Wilde, Serjt., and R. V. Richards, for the plaintiffs. Russell, and Jones, Serjts., for the defendant. [Attornies-Gates, and In Person.] 1830. WILLIAMS บ. WOODWARD. STEPHENS v. MYERS. July 17th. ASSAULT. The declaration stated, that the defendant A. was advanc. threatened and attempted to assault the plaintiff. Plea-ing in a threatNot guilty. ening attitude, with an inten tion to strike B., would have al- been stopt: Held, that it was an assault in point of law, though, at the particular mo ment when A. was stopt, he enough for his was not near It appeared, that the plaintiff was acting as chairman, at so that his blow a parish meeting, and sat at the head of a table, at which table the defendant also sat, there being about six or seven persons between him and the plaintiff. The defendant having, in the course of some angry discussion, which took place, been very vociferous, and interrupted the proceedings of the meeting, a motion was made, that he should be turned out, which was carried by a very large majority. Upon this, the defendant said, he would rather pull the chairman out of the chair, than be turned out of the room; and immediately advanced with his fist clenched toward the chairman, but was stopt by the churchwarden, who sat next but one to the chairman, at a time when he was not near enough for any blow he might have meditated to have reached the chairman; but the witnesses said, that it seemed to them that he was advancing with an intention to strike the chairman. Spankie, Serjt., for the defendant, upon this evidence, contended, that no assault had been committed, as there was no power in the defendant, from the situation of the parties, to execute his threat-there was not a present ability he had not the means of executing his intention at the time he was stopt. TINDAL, C. J., in his summing up, said-It is not every threat, when there is no actual personal violence, that con blow to take ef fect. 1830. STEPHENS v. MYERS. stitutes an assault, there must, in all cases, be the means of carrying the threat into effect. The question I shall leave to you will be, whether the defendant was advancing at the time, in a threatening attitude, to strike the chairman, so that his blow would almost immediately have reached the chairman, if he had not been stopt; then, though he was not near enough at the time to have struck him, yet if he was advancing with that intent, I think it amounts to an assault in law. If he was so advancing, that, within a second or two of time, he would have reached the plaintiff, it seems to me it is an assault in law. If you think he was not advancing to strike the plaintiff, then only can you find your verdict for the defendant; otherwise you must find it for the plaintiff, and give him such damages, as you think the nature of the case requires. Verdict for the plaintiff-Damages, ls. Andrews, Serjt., and Steer, for the plaintiff. Spankie, Serjt., and Thesiger, for the defendant. Nov. 30. Sittings at Westminster, after Michaelmas Term, 1830. HANWAY V. BOULTBEE and MARY his Wife. False imprison- TRESPASS. The first count of the declaration stat ment. B. to sell goods, and a dog of B. coming out of the house, A.. knocked out one ed, that the defendant, Mary, being the wife of the other defendant, on the 12th day of October, 1829, seized and laid hold of the plaintiff, and forced and compelled him to go along a certain public highway, to the dwelling-house of its eyes, for which B.'s wife caused A. to be apprehended:-Held, that it was for the Jury to say, whether A. had struck the dog for his own preservation, and fairly to protect himself; or whether it was a wilful and malicious trespass on his part. To justify the apprehension of an offender under the malicious injuries act, 7 & 8 Geo. 4, c. 30, the offender must be taken in the fact, or on a quick pursuit. of a certain magistrate, and then and there imprisoned him &c. for the space of six hours. The second count stated that the defendant Mary, then and still being the wife of the other defendant, assaulted the plaintiff. The third count stated, that the defendant Mary, then and still being the wife of the other defendant, seized and took a certain pack, and certain goods of the plaintiff, (enumerating them). Pleas-First, the general issue; second, a justification under the stat. 7 & 8 Geo. 4, c. 30 (a). Replication («) As a plea framed under this act is not to be found in any of the printed collections, a copy of it may be acceptable. Plea. And for a further plea in this behalf as to making an assault upon the said plaintiff, and seizing and laying hold of the said plaintiff, and forcing and compelling the said plaintiff to go from and out of a certain dwelling-house of the said defendant Richard Moore Boultbee, into a certain public highway, and in and along divers public highways, to the dwelling-house of the said magistrate, in the said declaration mentioned, and on that occasion imprisoning and keeping and detaining the said plaintiff in prison for a certain small space of time, part of the said time in the said declaration mentioned, the said defendants, by leave of the Court here for that purpose first had and obtained, according to the form of the statute in that case made and provided, say, that the said plaintiff ought not to have or maintain his aforesaid action against them the said defendants, because they say, that the said plaintiff heretofore, to wit, at the said time when, &c., to wit, in the county aforesaid, wilfully committed damage and injury to and upon certain personal property of the said defendant Richard Moore Boultbee, to wit, to and upon a certain dog of the said Richard Moore Boultbee, of great value, to wit, of the value of 21., that is to say, by then and there wilfully beating and wounding the said dog, with a certain large stick or club, and thereby knocking and beating out one of its eyes, whereby the said dog became and was greatly injured and damaged, and rendered of much less value to the said Richard Moore Boultbie, the said plaintiff not then and there acting as aforesaid under a fair or reasonable supposition that he had a right to do the act aforesaid, and the said trespass not being committed in hunting, fishing, or in the pursuit of game, contrary to the form of the statute in that case made and provided. And the said defendants further say, that the said plaintiff was then and there, at the said time when, &c., found committing the said offence against the said statute, whereupon the said defendant Mary, then and there being the wife and servant of the said other 1830. HANWAY บ. BOULTBEE. 1830. HANWAY บ. BOULTBEE. That the defendant Mary, of her own wrong, committed the trespass attempted to be justified. It appeared that the plaintiff, being a hawker and pedlar, went in the way of his business with his pack of goods to the house of Mr. Boultbee, and that a Scotch terrier dog of Mr. Boultbee came out of the house and ran at the plaintiff, who with a stick gave the dog a blow which knocked out one of its eyes. The plaintiff then went away, and Mrs. Boultbee immediately sent a boy to fetch a constable. The boy returned with the constable, and Mrs. Boultbee directed them to go after the plaintiff and apprehend him for the injury done to the dog. The constable and boy went in pursuit of the plaintiff, and overtook him at a distance of about a mile from Mr. Boultbee's house. The constable took him to Mr. Boultbee's, and took his pack from him, Mrs. B. desiring the constable to defendant, at the said time when servant as aforesaid, give information and make complaint to the said magistrate against the said plaintiff, for the offence aforesaid, and so the said plaintiff, for the offence aforesaid, the said Mary did necessarily imprison, and keep and detain the said plaintiff in prison, for a certain small space of time, to wit, for the space of one quarter of an hour, while she the said Mary was taking the said plaintiff to the said dwelling-house of the said magistrate as aforesaid, and so giving such information, and making such complaint as aforesaid, as it was lawful for her to do for the cause aforesaid, which are the same supposed trespasses in the introductory part of this plea mentioned; and whereof the said plaintiff hath above complained against her. And this the said defendants are ready to verify, &c. put the pack in a room there, which was done. The plaintiff was taken before a magistrate, and was afterwards allowed to depart. TINDAL, C. J. (in summing up).—To authorize the imprisonment of the plaintiff, under the Act of Parliament 7 & 8 Geo. 4, c. 30 (b), the plaintiff must have committed either a 'wilful or a malicious injury. The first question is, whether this was a wilful injury to the dog. It does not appear that the dog was of a description to be dangerous, or that it was at all necessary that the plaintiff should have struck it. You will therefore say, whether the plaintiff struck this dog for his own preservation, and fairly to protect himself, or whether it was a wilful and malicious trespass on his part. There is also, besides this, another question. It is necessary, under this Act of Parliament, that the party apprehended should be taken in the fact, or else in quick pursuit (c). In this case, a boy is sent for a constable, and they, having received their directions from Mrs. Boultbee, are sent in pursuit of the plaintiff, and find (b) By the stat. 7 & 8 Geo. 4, c. 30, s. 24, any person who shall wilfully or maliciously commit any damage, injury, or spoil to or upon any real or personal property, may be compelled by a magistrate to pay a reasonable compensation; and, if he does not, may be committed. See this sect. Carr. Supp. 353. With respect to the question whether dogs are personal property, see the case of Ireland v. Higgins, Cro. Eliz. 125, where a plaintiff recovered in trover for a greyhound. In that case there is another case cited, where a person was held to be justified in committing an assault, to keep possession of his dog. By sect. 28 of this statute it is enacted "That any person found By sect. 41 of this act, defend- (c) See the case of Rer v. Curran, ante, Vol. 3, p. 397. |