1822.

DALE

v.

WOOD.

found in the affirmative; and accordingly gave a verdict for the defendant.

Mr. Serjeant Lens now applied for a rule nisi, that this verdict might be set aside, and a new trial granted; on the grounds-first, that as for any thing that appeared at the trial, the assault by the plaintiff's holding up his stick had ceased, as he might have done so in the first instance, whilst he was on horseback; after which he got off, and might have remounted before the defendant attacked him and secondly, that son assault demesne was not a good plea; as the declaration charged the defendant with having beat and wounded the plaintiff.

Lord Chief Justice DALLAS.-It was matter of evidence, whether the assault was proportionable to the battery; and in King v. Phippard (a), it was held, that if the defendant pleads son assault demesne, and the plaintiff can justify it, such justification ought to be pleaded specially; for it cannot be given in evidence under the general replication of de injuria sua propriâ. So here, if the defendant had assaulted the plaintiff, and beat him more violently than he ought to have done, or was necessary for the defence of himself, the plaintiff ought to have replied specially.

Mr. Justice PARK.-It was proved at the trial, by a witness who was close to the parties when the assault took place, that the defendant had been formerly servant to the plaintiff, and that on his leaving him, he had been taken into the employ of one Francis : that the plaintiff, being on horseback, and meeting him in the road, provoked him, by asking him how

(a) Carth. 280.

Francis could think of taking him as a servant, and shook his stick at him; on which the defendant committed the assault in question. I told the Jury, that every assault did not justify every battery; but that it must appear that the assault was in some degree proportionable to the maihem and I did so on the authority of Cockcraft v. Smith (a), where Lord Chief Justice Holt directed the Jury to find a verdict for the defendant, the first assault being by tilting a form on which the defendant sat, whereby he fell; and the main was, that the defendant bit off the plaintiff's finger. I agree with my Lord Chief Justice, that under the circumstances, the plaintiff ought to have replied specially; and from the evidence at the trial, I think there is no reason to disturb the verdict found for the defendant.

Mr. Justice BURROUGH.-The case of Cockcraft v. Smith has decided, that although the plaintiff set out a maihem in his declaration, yet that the plea of son assault demesne is a good plea; and that the defendant need not plead that the plaintiff maimed and wounded him. The mere scratching a finger is a wounding; and as the plaintiff did not reply specially, I concur with my Lord Chief Justice and my Brother Park, in thinking that there is no ground to send this case down to another trial.

Mr. Justice RICHARDSON concurred.

1822.

DALE

v.

WOOD.

Rule refused.

(a) 2 Salk. 642. S. C. 1 Ld. Raym. 177. Bull. Ni. Pri. 7th ed. 18, 1 Selw. Ni. Pri. 3d ed. 31.

1822.

Monday, April 29th.

Sells v.

HOARE and others.

Where a wit

ness was sworn

THIS was an action of assumpsit, and brought to re

on the Gospels cover the value of certain fixtures left by the plaintiff at the trial, and in a public-house, which he had held under the dewards discover- fendants as brewers.

it was after

ed that he was

a Jew, and had

been sworn in Held, that any objection as to his testimony was too late after verdict; and that the oath as taken

a false name :

At the trial of the cause, before Lord Chief Justice Dallas, at Guildhall, at the Sittings after the last Term, a witness, calling himself James Manning, was sworn in the usual manner, on the New Testament; who stated that he was acquainted with the plaintiff, and that one of the defendants, in a conversation with by the witness, the witness, had admitted that they were indebted to was binding on him, as it the plaintiff in 1007. for repairing the premises, and for fixtures left by him at the time of his relinquishing them to the defendants; and the Jury accordingly found a verdict for the plaintiff.

would subject

him to the pe

nalties of perjury if he had sworn falsely.

Mr. Serjeant Vaughan now applied for a rule nisi, that this verdict might be set aside; and a new trial granted; on affidavits which stated that it had been discovered since the trial, that the real name of the witness was Solly Joseph Manning; that he was a Jew before and at the time of the trial; and that he had since regularly attended at the Synagogue: and it was also sworn, that neither of the defendants had ever any conversation with him on any occasion whatever. The learned Serjeant submitted, that the Jury must have relied on his testimony, by finding a verdict for the plaintiff; and that as he had not been sworn on the Pentateuch, he did not consider the oath he had taken as binding; and it was now expressly

sworn that he never had any conversation with either of the defendants. He also submitted, that the verdict was against the weight of evidence.

Lord Chief Justice DALLAS.-The Jury certainly gave credit to the testimony of Manning; and he swore positively to a conversation he had with one of the defendants, on the nature of the plaintiff's claim. Speaking for myself, I was not satisfied with the conduct of the witness; and the story he told was highly improbable. The plaintiff had quitted the premises more than two years before he brought the present action. I remarked this to the Jury; and they returned a verdict on the facts before them. With respect to the affidavits as to the witness's having been improperly sworn, they seem to me to be entirely out of the question; and it would lead to a most dangerous practice, if the Court were to receive them. The objection should have been made at the trial; and the correct and proper time for asking a witness whether the form of administering the oath is such as will be binding upon his conscience, is previous to the administration of the oath. Besides, it does not appear but that the oath, as taken by the witness, was so far binding on him, as to make him legally and religiously responsible.

Mr. Justice PARK.-The witness appeared as a Christian, and was sworn as such at the trial. He should have been then asked whether he considered the oath taken by him to be binding upon his conscience. It therefore appears to me, that this application is too late; and it would be a dangerous precedent, if the Court were to allow it to prevail.

Mr. Justice BURROUGH.-It is quite clear, that the

1822.

SELLS

HOARE.

1822.

SELLS

v.

HOARE.

inquiries as to the religious principles of the witness, should have been made at the trial; and if applications of this nature were allowed, it would tend to impugn every verdict.

Mr. Justice RICHARDSON. I perfectly agree with the Court in thinking that the objection as to the mode of swearing the witness, should have been made at the time; and it would lead to the most dangerous consequences if it were otherwise. But I am of opinion, that the oath, as taken by the witness, was binding on him; for if he were indicted for perjury, he would have no defence: and if he were convicted of that crime he would be liable to the penalties of perjury.

The Court, however, granted the rule for a new trial, on the ground of the verdict having been given against evidence; which was afterwards made absolute on payment of costs.