
    James McCann vs. William A. Tillinghast & another.
    Bristol.
    Oct. 28.
    Nov. 2, 1885.
    Field & C. Allen, JJ., absent.
    A declaration alleged that “the defendant’s servant, B., who was at the time watching and guarding the defendant’s lumber-yard and had charge thereof, unlawfully, without cause, and maliciously, made an assault upon ” the plaintiff to an extent specified, “ all of which the said defendant’s servant did wrongfully and without cause in an unjustifiable attack upon the plaintiff, under an assumption that the plaintiff was trespassing upon the defendant’s land, and without notice to leave.” Held, on demurrer, that the declaration did not sufficiently allege that the assault was committed by B. while acting within the scope of his employment as the defendant’s servant.
    Tout. The declaration was as follows : “ And the plaintiff says, that, on the twenty-eighth day of December last past, the 'defendants’ servant, George Baily, who was at the time watching and guarding the defendants’ lumber-yard and had charge thereof, unlawfully, without cause, and maliciously, made an assault upon him, and beat and bruised him, and so injured the plaintiff that he hath been put to great pain and suffering, hath lost much time and labor, and spent considerable sums of money to pay for medical advice and attendance, and is seriously injured thereby, all of which the said defendants’ servant did wrongfully and without cause in an unjustifiable attack upon the plaintiff, under an assumption that the plaintiff was trespassing upon the defendants’ land, and without notice to leave. To the damage of said plaintiff,” &c.
    The defendants demurred to the declaration, upon the ground, among others, that it did not state a legal cause of action, because it did not allege that the acts complained of were done by the servant in the course of the defendants’ business.
    The Superior Court sustained the demurrer, and ordered judgment for the defendants; and the plaintiff appealed to this court.
    
      W. Clifford, for the defendants.
    
      E. L. Barney, for the plaintiff.
   By the Court.

The defendants are not liable for the as- • sault by Baily upon the plaintiff, unless it was committed by Baily while acting within the scope of his employment as a servant of the defendants. This fact is not sufficiently alleged in the declaration, and it is therefore demurrable.

Judgment for the defendants.  