444
The Green Bag,
approved the Davis case, on account of "The close and intimate connection which existed between the prosecutor and the negro; but no such identity or connection between the prosecutor and his horses in the case in judgment is shown." That is to say that violence to the person may be com municated through a rope tied to that per son, but not through reins held in the hands of that person! And yet in an ancient case, it was adjudged that excessive beating at the door of a house in which the prosecutor was sitting was an assault! Rex z>. Hood, Say, 167. In this case the knocking at the gate was more awful than that in " Mac beth," for it caused the miscarriage of the prosecutor's wife. Another case, involving the like unfortunate consequences, is Com. v. Taylor, 5 Binney, 277, in which the pris oner, being inside the house, made a great and frightful noise, against the peace of the commonwealth and of Mrs. Strain. Judge Brackcnridge, a wise judge and a merry, treated the subject with entertaining humor and learning. The court did not precisely christen the offense, but called it a mis demeanor. It was held of old that upsetting a chair or carriage in which one was sitting, or a ladder on which one was standing was an assault. Hopper z1. Reeve, 7 Taunt. 698; Collins -v. Renison, Say, 138. It even seems that an insult to a counter feit presentment of the human body may constitute a criminal offense. Thus in the famous case of Mczzarn, i City Hall Re corder, 113, this doctrine was invoked in protection of a portrait. The defendant was a portrait painter, who, having painted a portrait of Mr. Palmer, counselor and attorney-at-law, master in chancery and notary public, which was not satisfactory to the sitter and which he declined to accept, added a pair of ass's ears to it; it was seized by the sheriff on an execution in favor of Palm er, and exposed for sale, and the defend ant himself drew attention to the picture by advertisement of the sale in a newspaper.
It was contended for the defendant that he had not published the libel, that the publica tion was by Palmer himself through the sheriff as his agent, and that the painter merely intended to turn the portrait into a picture of Midas. There was a conviction, and defendant was fined $100. The re porter indulged in classical allusion to Midas, and in some tolerably amusing comment, but posterity will never cease to regret that he did not give instead the speech of William Sampson for the prisoner. It is undoubtedly the law that one is not without remedy against another who as sumes to exhibit or sell his portrait without his consent, as in the case of a photog rapher, or one who puts a lady's portrait on his merchandise, as for example, on cigarettes, to commend it to the purchasing public. The court will interpose its injunc tion to prevent such an outrage. Pollard r. Photographic Co., L. R., 40 Ch. Div. 345; Moore v. Rugg, 44 Minn. 28; Corliss v. E. W. Walker Co., 64 Fed. Rep. 280. But this right is strictly personal, and a father has no such proprietorship of his child's body as will enable him to restrain the pub lication of its picture. Murray z: Gast Lithog. Co., 8 Misc. 36. But it seems that a stage representation or caricature of a person is not so unfavor ably regarded as to warrant an injunction against it, however it might be held of an action of libel. So at least it has been thought in England. It would indeed be a pity to have Dixey restrained from imitating Irving as " Hamlet," although it seems that the court would interfere to prevent the exhibition of a wax figure of a man who had been tried and acquitted of murder. Monson v. Tussaud [1894], O. B. 671. It is familiar law that a mere threat of assault, in circumstances evincing the inten tion and ability to commit it, will constitute an assault. Thus to drive a horse intention ally so near a person as to endanger his person is an assault. State v. Sims, 3 Strob.
