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9 CAB. &P. 828.

BLAKE V. BARNARD [626] July 8th, 1840.


BLAKE V. BAENARD.

985

(In an action for an assault the declaration stated that the defendant assaulted the plaintiff, " and also then presented a certain pistol loaded with gunpowder, ball, and shot, at the plaintiff, and threatened and offered therewith to shoot the plaintiff, and blow out his brains." To this the defendant pleaded not guilty, and it was proved that the parties being on board a ship, the defendant (who was the captain) went into his cabin and brought out a pistol and cocked it, and presented it at the plaintiff's head, saying, that if the plaintiff was not quiet he would blow his brains out:Held, that if the defendant, at the time he presented the pistol, used words shewing that it was not his intention to shoot the plaintiff, this would be no assault:Held, also, that it was incumbent on the plaintiff to substantiate the allegation in the declaration, that the pistol was loaded with gunpowder, ball, and shot, and that unless the jury were satisfied that the pistol was loaded they ought to find for the defendant.) Assault and false imprisonment.The first count of the declaration stated, that the defendant assaulted and beat the plaintiff, " and also then presented a certain pistol loaded with gunpowder, ball, and shot at the plaintiff, and threatened and offered therewith to shoot the plaintiff and blow out his brains." 2nd count for false imprisonment. PleasFirst, to the whole declaration, not guilty.Second, as to the first count, " except as to the presenting of the said pistol, and threatening and offering therewith to shoot the plaintiff as therein mentioned," that the plaintifE and William Lock were fighting together, whereupon the defendant, being present, in order to separate them, gently laid his hands on the plaintiff, whereupon the plaintiff made an assault on the defendant, and would have beaten, wounded, and ill-treated the defendant, if the defendant had not defended himself; whereupon the defendant did defend himself, and in so doing, did necessarily and to a little degree, commit the trespasses in the introductory part of this plea mentioned, doing no unnecessary damage to the plaintiff.Third, as to the first count with a similar exception, that the defendant was commander of the ship or vessel " Eleanor," and the plaintiff a mariner on board the same and belonging thereto; and that the plaintiff and William Lock were fighting together on board the said ship, and the plaintiff was conducting himself in a riotous, mutinous, and disorderly manner ; whereupon the defendant so being such commander, and, as such commander, for the preservation of discipline and order in the said ship, and that the plaintiff and W. Lock might do no hurt to each other, and in order to separate them, gently [627] laid his hands on the plaintiff, whereupon the plaintiff made an assault on the defendant, &c. (as in the last plea). Fourth, to the first countson assault demesne. Fifth, to the second countthat the defendant was commander of the "Eleanor," and the plaintiff a mariner in and belonging to her, and that the plaintiff had deserted the ship for five hours, and was fighting with W. Lock, and behaving in a mutinous, disorderly, and improper manner on board the ship, and it was necessary that for this assault and conduct the plaintiff should be kept apart from the other mariners on board the ship : whereupon the defendant, so being such commander, and as such commander, for the preservation of discipline and order on board the ship, and for imprisoning and punishing the plaintiff for the cause aforesaid, gently laid his hands on the plaintiff, and imprisoned him. Replication to the second and third pleas, that the defendant committed the trespasses in the introductory parts of those pleas mentioned, with more force and violence than was necessary for the purposes in those pleas mentioned. To the fourth plea, de injuria, and to the fifth plea, that the defendant imprisoned the plaintiff for a longer time and with more severity than was reasonable, necessary, or lawful, in respect of the offences and misconduct of the plaintiff in the said last plea mentionedRejoinder, denying the excesses charged by replication to the second, third, and fifth pleas. It was proved by Mr. Coates, the surgeon of the ship " Eleanor," that she was a South Sea Whaler, and that on the 13th of December, 1839, the ship being at anchor in the Bay of Conception, which ia on the Coast of Chili, the plaintiff and others had gone ashore and did not return on board till the next morning : and that on that morning William Lock challenged the plaintiff to fight, when some blows passed

9 CAR. & P. 628.

between them, and the defendant, who was the commander of the ship, came up and struck the plaintiff, and the plaintiff struck him ; whereupon the defendant [628] ordered the plaintiff below, and went below himself. This witness also proved that the plaintiff was not allowed to leave his berth for about four months, at the end of which time the ship arrived in the docks. It was also proved by a cabin-boy named Coleman, that on the 14th of December, 1839, he saw the plaintiff and defendant go below, as stated by the last witness, and he also said as follows:" The captain went into his cabin, brought out a pistol and cocked it, and presented it at Blake's head, and said if Blake was not quiet he would blow his brains out." Lord Abinger, C. B. (in summing up).With respect to the assault which is alleged to have been committed with the pistol, if the defendant, at the time he presented it, added words shewing that it was not his intention to shoot the plaintiff, that would be no assault; and besides, there is no evidence that the pistol was loaded. It is stated in the declaration, that the pistol was loaded with gunpowder, ball, and shot, and it is for the plaintiff to make that out, and he has not done so. If the pistol was not loaded, it would be no assault; and unless you are satisfied that the pistol was loaded, you ought to find for the defendant as to that part of the case, and return a verdict that the defendant was guilty of assaulting the plaintiff, but not with a pistol (a). His Lordship left the case to the jury on the questions of excess raised on the second, third, and fifth pleas. Verdict for the plaintiff on the fourth issue, and on the first issue, except as to the assault with the pistol; and for the defendant as to the residue. Shee, Serjeant, and Miller, for the plaintiff. Thesiger and Chandless for the defendant. [AttorniesWontner and Lawrence & Blenkarne.]

(a) See the cases of Reg. v. St. George, ante, p. 483, and Reg. v. Oxford, ante, p. 525.

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