executed the said work in accordance with the specification referred to, in a sound, workmanlike manner, and to the satisfaction of the said Mr. W. [a person mentioned in the tender set out in paragraph 4, where it was provided that as a condition precedent to obtaining payment for the work, it was to be done to the satisfaction of defendant and a Mr. W.], and duly carried out all the clauses of the said contract, save such as the performance of the same was waived by the said A. R. and the defendant; and the plaintiff altered and amended all such things as were pointed out by the defendant as not being to his satisfaction, as far as the nature and age of the house (the subject matter of the contract) would admit of, and all conditions were fulfilled, save as aforesaid waived, and all things had happened and were done to entitle the plaintiff to have the defendant give such sufficient certificate or other intimation of his satisfaction to enable the plaintiff to recover from the said A. R. the agreed price.

7. Yet the defendant falsely contriving and in collusion with the said A. R., and by his procurement, and for fear of forfeiting the further custom and rewards of the said A. R., and in fraud of the plaintiff, and contrary to the true intent and meaning of the said contract, neglected and refused to admit or certify that he was satisfied with the work, but on the contrary falsely pretended that he was dissatisfied with the same, and that it was not done in a workmanlike manner.

8. By reason of the premises, the said A. R. refused to pay to the plaintiff the whole of the aforesaid price justly due to him on the said contract, and through the wrongful acts of the defendant above mentioned, the plaintiff was unable to recover

for fraudu

from the said A. R. more than what the said A. R. chose to Against an pay, which was a sum less than the balance justly due, and the architect plaintiff accordingly lost the balance thereof, to which he would lent colluhave been otherwise entitled, and the said balance still remains sion. wholly due and unpaid to the plaintiff.

The plaintiff claims £100 damages.

Assault and Battery (a).

A Claim for Assault, Trespass, and Trover combined. 1. The plaintiff is, and at the time of the grievances herein- Claim for after mentioned was, an innkeeper, residing and carrying on an assault

&c. his business at the George Inn, in the City of York.

2. The defendant is, and at the time of the grievances herein

(a) An assault has been defined as "an attempt to do a corporal Definitions injury to another, coupled with a present ability, or any act or gesture of assault from which an intention to commit a battery may be implied ” (Read v. and batCoker, L. J. 22 C. P. 201); so riding after a person and obliging him to tery. run away to avoid being beaten is an assault; so lifting a stick and threatening to strike another with it if you are so near to that other that you can put your threat into execution if you choose. A battery, which always includes an assault is, however, something more than an assault. It is the actual doing an injury be it ever so small, in an angry or revengeful or rude or insolent manner, as by spitting in a man's face, or violently jostling him out of the way. (B. N. P. 15.) It is essential both to an assault and a battery that the act complained of should be done against the will of the person assaulted. Hence a touch or stroke in jest, where the parties are jesting with each other and taking liberties by mutual consent, is no assault; so touching a friend to engage his attention is no assault (Corcard v. Baddeley, L. J. 28 Ex. 260); but it is not essential to an assault that it should be wilful. A negligent act is just as actionable as a wilful one, although no doubt in the result the measure of

A negligent damages awarded by the jury would be very different.

act may be The defences that have been set up and sustained to actions for assault

an assault. are somewhat numerous :—1. From what has been already said as to an

Justificaassault excluding consent, it follows that a plea that the assault was tions of an committed by the leave and licence of the plaintiff is a good answer.

assault. (Christopherson v. Bare, 11 Q. B. 473, 477.) 2. Again, a plea that the injury was unavoidable, the result entirely of a superior agency, and the conduct of the defendant free from fault, has been sustained. (Gibbons v. Pepper, 1 Ld. Raym. 38.) 3. A defence that the plaintiff made the first assault and that the defendant's battery was in self-defence, is a good answer. This defence was called son assault demesne; and it has been decided with refer.

Self

defence. ence to it that it is not every assault that will justify every battery, and that it is a matter of evidence whether the assault was proportionable to the battery. Thus, if A. strikes B., B.cannot justify drawing his sword and

Claim for after mentioned was, a brewer, also living and carrying on his assault, &c. business at York aforesaid.

3. On the 21st of July, 1875, the plaintiff was in occupation

cutting off B.'s hand. Under the old system of pleading it was necessary for the plaintiff specially to plead in his replication the excess of the defendant, that is to say, aver that the defendant was guilty of more violence than the necessity of self-defence justified ; and it is submitted that there is nothing in the new system of pleading inconsistent with the

old rule, and that, therefore, in his reply, the plaintiff should set up, Assault in where the fact is so, the unnecessary violence of the defendant. 4. Another defence of defence is that the defendant was possessed of a house, that the plaintiff a man's without his licence entered and disturbed him, whereupon he requested house. the plaintiff to depart, and on refusal gently laid hands on him to turn

him out. This plea refers merely to the case of one who trespasses with. out violence in the house of another; in the case of one making a forcible entry, the plea is different. 5. If the plaintiff enters forcibly into the defendant's house, the latter may resist force by force without any previous request to depart. 6. Where the plaintiff wrongfully holds possession of land against the will of the freeholder, who assaults him while

endeavouring to regain possession, no action will lie. (Harvey v. Bridges, Moderate 14 M. & W. 437. See also Blades v. Higgs, L. J. 30 C. P. 347.) 7. Where chastise- the action is brought in respect of an assault committed upon a youth, ment. it is a good answer that the assault complained of was moderate and

reasonable chastisement inflicted by a parent or a schoolmaster, or in the Constables case of an apprentice by the lad's master (see ante, p. 121.) 8. Constables executing and those acting in the execution of warrants may justify necessary assaults warrants. committed by them in the execution of their duty. Provided the warrant

under which they act is not void on its face, and does not issue from a court without jurisdiction, they are protected by such warrant, even though it be afterwards set aside for some irregularity ; but when the warrant is set aside, those who put the law in motion, as the client or solicitor, would probably be liable in some form of action for the acts of the constables. 9. Assault is one of those cases where the party aggrieved has an alternative remedy. He can seek redress either in the

civil courts or in a criminal court; but he cannot have both remedies. Where case Therefore it is a good answer to an action for assault that the defendant has been was summoned by the plaintiff before a magistrate for the same assault, determined and that the magistrate heard the case and either dismissed it or inflicted by justices. a penalty upon the defendant which the latter has endured, and that he

" forthwith” gave a certificate of his having heard and disposed of the case. (See the 24 & 25 Vict. c. 100, s. 45.) On this statute it has been decided that a person who has been convicted of a common assault on a married woman, and who has paid the whole amount adjudged to be paid, may rely on the protection given by it as a bar to an action against him by the husband for the loss he, as such husband, has sustained by the

assault on his wife. (Masper v. Brown, 45 L. J. Com. L. 203 ; and see also Statute of Holden v. King, 46 L.J. Com. L.75.) 10. A plea of the Statute of Limitations Limitation. is of course good, the one point to be noticed about this defence in con

nection with this form of action being that the plaintiff's remedy is

barred not after six but after four years. 11. It was once thought, and Where 80 decided, that where the assault complained of turned out to be a assault felony for which the defendant had not been prosecuted, the defendant amounts might avail himself of this, and the plaintiff must be nonsuited (Wellock to a felony. v. Constantine, L. J. 32 Éx. 285); but this view was declared to be

erroneous in the more recent case of Wells v. Abrahams, L. R. 7 Q. B.

of the said George Inn as tenant to the defendant; and at the Claim for time of the grievance in the next paragraph mentioned he had assault, &c. therein certain goods and furniture of the value of about £400, which were his own property.

4. On the said 21st of July, 1875, the defendant, together with a sergeant of police and two other men, who were acting under the defendant's orders, broke into the said house, and violently assaulted the plaintiff, and tore his coat and shirt, and forcibly ejected him from the said house.

5. The defendant then seized all the plaintiff's said goods and household furniture which were in the said house, and detained and still detains the same from the plaintiff, and destroyed the plaintiff's said business.

The plaintiff claims :-
(1.) A return of his said goods and household furniture, or

their value, and £50 damages for their detention.
(2.) £250 for the other causes of action stated in the state-

ment of claim. (3.) Such further or other relief as the nature of the case

requires.

Action against a Railway Company for an assault committed by

their Servants. 1. The plaintiff is a - carrying on business at No.-,

Court, in the City of London. 2. On the 4th of May, 1877, the plaintiff was lawfully on the premises of the defendants at their terminus at Euston Square, and was in the act of entering one of their carriages attached to a train about to start for Rugby, with a ticket which he had a few minutes before purchased at their bookingoffice, when a servant of the defendants seized him in a violent manner, and prevented him from entering the said carriage.

3. The plaintiff remonstrated against this conduct, when he Assault was seized by several servants of the defendants, and violently committed

by railway removed from and ejected out of their premises, and was servants. severely struck and beaten by the said servants while he was being so removed and ejected.

4. By reason of his having been seized and prevented from proceeding on his journey to Rugby as aforesaid, the plaintiff

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