fest that he was practically without any defence when all the evidence was to the effect that Jackson was then engaged in throwing rocks at Roy. While the trial Court is vested with wide discretion in permitting or refusing amendments to the pleadings, we conclude that, under the peculiar facts of this case, it was prejudicial error not to permit the amended answer to be filed. 2. The Court also erred in not permitting appellant to testify as to what he thought or believed the facts to be at the time he struck appellee. His whole defence was based on whether or not he in good faith believed that one of his sons was then and there in danger of bodily harm about to be inflicted upon him by plaintiff, and that he used no more force than was necessary, or appeared to him in the exercise of a reasonable judgment to be necessary, to protect his son from injury at the hands of plaintiff. Under such circumstances, he should be permitted to testify to what he thought or believed. It was then for the jury to determine whether or not he had reasonable grounds so to believe. The Court did not err in holding that the burden of proof was upon appellant. Torian, by etc. v. Terrell, 122 Ky. 745, 93 S. W. 10, 29 Ky. Law Rep. 306. Nor did it err in holding that a punitive damage instruction was authorized. Judgment reversed and cause remanded for further proceedings consistent with this opinion. SUB-TOPIC B. BY IMPRISONMENT 564. CHARLES VINER. A General Abridgment of Law and Equity. (2d ed., 1793. Vol. XX, p. 488.) "Trespass" (E, a). 3. If a man sees two men fighting, so that perhaps one would kill the other, it is lawful for him to part them, and put one in an house till the rage be over. 22 E. IV, 45 b. 4. But if he sees two quarrelling, and having many words as if they would fight, yet it is not lawful to take the one or the other and put in any place; for notwithstanding the words, the one will not peradventure strike the other, and so it shall be intended. 22 E. IV, 45 b. 5. If a man be in a rage and does a great deal of mischief, his parents may justify the taking and binding of him in a house, and there to use him in such a manner as shall be reasonable to reduce him to his good sense again; for it is for the benefit of the party and of all others for the mischief which he may do if he were at large. 22 Ass. 56. 565. WHEAL v. W. R. (1482. Year Book, 22 Edw. IV, fol. 45, pl. 10.) Plaintif counta que defendant emprison sa feme per tant de temps etc. scilicet per un heure. Lovel (apprentice, pur le defendant). Actio non, car il dit que le defendant obvia incountre feme en le haut chemin, et luy narra... que son baron fuit prise en prison pur un Scoce etc., et le feme fit autiel countenance que il semble que il fuit fere come un qui fuit lunatike, et le defendant, en eschewing le pluis grand mischief que poet ensuerer per lui, luy prist et mitta en sa meason per le space d'un heure; le quel fut mesme l'enprisonment. FAIRFAX, J., Cel ple n'est pas plee; car per cel ple vous voilles aver le jurrie trier si votre conceit suit, ou si vous semble que ele fuit fere come un lunatike, et ce ne poet etre. Mez si vouz voilles aver avantage, vous convient pur surmittre en feit que el fuit fere, supposer que el voilait aver lui tue ou autre mischief faire, comme igne un meason ou autre chose. . . . Et issint il fit; per quod le plaintif dit de son tort demesne sans tiel cause prist. ... 566. KELEHER v. PUTNAM SUPREME COURT OF NEW HAMPSHIRE. 1880 60 N. H. 30 TRESPASS, for assault and false imprisonment. Plea, the general issue, with a brief statement. The plaintiff kept a small store in Manchester. Putnam, one of the defendants, was a county commissioner. The evidence tended to show that the plaintiff was afflicted with insane delusions, and disturbed her neighbors and the inmates of the house where she boarded. Physicians examined her, and said she ought to be cared for. Complaint being made to Putnam, he visited her, and, in answer to his inquiries, she informed him she had friends in Lawrence, Mass., and requested to be sent there. He told her he would send a man with her. For that purpose he employed Reed, the other defendant, who called at the plaintiff's store with a carriage, and told her he had come to take her to Lawrence. She manifested a disposition not to go, and Reed partly pushed and partly carried her into the carriage which was driven to the depot, where they entered a car and were taken to Lawrence. There he delivered her to the city marshal, whom he informed of the circumstances. The Court instructed the jury that if the plaintiff requested Putnam to take her to Lawrence, or if she was insane or dangerous, or disturbing the neighborhood, and if he acted solely from the motive of placing her in the custody of her friends so that she might be properly cared for, and not to rid the county of a public charge, the defendants were not liable; and the plaintiff excepted. Verdict for the defendants. C. A. O'Connor, for the plaintiff. Sulloway, Topliff & O'Connor, for the defendants. BINGHAM, J. 1. A county commissioner has no authority over insane persons by virtue of his office. 2. The right of personal liberty is subject to some exceptions necessary to the common welfare of society. At Common Law a private citizen, without warrant, may lawfully seize and detain another in certain cases. It is justifiable to hold a man to restrain him from mischief. It is lawful to interfere in an affray which endangers the lives of the combatants. Other instances are enumerated in Colby v. Jackson, 12 N. H. 526. Under the right of self-defence it is lawful to seize and restrain any person incapable of controlling his action, whose being at large endangers the safety of others. But this is justifiable only when the urgency of the case demands immediate intervention. The right to exercise this summary remedy has its foundation in a reasonable necessity. A dangerous maniac may be restrained temporarily until he can be safely released, or can be arrested upon legal process, or committed to the asylum under legal authority. . 3. But not every insane person is dangerous. Nothing can be more harmless than some of the milder forms of insanity. Nor is it any justification that the defendants were actuated by a desire to promote the plaintiff's welfare. The right of personal liberty is deemed too sacred to be left to the determination of an irresponsible individual, however conscientious. The law gives these unfortunate persons the safeguards of legal proceedings and the care of responsible guardians. . . The Legislature has established appropriate forms of proceeding for ascertaining their conditions, imposing upon them, under the supervision of public functionaries, the restraint necessary to protect them from the imposition of others, and subjecting them to such treatment as may restore their reason. If the plaintiff requested to be taken to Lawrence, she revoked the license by resisting the removal. The instructions given to the jury were erroneous. The question was, whether the plaintiff's removal. was reasonably necessary under the circumstances of the case. Connley Torts, 176-179; Addison Torts, ch. 12, s. 2. STANLEY, J., did not sit: the others concurred. Verdict set aside. 567. DEBATES IN PARLIAMENT. (1773. Hansard's Parliamentary History, Vol. XVII, p. 837.) Bill for regulating Private Madhouses. April 22. On moving the second reading of this Bill, Mr. Thomas Townshend said: I am sorry, Sir, that the second reading of this Bill should be before so thin a House; not that I imagine it will here meet with any opposition, but I am informed that it is likely to be received in a different manner elsewhere, and consequently it would have given a more general satisfaction for gentlemen to have been well apprized of its principles. I have framed it, Sir, with a view to remedying two evils: first, the admittance into madhouses, in order to prevent improper objects being received; and secondly, to rectify the treatment of persons after they are admitted. Sir, it is shocking to humanity to think that any persons should be forced into these miserable receptacles of wretchedness. The idea of any persons being taken in without the clearest grounds for supposing them really in that stage and degree of madness which makes the measure necessary, is certainly affecting, and should be guarded against with most careful attention; but at present these houses are under no regulation: they take in who and what they please, and are subject to no inspection; surely every gentleman must at once see the necessity of such a thing being under some regulation. In the next place, Sir, as to the treatment of the unhappy objects confined in these houses, I must remind the House, that when the committee last session sat very diligently upon this matter, such instances of this were laid before them, that never conviction could be stronger than the necessity of a reform. It appeared, Sir, that within seven miles of London, there were eighteen of these houses; there must be very many poor creatures therefore, and the object of a magnitude highly deserving the attention of the House. - I have proposed in the Bill, Sir, that no person should be received into these houses without being examined by persons appointed by the college of physicians; and also, that the same learned body should appoint inspectors to examine the houses, and all the persons confined in them, once or twice a year; it is not determined which, as there was a difficulty in this point, from not knowing whether the fund provided would answer more than one annual visitation; the keepers of such houses are also to take out a licence from the same college. By these regulations I apprehend no person not mad can ever be taken in; and that when any are justly received, they shall be well taken care of; points all highly essential. . . . The Bill was then read a second time. ... 568. CHARLES READE. Hard Cash. (1863, p. 556, Chatto & Windus ed.) [Alfred Hardie, the son of Richard Hardie and the nephew of Thomas Hardie, was hated by his unprincipled curmudgeon of a father. The father would profit greatly in the income of his estate, if Alfred were out of the way. Alfred is a manly young fellow, just finishing Oxford, and is engaged to the beautiful Julia Dodd. The father cajoles and coerces the simple-minded uncle to apply to the Lunacy Commissioners for an order sending Alfred to a lunatic asylum. Under the statute, a medical certificate from two physicians is necessary; but the one is bribed and the other merely signs in routine fashion. Alfred is trapped into the asylum by a feigned message. His protestations merely bring on him the brutal violence of the keepers. After several attempts, he finally escapes, but is pursued to Julia's house; and the keeper's warrant even secures police help to recapture him by force. A friendly and public-spirited doctor, who knows the whole sordid history of private lunatic-asylums methods, champions his cause publicly; and an action at law is brought to vindicate Alfred's sanity and to recover damages for the unjust imprisonment.] So the writ being served by plaintiff's attorney, and an appearance put in by defendant's, the paper battle began by Alfred Hardie, through his attorney, serving on defendant's attorney "The Declaration." . The defendant replied to the above declaration by three pleas. 1. The defendant by Joseph Heathfield, his attorney, says he is not guilty. 2. And for a further plea, the defendant says that before and at the time of the alleged imprisonment plaintiff was a person of unsound mind and incompetent to take care of himself and a proper person to be taken care of and detained, and it was unfit, unsafe, improper, and dangerous that he should be at large; thereupon the defendant, being the uncle of the plaintiff to be taken charge of under due care and treatment, in that behalf did cause the plaintiff to be so taken charge of and detained under due care and treatment, etc. etc. The third plea was the stinger, but too long to cite verbatim; it went to this tune, that the plaintiff, at and before the time etc. had conducted himself like a person of unsound mind, etc. and two certificates that he was insane had been given by two persons duly authorized under the statutes to sign such certificates, and the defendant had believed and did bona fide believe these certificates to be true, etc. etc. The first of these pleas was a mere formal plea, under the statute. The second raised the very issue at common law the plaintiff wished to try. The third made John Compton knit his brows with perplexity. "This is a very nasty plea," said he to Alfred.. ... While trial of the issue was being postponed and postponed, the legal question had been argued and disposed of. . . . The chief of the court delivered his judgment after this fashion: "We are all of opinion that this plea is bad in law. By the common law of England, no person can be imprisoned as a lunatic unless actually insane at the time. It has been held so for centuries, and down to the last case. And wisely: for it would be most dangerous to the liberty of the subject, if a man could be imprisoned without remedy unless he could prove mala fides in the breast of the party incarcerating him. As for the statute, it does not mend the matter, but rather the reverse; for it expressly protects duly authorized persons acting under the order and certificates, and this must be construed to except from the protection of the statute the person making the order." The three puisné judges concurred and gave similar reasons. They cited Elliot v. Allen, Anderson v. Burrows, and Lord Mansfield's judgment in a very old case, the name of which I have unfortunately forgotten. Judgment was entered for the plaintiff; and the defendant's ingenious plea struck off the record; and Hardie v. Hardie became the leading case. But in law one party often wins the skirmish and the other the battle. The grand fight, as I have already said, was to be to-day. . . . Then Colt rose like a tower, and assuming the verdict as certain, asked the jury for heavy damages. He contrasted powerfully the defendant's paltry claim to pity with the anguish the plaintiff had undergone. He drew the wedding party, the insult to the bride, the despair of the kidnapped bridegroom; he lashed the whole gang of conspirators concerned in the crime, regretted that they could only make one of all these villains smart, but hinted that Richard and Thomas Hardie were in one boat, and that heavy damages inflicted on Thomas would find the darker culprit out. He rapped out Mr. Cowper's lines on liberty, and they were new to the jury, though probably not to you; he warned the jury that all our liberties depended on them. "In vain," said he, "have we beheaded one tyrant, and banished another, to secure those liberties, if men are to be allowed to send away their own flesh and blood into the worst of all prisons for life and not smart for it, in those lamentably few cases in which the law finds them out and lays hold of them." But it would task my abilities to the utmost, and occupy more time than is left me, to do anything like justice to the fluent, fiery eloquence of Colt, Q. C., when he got a great chance like this. . . . Bursts of applause, that neither crier nor judge could suppress, bore witness to the deep indignation Britons feel when their hard-earned liberties are tampered with by power or fraud, in defiance of law; and, when he sat down, the jury were ready to fly out at him with £5,000 in hand. Then rose the passionless voice of "justice according to law," [in the judge's charge to the jury.] . . . As soon as his lordship had ended, the foreman of the jury said their minds were quite made up long ago. "Si-lence in the court." "We find for the plaintiff, with damages three thousand pounds." The verdict was received with some surprise by the judge, and all the lawyers except Mr. Colt, and by the people with acclamation. (Memoir of Charles Reade, by C. L. and C. Reade, 1887, pp. 357, 304, 314.) . . . Reade's study of criminal life, if not the natural bent of his mind, had led him to believe that there was indisputably an immense mass of injury and cruelty, injustice and oppression, in this wicked world, and that it was the mission of all good and true men to battle with it. Dickens held very much the same idea; but he was practical and unenthusiastic compared with Charles Reade. The latter, in the spirit of one of his knight-errant ancestors, burned with a desire to redress wrong and punish robbery. Hence, when a tale of suffering was poured into his ears, they were only too ready to listen. |