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9CAB. & P . 828. B L A K E V. B A R N A R D 985[626] July 8th, 1840.

BLAKE V. BAENARD.(In an action for an assault the declaration stated that the defendant assaulted theplaintiff, and also then presented a certain pistol loaded with gunpowder, ball,and shot, at the plaintiff, and threatened and offered therewith to shoot theplaintiff, 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 (whowas 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 notquiet he would blow his brains out:Held, that if the defendant, at the timehe presented the pistol, used words shewing that it was not his intention toshoot theplaintiff,this would be no assault:Held, also, that it was incumbenton the plaintiff to substantiate the allegation in the declaration, that the pistolwas loaded with gunpowder, ball, and shot, and that unless the jury weresatisfied 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 acertain pistol loaded with gunpowder, ball, and shot at theplaintiff, and threatenedand offered therewith to shoot the plaintiff and blow out his brains. 2nd count forfalse 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 there-with to shoot the plaintiff as therein mentioned, that the plaintifE and WilliamLock were fighting together, whereupon the defendant, being present, in order toseparate them, gently laid his hands on theplaintiff, whereupon the plaintiff madean assault on the defendant, and would have beaten, wounded, and ill-treatedthe defendant, if the defendant had not defended himself; whereupon the de-fendant 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 nounnecessary 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, andthe plaintiff a mariner on board the same and belonging thereto; and that the plaintiffand William Lock were fighting together on board the said ship, and the plaintiffwas conducting himself in a riotous, mutinous, and disorderly manner ; whereuponthe defendant so being such commander, and, as such commander, for the preserva-tion of discipline and order in the said ship, and that the plaintiff and W. Lockmight do no hurt to each other, and in order to separate them, gently [627] laid hishands on theplaintiff,whereupon the plaintiff made an assault on the defendant, &c.(as in the last plea). Fourth, to the first countson assault demesne. Fifth, tothe second countthat the defendant was commander of the Eleanor, and theplaintiff a mariner in and belonging to her, and that the plaintiff had deserted theship 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 forthis assault and conduct the plaintiff should be kept apart from the other marinerson board the ship : whereupon the defendant, so being such commander, and assuch commander, for the preservation of discipline and order on board the ship, andfor imprisoning and punishing the plaintiff for the cause aforesaid, gently laid hishands on theplaintiff, and imprisoned him.

Replication to the second and third pleas, that the defendant committed thetrespasses in the introductory parts of those pleas mentioned, with more force andviolence than was necessary for the purposes in those pleas mentioned.To the fourth plea, deinjuria and to the fifth plea, that the defendant imprisonedthe 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 lastplea mentionedRejoinder, denying the excesses charged by replication to thesecond, third, and fifth pleas.It was proved by Mr. Coates, the surgeon of the ship Eleanor, that she was aSouth Sea Whaler, and that on the 13th of December, 1839, the ship being at anchorin the Bay of Conception, which ia on the Coast of Chili, the plaintiff and others hadgone ashore and did not return on board till the next morning : and that on thatmorning William Lock challenged the plaintiff to fight, when some blows passed

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9 CAR. P. 628.

between them, and the defendant, who was the commander of the ship, came upand struck the plaintiff, and the plaintiff struck him; whereupon the defendant[628]ordered th e plaintiff below, and went belowhimself. This witness also provedth at th e plaintiff was not allowed to leave his berth for about four m onths, a t th eend of which time the ship arrived in the docks. It was also proved by a cabin-boynamed C oleman, tha t on th e 14th of D ecember, 1839, he saw the plaintiff and de-fendant go below, as stated by the las t witness, and he also said as follows: Thecaptain went into his cabin, brought out a pistol and cocked it, and presented it atBlake'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 isalleged to have been committed with the pistol, if the defendant, at the time hepresented it, added words shewing that it was not his intention to shoot the plaintiff,tha t would be no assa ult; and besides, there is no evidence tha t th e pistol wasloaded. I t is stated in the declaration, that th e 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 as sault ; and unless you are satisfiedthat the pistol was loaded, you ought to find for the defendant as to that part of thecase, 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 thesecond, third, and fifth pleas.Verdict for th e plaintiff on th e fourth issue, and on the first issue, except as tothe assault with the p isto l; and for the defendant as to the residue.Shee, Serjeant, and Miller, for theplaintiff.Thesiger and Chandless for the defendant.[AttorniesWontner and Lawrence Blenkarne.]

(a)Seethe cases ofReg.v.St.George,ante,p .483,andReg.v.Oxford ante, p. 525.