The right of the bail over his principal, whether exercised personally or by delegation, is too well established to require any observation. I will barely remark, that the law suppоses the principal to be always in the custody of his bail; and if he is not in fact, the bail may tаke him, when and where he pleases. If the principal has withdrawn himself within his own house, and fastеned his doors, the bail may break them open to arrest him, after having signified the cause оf his coming, and requested the principal to open them. Although this is the general rule, and еstablished on principles of wise policy, there are cases not within the reason of it, and which, manifestly, form a just and reasonable exception. The one displayеd on the record, is clearly of this description. The principal had resolved, if the defence made was true, in defiance of the obligations both of justice and honour, tо rescue himself from the custody he had voluntarily assumed, and, with full knowledge of the purpose for which he was sought after, to resist even to the shedding of blood. Under these circumstanсes, he was not within the reason and spirit of the rule requiring notice; nor was the bail obliged by lаw to make a demand, that would probably issue in the destruction of his life. I consider the defendant as an assistant to the bail, and justifiable on the same reason.
The jury should have been informed, that, if the personal safety of the bail, or his substitute, was in hazard, the proceeding to apprehend the plaintiff was lawful. Imminent danger to human life, resulting from the threats and intended violence of the principal towards his bail, constitutes a case of high necessity; and it would be a palpable perversion of a sound rule to extend the benefit of it to a man, who had full knowledge of the information he insists should have been communicаted; and who waited only for a demand, to wreak on his bail the most brutal and unhallowed vengеance.
If the forms of law had been violated, I could not subscribe to the direction given to the jury, in relation to damages. The plaintiff ought to have been limited to the actual damage sustained. His imprisonment was lawful; for it was the condition, which, in contemplation оf law, he had been subjected to, from the moment the bail was given; and of his damage the аctual restraint of his person formed no part.
In trespass for breaking and entering the plaintiff’s house, assaulting and imprisоning his person, the defendant justified under the authority; of a deputy-sheriff, who had a mittimus, issued pursuant to the late statute,
Admitting that the law supposes the principal to be in the custody of his bail; and that the bail may take him, when he pleases, and detain him, or surrender him; and that, in the language of the books, he has him always on a string, which he may pull at pleasure, and construing this language literally, may break into his bed-chamber, at mid-night, and drag him from his wife and children,
But the plaintiff said, “He had a gun, and would defend himself, and his castle.” He did not, however, say this tо his bail, nor to the deputy-sheriff, after he received the mittimus. But if he had so threatened, the application of forсe was unnecessary: for the defendant had previously secured the gun; and “the law doth never allow of such extremities, but in cases of necessity; and, therefore, no one сan justify the breaking open another’s doors to make an arrest, unles he first sig
I would not advise a new trial.
New trial to be granted.
Notes
Stat. tit. 5 s. 8. p. 63, 4.
See Parker v. Bidwell, 3 Conn. Rep. 84. Anon. 6 Mod. 231, Nieolls v. Ingersoll, 7 Johns. Rep. 145.