Innes v. Wylie (1844) 1 Car & Kir 257
The defendant instructed a policeman to block the plaintiff, wrongly believed to have been expelled from a society, from entering a hotel room where the society meeting was being held. When the claimant tried to force his way past, he was pushed back by the policeman. The claimant sued the defendant for instructing the policeman to assault him.
1. Whether or not the policeman committed an assault.
1. The policeman committed an assault.
The jury was instructed that if the policeman merely acted as a blockade for the plaintiff, known as an omission, then there would be no assault. However, if the policeman actively pushed the plaintiff, then there would be an assault. The jury found that there was an active act by the policeman, thereby constituting an assault.
Note that the use of the term “assault” in this case mirrors the everyday usage of the term, and not the contemporary usage in the law of torts. The correct term is battery.