1st. On a breach and entry of his house on the 23d of October, 1775, and making a dis-ration. turbance there for twelve hours, breaking open his cabinets and escritoires, and taking away his goods and papers, and for an assault on his person, and imprisoning him ten days, without any lawful or reasonable cause. 2nd. On a general count for an assault and false imprison ment; and laid his damages at 30,000l. The defendant pleaded, 1st. Not Guilty, on which issue was joined.

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'demesne.' Replication that the defendant entered the plaintiff's house and misbehaved, whereupon he gently put him out. Held that the replication was good without a traverse, absque hoc, for it ought to be a special replication, because this new matter could not be given in evidence on the general replication, De in- | 'juriâ suâ propriâ, &c.' Whatever confesses and avoids, as the tender of bail does in this case, must be suggested on the record, that the adverse party may be able to meet it in evidence. It is collateral matter, and out of the issue of the general traverse, which only goes to the facts of the plea. Therefore all subsequent misbehaviours, as abuses of distresses, &c. are in the regular course of pleading, constantly replied, and cannot be given in evidence. Besides,

Nothing ought to be admitted in evidence, but what is material to the issue joined, either to prove or disprove it. Nothing is in issue upen a special plea, but what is directly traversed: and the general replication, “De injuriâ suà propriâ absque tali causâ,' traverses all the matters, and nothing but the matters contained in the plea. The plaintiff declares on a fact which at first view is a trespass. The defendant in his plea acknowledges that fact, but states such new circumstances as (if_true) amount to a justification. If the plaintiff can suggest additional new matter, which shews that the defendant's assertions (though true) will not justify the trespass committed, he ought to reply that new matter in a special replication, that the defendant may demur or take issue upon it. But in the present case he has chosen to reply generally, the imprisonment I complain of is still an injury, because all that you have said in justification is absolutely untrue. The words 'De injuriâ suâ propriâ,' of his own wrong, are merely introductory; As to the second question, Tender of bail the traverse is contained in the words 'absque must be like the tender of money. The bailtali causâ,' without the cause alleged by the must be produced in order to see that they are defendant. Whatever therefore goes to discurrent. A promise, or offer of bail not pre- prove that cause is admissible evidence, but sent is not sufficient, nor is the subsequent nothing else. commitment a refusal, if no bail were ready. The tender inust be absolute, not conditional; Salmon and Percival, Cro. Car. 196. Sir W. Jones, 226. Smith and Hall, 2 Mod. 31. On an action of false imprisonment the defendant justified under a Latitat, the plaintiff replied (which shews the true course of pleading) a tender and refusal of bail. Held, that as the arrest was legal, case and not trespass lay for this refusal.

2. This evidence does not support the action, which is for a positive fact. This is only proof of a negative, a mere non-feasance. See the Six Carpenters' case. Resolution the second. Ld. Raym. 1399.

De Grey, chief justice. As the case is so clear on the first question, there is no necessity to give any opinion on the second.

Nares, justice, of the same opinion. It was held by all the judges on a reference from this Court in the case of Selman and Courtney, about the 13 or 14 Geo. 2, that where a defence confesses and avoids, it cannot be given in evidence on the general issue. See also 3 Hen. 7, pl. 8. Cro. Jac. 147.

Judgment for the defendant.

See the Case of Wilkes, on a Habeas Corpus, King's Messengers, for False Imprisonment, vol. 19, p. 982. Also that of Leach against the vol. 19, p. 1002, and the Case of Seizure of Papers, p. 1030.

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It is a certain rule that no new matter, foreign to the issue joined, is admissible as evidence. The present replication De injuriâ 'suâ propriâ,' &c. is a general traverse of the In the Letter from Candor to the Public Adwhole of the plea. Whatever therefore goes vertiser, pp. 15, 16, it is asserted, that “ Mr. to disprove the facts of the plea is proper evi- Pratt never was consulted at all, and but once dence. What disproves none of them, is im- even spoken to, about any secretary's warrant; proper. This refusal of bail, if true, disproves and then as Mr. Pitt avowed in a certain august nothing that is advanced in the plea, and there-assembly, his friend the Attorney told him fore ought not to have been admitted. the warrant would be illegal, and if he issued it he must take the consequence, nevertheless preferring the general safety in time of war and public danger to every personal consideration, he run the risk (as he would that of his bead bad that been the forfeit upon the like motive) and did an extraordinary act upon a suspicious foreigner just come from France.""

Gould, justice, of the same opinion. There may be a partial traverse absque tali causâ,' and a general one. This is a general traverse, under which no new matter can be given in evidence. The case in Carthew, 280, is a strong authority for the defendant.

Blackstone, justice, of the same opinion.

561. The Trial of JAMES HILL otherwise JAMES HINDE, otherwise JAMES ACTZEN or AITKEN,* (known also by the name of John the Painter) for feloniously, wilfully, and maliciously setting Fire to the Rope House in his Majesty's Dock-Yard, at Portsmouth: had at the Assizes holden at Winchester, Before the Hon. Sir William Henry Ashhurst, knt. one of the Justices of his Majesty's Court of King's Bench, and the Hon. Sir Beaumont Hotham, knt. one of the Barons of his Majesty's Court of Exchequer, March 6: 17 GEORGE III. A. D. 1777. [Taken in Short-Hand by Joseph Gurney; and published by Permission of the Judges.]

THE GRAND JURY.

Viscount Palmerston
Rt. hon. Hans Stanley
Sir R. Worsley, bart.
Sir H. P.St. John,knt.
Sir W. Benett, kot.
Sir C. Ogle, kat.
H. Penton, esq.
J. Iremonger, esq.
T. S. Jolliffe, esq.
J. Worsley, esq.
C. Spooner, esq.
T. Ridge, esq.

Southampton,

P. Taylor, esq.
C. Saxton, esq.
John Pollen, esq.
T. Gatehouse, esq.
T. Sidney, esq.
J. Amyatt, esq.
Tho. South, esq.
H. Harmood, esq.
W. Harris, esq.
Richard Bargus, esq.
Philip Dehany, esq.

INDICTMENT.

THE jurors for our lord the king, upon their oath, present that James Hill, otherwise James Hinde, otherwise James Actzen, late of Portsea, in the county of Southampton, labourer, on the 7th day of December, in the 17th year of the reign of our sovereign lord George the 3d, now king of Great Britain, &c. with force and arms at Portsea aforesaid, in the county aforesaid, twenty tons weight of hemp of the value of 100.; ten cable-ropes, each thereof being in length one hundred fathoms, and in circumference three inches, and of the value of 80l.; and six tous weight of cordage, of the value of 2001.; the said hemp, cable-ropes, and cordage, then and there, being naval stores of our said lord the king, and then placed and deposited in a certain building in the dock-yard of our said lord the king there situate, called the Rope-house, feloniously, wilfully, and maliciously, did set on fire and burn, and cause and procure to be set on fire and burnt, against the form of the statute in such case lately made and provided, and against the peace of our said lord the king, his crown and dignity. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said

* Some account of this man is given in the Annual Register for 1777, Hist. of Europe, p. 28.

James Hill, otherwise James Hinde, otherwise James Actzen, on the said 7th day of December, in the year aforesaid, with force and arms at Portsea aforesaid, in the county aforesaid, a certain building erected in the dock-yard of our said lord the king there situate, called the Rope-house, feloniously, wilfully and maliciously, did set on fire, and cause and procure to be set on fire, against the form of the statute in such case lately made and provided, and against the peace of our said lord the king, his crown and dignity.

And the jurors aforesaid, upon their oath aforesaid, do further present, that the said James Hill, otherwise James Hinde, otherwise James Actzen, on the said 7th day of Decemat Portsea aforesaid, in the county aforesaid, a ber, in the year aforesaid, with force and arms certain building of our said lord the king there situate, in which great quantities of naval stores, that is to say, twenty tons weight of hemp, ten cable ropes, and six tons weight of cordage, of our said lord the king, were then placed and deposited, feloniously, wilfully, and maliciously, did set on fire, and cause and procure to be set on fire, against the form of the statute in such case lately made and provided, and against the peace of our said lord the king, his crown and dignity.

Indictment, to which he pleaded Not Guilty,
The Prisoner was arraigned upon the above
when the following persons were sworn:
THE PETIT JURY.

Henry Lucas, of the Soke.
Richard Long of the same.
Robert Mondy, of Thruxton.
John Cole, of Upelatford.
William Cole, of Longstock.
Richard Vokes, of Kingsworthy,
Rechab Thorne, of Itchin Stoke.
Samuel Maunder, of Hyde-street.
George Newsham, of Wickham,
John Kent, of Farebam.
John Berry, of the same.
Charles Cobb, of Gosport.

Counsel for the Crown.-Mr. Serj. Davy, | as soon as this misfortune bad happened, all Mr. Mansfield, Mr. Missing, Mr. Buller, Mr. Fielding.

Mr. Fielding. May it please your lordship, and you gentlemen of the jury, this is an indictment against the prisoner at the bar for a crime of so atrocious and uncommon a nature, as to render it impossible to affix any epithet to the crime descriptive of its enormity. This is, gentlemen, the first instance of its existence, and I hope in God it will be the last. The indictment, you have perceived already, turns upon three counts: the prisoner at the bar is first charged for setting fire to a quantity of hemp and ropes particularly specified; the second count is for setting fire to a certain building erected in the dock yard, called the Ropehouse; the third count is for firing his majes ty's naval stores. Gentlemen, the matter will be more fully opened to you by the learned and experienced gentleman who leads this business, and I doubt not but your verdict will be satisfactory to your country.

Mr. Serj. Davy. May it please your lordship, and you gentlemen of the jury, I am of counsel in this case for the king in the prosecution of the prisoner at the bar, who is described by the name of James Hill, otherwise James Hlinde, otherwise James Actzen, for setting fire to the Rope-house at Portsmouth Dock, belonging to the crown, the place where cordage is made to supply the king's navy, and which crime is constituted a capital felony by an act of parliament made in the 12th year of his present majesty, till when it had not entered the imagination of man that such a crime could be committed at all. It will be unnecessary for me to expatiate upon the nature of the offence; that has nothing to do with the prisoner at the bar, any more than as he was an agent in the commission of it; and it will be necessary for me, therefore, to mention to you only those particulars that we have to lay before you in evidence, by which to affix the crime upon the prisoner, and to submit to you upon the consideration of those facts, whether he is or is not guilty of the charge in the indictment.

Upon the 7th of December in the afternoon (I believe about 4 o'clock) a dreadful fire broke out in the Rope-house at Portsmouth Dock, which I think was entirely consumed; it is an edifice of very great extent and magnitude indeed, (perhaps you may have seen it) and is consequently of great value, and it is exceeding lucky for the public that it did not happen at that time to contain so much cordage as at some times it had; that was not the only thing intended to be consumed that day, but fortunately that alone was consumed. Gentlemen, it is necessary to mention to you that the fire broke out at the easternmost part of the building;

* Stat. 12 G. 3. c. 24. See East's Pleas of the Crown, chap. 22, s. 38. For the law of Arson, see the preceding chapter of that work.

| imaginable enquiry was made, in order to find out the cause of it, but all to no purpose, no fire or candle had been there, none ever is

used there, particularly in the eastward part of the building; nobody could tell by what means it would have passed as an accident, the causes it happened, and all enquiry was fruitless, and of it unknown to this day, had it not been for a very extraordinary discovery, which was made upon the 15th of January, five or six weeks afterwards, which led to an enquiry, and which enquiry produced the most ample and clear discovery that ever was laid before a court of justice.

house, which is another very large building, Upon the 15th of January, in the Hempand which contains hemp of an infinite valne belonging to the crown, there was discovered by Mr. Russell, and two others, in turning over some of the hemp for some purpose, something which shone a little and appeared bright; it appeared upon taking it up, that it was a sort of canister, which one at first sight imagined to be a tea canister; it was a machine which nobody could tell what to make of; upon looking a little further on the same spol, there was found a sort of box, containing combustibles of various kinds; there was oil of tur pentine, there was hemp, there was tar; the moment that was seen, it struck them; and there could be no doubt in any mind upon that subject, that whoever placed that machine there, had an intention to set the place on fire; it was alarming, the men were struck with astonishment and wonder, looking at each other and at the instrument in their hands, and upon recollection determined to do the only thing fit to be done, to go to the Commissioner of the Dock and inform him of it, that the proper evidence of this matter might be laid before government, and fit enquiry made into it; then it was, for the first time, clear and apparent to every one, that the fire, which had happened on the 7th of December in the Rope-house, had not been by accident, but design. Now, gentlemen, let us endeavour to recollect every circumstance of that unhappy day---while it was thought to have been accident, nobody gave themselves the trouble to enquire or to recollect who they had seen, who was there, or who was not there; but from the instant that they resolved that this must have been the work of some devil, or that this was some human contrivance, that this was an act done on purpose, then it was fit to advert back to the subject, and to turn in their minds all the cir cumstances of that day; among others it oc curred (for it was the talk of all the thousands in the Dock in five minutes, I suppose) that a man had been seen upon the day of the fire, lurking very much about the Hemp-house and about the Rope-house; then it occurred, that a man had been locked into the Rope-house, and with some difficulty had got out again; then it occurred, that the person upon whom suspicion then fell, from several vague indefinite cir

cumstances, was one whose sirname was not known, but who was called John, and who was by business a painter, who had worked for a Mr. Goulding, a painter at Titchfield, at a gentleman's house in the neighbourhood, and that was the origin of the name given to him of John the Painter.

John the Painter then being the man upon whom suspicious strongly fell from several circumstances, none of which concluded directly and positively against him, but all of which led to extreme strong suspicions; and the circumstances that caused these suspicions, were put together in the form of an information, and laid before a magistrate, in order, if possible, to have this John the Painter apprehended and further enquiry to be made. Upon this, there was an advertisement published in the papers, with a reward of 50t. for the apprehending John the Painter, describing him as well as they were able, and his person and his dress were very sufficiently described by the people who had seen him before.

very likely that he might have known him, but he happened not to know him at all ; that person being dismissed from the room, where this examination, though I can hardly call it an examination, where this little matter had passed, and retiring to the other room where the prisoner was, the prisoner having been informed that this person, whose name is Baldwin, was an American and a painter, naturally enough beckoned to him and desired him to sit down by him. Baldwin sitting down by him, a conversation began between these people, touching their trade, and touching America and Philadelphia, that part of America in which they had lived, the distance of the place, a few names, and some general conversation; the place and occasion would not admit of a long conversation. The prisoner at the bar desired Baldwin to do him the favour of a visit at New Prison, Clerkenwell, where he was going, desired he would be so good as to call upon him, be should be glad to see him. Now, gentlemen, here let me tell you, for fear I should forget it, that all this was A very worthy honourable gentleman, whom the mere fruit and offspring of accident; this I have in my eye, and who is a very great Baldwin was not set upon him, was not desired friend to the public, and in the strict and true to obtain any confession from him, nor desired sense of the word, a patriot, having seen this to make any acquaintance with him; but an advertisement, very actively stirred himself in intimacy passed between these people for sevethe business, and was very much the cause ral days afterwards, before any body concerned of the apprehending of this John the Painter. for the prosecution knew any thing of it. It is John the Painter was accordingly taken up, 1 fit the world should know that. In consebelieve, in this county, at Odiham; and you quence of this short conversation that passed will be pleased to mark, that there was then at sir John Fielding's, Baldwin went as defound upon him, a loaded pistol, a pistol tinder- sired by the prisoner, to visit him at Clerkenbox, some matches, and a bottle of oil of tur- well New Prison; when he was there, a conpentine; he was examined, but he had too versation passed between them of no very great much sense, he was too much guarded to make importance, it was only general, concerning any considerable discovery upon the examina- persons and places, some of which both of tion that he underwent before a magistrate, them knew, some of which only one of them and had it not been for a circumstance, which knew. The next day, Baldwin paid him anoI am now going to mention to you, it would be ther visit, for the prisoner liked his company, an extremely difficult matter to affix the crime and it was a very lucky circumstance; it was upon this person at the bar, however satisfied indeed the providence of God that this man one might have been in one's own private judg-placed that fortunate (for fortunate I may call ment of his guilt.

It happened that there was one of the same business, a painter, who had been as the prisoner likewise had been, a painter in America; for this gentleman (the prisoner) has worked in America; he is an American, not by birth, for by birth he is a Scotchman, but he is an American, there he was settled, from thence he had lately come, and thither be meant to retura. One of that business, and who likewise had worked as a painter in America, it was imagined might possibly know this John the Painter, and therefore he was sent for to sir John Fielding's in Bow-street, upon the 7th of February, in order to be shewn the prisoner, and to inform the magistrate whether he did or did not know him; that man being asked the question answered, that he did not know him, and to the best of his recollection had never seen him in all his life time; there was an end therefore, of that business; as that man had worked in the same place, for I think the prisoner bad worked at Philadelphia too, it was

it for the public) confidence in this Baldwin, by which he afterwards made the ample discoveries that you will hear by and by. The prisoner told him after various visits, for he visited the prisoner at his own request almost every day, for, I believe, near three weeks from that time, and it was not for many days, not until a full diseovery was made, that Baldwin communicated the matter to any body, and when he did, he communicated it to an honourable person not at all connected with government; he told him, among other things (I will descend to the particulars by and by, for a very striking reason which you will go with me in observing when I descend to them, he told him) that he had lately come from France, that he bad been employed there by a gentleman, whom he was surprised that Baldwin did not know, as he was a man of so much note, and whose name had been so frequently in the news-papers, which was a Mr. Silas Deane ; that Mr. Silas Deane was a very honourable gentleman, employed by the congress in Ame