the house? it is plain that he did; 2nd, Was the plaintiff conducting himself in an improper manner and disturbing the quiet of the house, and did the defendant desire him to leave, and on his refusal to do so put him out? On this question it is proved by the plaintiff's own witness that the plaintiff was so conducting himself; for even if the plaintiff had been ill-used by Mr Lawrence, he was not justified in saying he would follow him into every room in the house; and if he did so say, the landlord had a right to tell him to leave the house and insist on his doing so. Then, did the defendant request the plaintiff to depart before force was used? It is essential to the defence that that should be shewn; for although a person be in the house of another and misconducting himself, the owner has no right to turn him out by force, without first requesting him to depart.

[But not if greater than is necessary for defence.]

COCKCROFT v. SMITH.

QUEEN'S BENCH. 1705.

2 SALKELD 642.

In trespass for an assault, battery and mayhem, defendant pleaded son assault demesne; which was admitted to be a good plea in mayhem. But the question was, What assault was sufficient to maintain such a plea in mayhem ?

HOLT, C.J., said :-That he did not think it reasonable that for every assault a man should be banged with a cudgel. The meaning of the plea was, That he struck in his own defence. If A strike B, and B strikes again, and they close immediately, and in the scuffle B mayhems A, that is son assault: but if upon a little blow given by A to B, B gives him a blow that mayhems him, that is not son assault demesne.

POWELL, J., agreed. For the reason why son assault is a good plea in mayhem, is, because it might be such an assault as endangered the defendant's life.

BRISTOL ASSIZES.

[Excessive force in self-defence.]

REGINA v. HEWLETT.

1858.

1 FOSTER AND FINLASON 91.

Wounding with intent. The prisoner was indicted for wounding with intent to do grievous bodily harm to the prosecutor. It appeared that the prisoner, with a knife, struck at one Witby. The prosecutor interfered, and caught on his arm the blow intended for Witby.

CROWDER, J. This will not sustain the charge of wounding with intent to do grievous bodily harm to the prosecutor', but he may be convicted of unlawful wounding.

It appeared that the prosecutor, Witby, and two women, who had been drinking together, met the prisoner at midnight on the highway. Some words passed between them, when Witby struck the prisoner. The prisoner then made the blow which was the subject of the charge. It was contended for him that, under the circumstances, he was justified in doing so.

CROWDER, J. Unless the prisoner apprehended robbery, or some similar offence, or danger to life or serious bodily danger (not simply being knocked down), he would not be justified in using the knife in self-defence.

Verdict, Not guilty.

[Excessive force in self-defence.]

OSBORN AND ANOTHER v. VEITCH AND ANOTHER. MAIDSTONE ASSIZES. 1858. 1 FOSTER AND FINLASON 317.

Action for trespass and assault. Pleas: not guilty, and son assault demesne.

Issue.

The plaintiffs were owners of a field in which the defendants were walking with loaded guns at the half-cock in their hands. The plaintiffs desired them to withdraw and give their names, and on their refusal, advanced towards them apparently as if to apprehend them. The defendants half raised their guns, pointed them towards the

1 [EDITOR'S NOTE. It would be otherwise had the prisoner stabbed the prosecutor in consequence of a supposition that he was Witby. See R. v. Smith, Dearsly, 559.]

1

plaintiffs, and threatened to shoot them. The plaintiffs (one of whom was a constable) then gave them in charge to a policeman for shooting with intent. He, with plaintiffs' assistance, seized and handcuffed them. E. James, for the defendants, submitted that there was no assault. For, as the guns were only at half-cock, there was no "present ability" to execute the threat'.

Sed per WILLES, J.

an assault.

Pointing a loaded gun at a person is in law It is immaterial that it is at half-cock; cocking it is an instantaneous act; and there is a present ability" of doing the act threatened, for it can be done in an instant.

E. James. The assault was in self-defence; the defendants were only trespassers, so the attempt to apprehend them was unlawful. Excess is not even assigned?.

WILLES, J. It was not necessary that it should be. To shoot a man is not a lawful way of repelling an assault. No doubt the charge of shooting with intent was idle3; and the assault [i.e. the pointing of the guns] was only a misdemeanor. The handcuffing was utterly unlawful.

Verdict for the plaintiffs; damages one farthing.

[Force must not be continued after self-defence has ceased to be

necessary.]

REGINA v. DRISCOLL.

CENTRAL CRIMINAL COURT. 1841.

CARRINGTON AND MARSHMAN 214.

The prisoner was indicted for unlawfully, maliciously, and feloniously assaulting John Sullivan, on the 15th of August, and wounding him in and upon the left side of the neck and left cheek, with intent to do him some grievous bodily harm.

It appeared that the prosecutor and the prisoner had some dispute, in the course of which the prisoner called the prosecutor a liar; whereupon the prosecutor clenched his fist and was about to strike him, but the prisoner's wife interposed, and pushed him down, and the prisoner inflicted on him the injury stated in the indictment.

1 Read v. Coker, 15 C. B. 850; 22 L. J. R., C. P. 201.

2 Broughton v. Jackson, 18 Q. B. 378.

3 See Hogg v. Burgess, 27 L. J. R. Exch.

COLERIDGE, J., in summing up, said-If one man strikes another a blow, that other has a right to defend himself, and to strike a blow in his defence. But he has no right to revenge himself: and if, when all the danger is past, he strikes a blow not necessary for his defence, he commits an assault and a battery. It is a common error to suppose that one person has a right to strike another who has struck him, in order to revenge himself; and it very often influences people's minds. I have, therefore, thought it right to state what the law upon the subject really is.

Verdict, Guilty; sentence, transportation for fifteen years.

SECTION VI.

MALICIOUS OFFENCES AGAINST PROPERTY.

[Malice being necessary, the causing a fire unintentionally, even by a felony, is not arson.]

THE QUEEN v. FAULKNER.

IRISH CROWN CASE RESERVED.

1876.

11 IRISH REP. C. L. 8.

Case reserved by Lawson, J., at the Cork Summer Assizes, 1876. The prisoner was indicted under the 24 and 25 Vict. c. 97, for arson of a ship, the "Zemindar." The indictment contained two counts; the first charged that the prisoner feloniously, unlawfully, and maliciously did set fire to the ship with intent thereby to prejudice the owners of the ship; the second was similar, but charged the intent to be to prejudice the owners of the goods and chattels on board the ship. It was proved that the "Zemindar" was on her voyage home with a cargo of rum, sugar, and cotton; that the prisoner was a seaman on board; that he went into the forecastle hold, opened the sliding door in the bulk-head, and so got into the hold where the rum was stored. He had no business there, and no authority to go there, and went for the purpose of stealing some rum. He bored a hole in the cask with a gimlet; the rum ran out; when trying to put a spile in the hole out of which the rum was running, he had a lighted match in his hand, and the rum caught fire. The prisoner himself was burned on the

arms and neck, and the ship caught fire and was completely destroyed. ...The Crown counsel conceded that the prisoner had no intention of burning the vessel or of igniting the rum, and raised no question as to prisoner's imagining or having any ground for supposing that the fire would be the result or consequence of his act in stealing the rum......... I told the jury that, although the prisoner had no actual intention of burning the vessel, still, if they found that he was engaged in stealing rum, and that the fire took place in the manner above stated, they ought to find him guilty. The jury convicted the prisoner on both counts, and he was sentenced to seven years' penal servitude.

*

O'BRIEN, J. With respect to The Queen v. Pembliton', it appears to me there were much stronger grounds in that case for upholding the conviction than exist in the case before us. In that case, the breaking of the window was the act of the prisoner. He threw the stone that broke it. He threw it with the unlawful intent of striking some one of the crowd about; and the breaking of the window was the direct and immediate result of his act. Yet the Court unanimously quashed the conviction; upon the ground that, although the prisoner threw the stone intending to strike some one or more persons, he did not intend to break the window. The Court at the same time intimated their opinion that if the jury had found that the prisoner, knowing the window was there, might have reasonably expected that the result of his act would be the breaking of the window, then the conviction should be upheld.

During the argument of this case, the Crown counsel required us to assume that the jury found their verdict upon the ground that in their opinion the prisoner may have expected that the fire would be the consequence of his act in stealing the rum, but nevertheless did the act recklessly, not caring whether the fire took place or not. But at the trial there was not even a suggestion of any such ground. And we cannot assume that the jury formed an opinion which there was no evidence to sustain, and which would be altogether inconsistent with the circumstances under which the fire took place. The reasonable inference from the evidence is that the prisoner lighted the match for the purpose of putting the spile in the hole to stop the further running of the rum, and that while he was attempting to do so the rum came in contact with the lighted match and took fire.

The recent case of The Queen v. Welch has been also referred to; and has been relied on by the Crown counsel on the ground that,

1 L. R. 2 C. C. R. 119. Infra, p. 157.

21 Q. B. D. 23.