Da COSTA V. CLARKE. we think that these words must refer to the three weeks and up- 1800. wards, and that they do not ascertain whether the cattle were put in during the three weeks, or during that time which is included under the words "and upwards." And though the words for "three weeks and upwards" are under a videlicet, yet if we could suppose them to be struck out, the averment would then be, that the field ought to be open on or before the 15th of October, when the corn is cut and carried off the same for a long time, which, without a qualification of the length of time, would be too uncertain to be supported. It also appears to us, that it is not sufficiently pointed out, when the common is to commence, since it may happen that the corn may not be cut and carried before the 15th of October, or even before the end of three weeks after that day. The Court will infer almost any *thing after verdict; but (260) we think in this case there can be no inference to uphold the allegations of the special plea. 1 Per Curiam, Rule absolute. Handcock v. Baker and three Others. July 1st. may justi fy break. ing and tiff's his per son, to TRESPASS for breaking the Plaintiff's dwelling-house, and as- A private saulting him therein, and dragging him out of bed, and forcing person him without cloaths out of his house along the public street, and beating and imprisoning him without cause. Two of the Defendants suffered judgment by default, and the entering other two pleaded, 1st, not guilty: 2dly, that the Plaintiff in the the, Plain. said dwelling-house broke the peace and assaulted his wife, and house, purposed to have feloniously killed and slain her, and was on the and impoint of so doing; and that her life being in great danger, she prisoning cried murder, and called for assistance; whereupon the Defendants, for the preservation of the peace, and to prevent the Plaintiff prevent from so killing and slaying his wife, and committing the said felo- him from ny, endeavoured to enter by the door, and knocked thereat; and committing murbecause the same was fastened, and there was reasonable cause der on his to presume that the wife's life could not have been otherwise pre- wife. served than by immediately breaking open the door and entering the said dwelling-house, and they could not otherwise obtain possession, they did for that purpose break and enter the said dwelling-house, and somewhat break, &c. doing as little damage as possible, and gently laid hands on the Plaintiff, and prevented. him from further assaulting and feloniously killing and slaying his said wife; and for the same purpose, and also for that of taking and delivering the Plaintiff to a constable, to be by him taken before a justice and dealt with according to law, kept and detained him a short and reasonable time in that behalf, and because he had not then proper and reasonable cloaths on him, took their. hands off from him, and permitted him to enter a bed-chamber, and to remain there a reasonable time, that he might put on such cloaths, which he might have done; and because he did not, nor would so do, but wholly refused, and went into bed there, and remained there at the end of such reasonable time, and would 1800. HAND- V. & al not quit the same, although thereto requested, the Defendants, *for the same purposes as they so kept and detained the Plaintiff as above-mentioned, there being then no reasonable ground for presuming that he had changed his purpose of further assaulting BAKER and feloniously slaying his said wife, entered the bed-chamber in order for those purposes to take him therefrom, whereupon the *(261) Plaintiff assaulted and would have beat the said Defendants, if they had not defended themselves, which they did, and if any damage happened to the Plaintiff it was occasioned by his own assault, and the Defendants for the purposes in that behalf aforesaid, gently laid hands upon the Plaintiff, and took him from the bed, and out of the dwelling-house along the public streets for a reasonable time, and kept and detained him for a short and reasonable time for those purposes, till they could find a constable, and as soon as they could find a constable delivered him to the constable for the purpose in that behalf aforesaid. The Plaintiff replied de injurià suà proprià, and by way of new assignment pleaded, that he sued out his writ, and declared as well for the trespasses justified, as also for that the Defendants at the times when, &c. beat and ill-treated the Plaintiff with much greater violence and imprisoned him for a longer time than was necessary and proper for any of the purposes in the plea mentioned. Issue having been joined on the replication and new assignment, the cause was tried before GROSE, J. at the last Spring assizes for Norfolk, when the jury found for the Plaintiff on the general issue, and for the Defendants on the special justification. In Easter term last, a rule Nisi was obtained calling on the Defendants to shew cause why the judgment for the Defendants on the special justification should not be arrested, and a verdict entered for the Plaintiff on the general issue, with 18. damages. The case having stood over till this term, Shepherd and Williams, Serjts. now shewed cause, and contended, that if the Defendants were justified in entering the Plaintiff's house, and preventing him from killing his wife in the first instance, they were also justified in taking the proper means to prevent him from accomplishing that purpose at any time while the same intent continued; that after verdict, the allegation that "there was no reasonable ground for presuming that he had changed his purpose of further assaulting and feloniously slaying his said wife" must be taken to have been proved; they cited 9 Ed. 4. 26. b. Bro. Ab. tit. Trespass, pl. 184. where to trespass for assault and impris*(262) onment the Defendant pleaded, that the Plaintiff was lying in wait in the highway to rob the King's subjects, that one Alice was riding on the same highway, against whom the Plaintiff drew his sword and commanded her to deliver her purse, whereupon she levied hue and cry, that the Defendant was riding there and heard the cry, and returned and took the Plaintiff, and because there were no stocks in the vill he carried him to S. and there delivered him to the constable; and the plea was held good by the whole Court, and Moile said, if one say to me," See this man, I will certainly kill him," in this case I may hold him so that he do not kill the man, and this holding is no imprisonment (a); they also re(a) In that case it is also said by Needham, "In these cases, he may ar rest and commit to gaol if he intends to do a felonious act." ferred to 22 Ed. 4. 45. b. 2 Rol. Ab. tit. Trespass, E. 4. where 1800. HAND COCK V. & al. Sellon and Bayley, Serjts. in support of the rule, observed, that BAKER the cases were distinguishable from the case in question, inasmuch as this was a case of interference between husband and wife, the former of whom has to a certain extent the power of correcting the latter that although the Defendants, if they had seen the wife in actual danger, might perhaps have heen justified; yet without any warrant or constable they could not interfere by way of prevention, merely because the intention continued; that the law has provided a remedy for the wife in case the husband threaten to beat or to kill her; she may either have a writ of supplicavit out of Chancery, F. N. B. 80. or exhibit articles of the peace in the King's Bench; that in this case, it did not appear, even that the wife was present at the time when the Plaintiff was taken out of bed; whereas it was necessary for the Defendants to allege, not only that the Plaintiff had the intent but the power to kill his wife; and that in order to justify the imprisonment, they should also have averred, that the intention continued during the whole time in which the Plaintiff was detained by the Defendants. Lord ELDON, Ch. J. If the reasoning be good, that a wife ought to apply for assistance to those courts where the law has provided assistance for her, it will equally apply to the first entry of the house by the Defendants, as to the subsequent assault and imprisonment, which is stated to have taken place in the bed-room. I think, however, that a wife is only bound to apply to those remedies, * (263) where it is probable that the injury to be apprehended will be prevented by such application. In this case, the Plaintiff being about to commit a felony by killing and slaying his wife, the Defendants interfered by breaking and entering the house in order to prevent the execution of that intent: and" for the same purposes," that is, with a view to prevent the Plaintiff from killing and slaying his wife, they afterwards committed the injury complained of in the bed-room, into which they had permitted him to enter in order to put on necessary clothes. It is stated, that there was no reasonable ground for presuming that the Plaintiff had changed his purpose; and it is argued, that it ought to have been averred that his purpose actually continued: but if the preceding allegation be true, that the Defendants entered the bed-room for the same purposes for which they had previously entered the house, the latter allegation was unnecessary: since the averment that it was for the same purposes sufficiently brought the question before the jury, Whether or not the Defendants entered the bed-chamber, and detained the Plaintiff, for the purpose of preventing him from killing and slaying his wife? It is not difficult to conceive, that under some circumstances it might be more especially the Defendants' duty to interfere in that manner. Suppose A. endeavour to lay hold of B. who is in pursuit of C. with an intent to kill him, and B thereupon ceases to pursue with the view of effecting his purpose with more cunning, the act of ceasing to run, so far from being evidence of an intention to desist from his purpose, might afford strong evidence 1800. HAND COCK ข. & al. of an intention to prosecute it with more effect; in which case the detention of B. would be justified. In this case, the jury were competent to consider whether under all the circumstances of the case, including the presence or absence of the wife, the Plaintiff BAKER got into bed with a view of more effectually executing his intent to kill his wife. In fact the jury have found, that the Defendants kept and detained the Plaintiff after he had gone into the bed-room for the same purposes for which they kept and detained him before. With respect to the averment which has been supposed to be necessary, it is sufficient to answer, that after verdict it must be presumed that every thing is proved which is necessary to support the verdict; and the jury have found that it was necessary for the preservation of the woman's life that the Defendants should do what they did. * (264) *HEATH, J. I am of the same opinion. It is a matter of the last consequence, that it should be known upon what occasions bystanders may interfere to prevent felony.(a) In the riots which took place in the year 1780, this matter was much misunderstood, and a general persuasion prevailed, that no indifferent person could interpose without the authority of a magistrate; in consequence of which much mischief was done, which might otherwise have been prevented. In this case the Defendants broke and entered the Plaintiff's house in order to prevent the commission of murder, and that seems to have been admitted to be a good justification. The only dispute, therefore, turus on the propriety of their conduct towards the Plaintiff after they had suffered him to go into (a) Indeed, there seems to be very high authority for the interference of private individuals in cases of riot, though no felony be committed. The question underwent a very solemn discussion in 1597 (39 E iz at which time the country was in a very unquiet state,) before all the Judges in a case which is called "Case of armes," Poph. 121., and is as follows: "Upon an assembly "of all the justices and barons at Serjeants Inn this term, on Monday the 15th "day of April, upon this question moved by ANDERSON, Ch. J. of the Com 86 mon Bench; Whether men may arm themselves to suppress riots, rebellions, "or to resist enemies, and to endeavour themselves to suppress or resist such "disturbers of the peace or quiet of the realm? And upon good deliberation "it was resolved by them all, that every justice of peace, sheriff and other "minister, or other subject of the king, where such accident happen, may do "it; and to fortify this their resolution, they perused the statute of 2 Ed 3. "which enacts, that none be so hardy as to come with force or bring force to "any place in affray of the peace, nor to go or ride armed night nor day, unless he be a servant to the king in his presence, and the ministers of the "king in the execution of his precepts, or of their office and those who are in "their company assisting them, or upon cry made for weapons to keep the peace, "and this in such places where accidents happen, upon the penalty in the same "statute contained; whereby it appeareth, that upon cry made for weapons to keep the peace, every man where such accidents happen for breaking the peace, may by the law arm himself against such evil-doers to keep the peace. "But they take it to be the more discreet way for every one in such a case to 66 attend, and be assistant to the justices, sheriffs, or other ministers of the king in the doing of it." This case is spoken of with approbation by the judges in the great case of Messenger and others, Kel. 76. and its principle is adopted by Hawkins in his pleas of the crown, lib. 1. c. 65. s. 11. where he says, "It hath been holden, that private persons may arm themselves in order to suppress a riot, from whence it seems clearly to follow, that they may also make use of arms in the suppressing of it, if there be a necessity for so doing" He adds, indeed, that it seems hazardous for private persons to go so far in common cases, and that such violent methods seem only proper against such riots as savour of rebellion. HAND the bed-room. Now, I think that enough is stated in the justifica- 1800. tion to support the verdict, since the jury have thought that the conduct of the Defendants was right. After verdict we may suppose any thing. We may suppose that the Plaintiff's passion continued, and that he again declared that he would kill his wife. *Rook, J. I am of the same opinion. It is highly important that by-standers should know when they are authorized to interfere. In this case the life of the wife was in danger from the act of the husband. The Defendants, therefore, were justified in breaking open the house, and doing what was necessary for the preservation of her life. The jury find that they have done this. CHAMBRE, J. There is a great difference between the right of a private person in cases of intended felony and of breach of the peace. It is lawful for a private person to do any thing to prevent the perpetration of a felony. In this case it is stated, that the Plaintiff purposed feloniously to kill and slay his wife, to prevent which the Defendants interfered in the manner stated in the .plea. The justification has been found by the verdict; and the Defendants, therefore, are entitled to the judgment of the Court. Rule discharged. COCK BAKER & al. * (265) Ward v. Harris. July 1st. ation that the Plain tiff had ASSUMPSIT. The first count of the declaration stated, that The decwhereas on, &c. at, &c. in consideration that the Plaintiff, at the laration stated, special instance and request of the Defendant, then and there sold that in to the Defendant a certain horse of the said Plaintiff, at and for a considercertain quantity of certain oil, to be therefore delivered by the said Defendant to the said Plaintiff within a certain time, which elapsed before the commencement of this suit, and then and there delivered the said horse to the said Defendant, he the said Defendant undertook, and then and there faithfully promised the said Plaintiff to deliver the said oil to the said Plaintiff according ly; yet, the Defendant, although often requested, hath not delivered the said oil, or any part thereof, to the said Plaintiff, but hath hitherto wholly neglected, &c. sold to the Defendant a cerof the tain horse Plaintiff, at and for a certain quantity of certain oil, livered which The other counts were general, and non assumpsit was pleaded. The cause was tried before Lord ELDON, Ch. J. at the sittings to be deafter last Hilary term, and a verdict was found for the Plaintiff. within a In Easter term last, Cockell, Serjt. having obtained a rule cal- certain ling upon the Plaintiff to shew cause why judgment should not be time, arrested for the uncertainty of the declaration, *Shepherd and Bayley, Serjts. shewed cause. Whatever might* (266) have been the fate of this declaration on special demurrer, still it is well enough after verdict. Indeed, if the objection of uncertainty prevail in this instance, it must prevail in almost every ac tion of assumpsit. It is true, that in trespass more certainty is requisite as to the thing demanded. But both Lord MANSFIELD and YATES, J. in Bertie v. Pickering, et Ux. 4 Burr. 2455. ob- fendant had elapsthe commencement of ed before the suit, the De promised to deliver the said oil accordingly. Held, well enough after verdict. |