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Lord Byron's Lord Byron and Mr. Chaworth differed at a club as to the best

means of procuring game. Mr. C. mentioned Sir C. Sedley's manors ; Lord B. asked which they were; Mr. C. named Nuttall and another; Lord B. repeated his question : Mr. C. said, “Surely

you will allow Nuttall to be Sir C. Sedley's : but if “ any thing more to say, you will find Sir C. Sedley in Dean

Street, and me in Berkeley Row.” The conversation then dropped, and they stayed together at least half an hour; and Lord B. during that time conversed with a gentleman who sat next him: Mr. C. settled the bill, but made a mistake in marking the club room, which might arise from agitation; he marked Lord B. as absent, though he was there. Mr. C. then went out, and a Mr. Donston followed him, of whom Mr. C. asked if he had been short with Lord B. in what he said last to him ; to which Mr. Donston answered “No," and was returning into the room, when he met Lord B. coming out. Lord B. said to Mr. C., “ I want to speak to you ;' upon which they both called the waiter, and were shewn into a small room, and the waiter left a candle in the room. Lord B. asked Mr. C. if he meant the conversation upon game to Sir C. Sedley or to him; upon which Mr. C. said, “ if you have

any thing to say we had better shut the door, or we shall be

heard,” and he shut the door. On turning from the door he saw Lord B.'s sword half drawn, and Lord B. said, “ Draw, draw.” Mr. C. drew, and thrust at Lord B.; and after one or two thrusts Mr. C. received a mortal wound of which he died. An indict. ment was preferred for murder : but upon the trial the peers (123)

were unanimous that it was manslaughter only. (b) Ayes's case. In a case where there had been mutual blows, and then, upon

one of the parties being pushed down on the ground, the other stamped upon his stomach and belly with great force and thereby killed him, it was considered to be only manslaughter. The deceased, who was a French prisoner, had stolen a tobacco-box from one of a party of French prisoners who were gambling, and was chastised by some of the party for his conduct, and a clamour was raised against him. As he passed the prisoner, who was sitting at a table and much intoxicated, the prisoner got up, and with great force pushed the deceased backwards upon the ground. The deceased got up again and struck the prisoner two or three blows with his doubled fist in the face, and one blow in the eye; upon which the prisoner pushed the deceased backwards again in the same manner, and gave him, as he lay on his back upon the ground, two or three stamps with great force with his right foot on the stomach and belly; and afterwards, when the deceased arose on his seat and was sitting, gave him a strong kick in the face; the blood came out of the mouth and nose of the deceased, and he fell backwards, and died on the next day. The stamps upon the stomach and belly were the cause of his

The prisoner was convicted of murder, on the ground that the violence which caused the death was not excused by heat of blood : but the learned Judge by whom the prisoner was tried, thinking that the case required further consideration, reserved it


(6) Rex v. Lord Byron, 11 St. Tr. 1177.

for that purpose, and the Judges were of opinion that it was only a case of manslaughter. (c)

A. uses provoking language or behaviour towards B., and B. First blow imstrikes him, upon which a combat ensues, in which A. is killed, material, if This is holden to be manslaughter; for it was a sudden atfray, den, and comand they fought upon equal terms; and in such combats, upon bat equal. sudden quarrels, it matters not who gave the first blow. (g) But it would be otherwise, if the terms were not equal, and if the party killing sought or took undue advantage; as if B., in the foregoing case, had drawn his sword, and made a pass at A., the sword of A. being then undrawn, and thereupon A. had drawn, and a combat had ensued, in which A. had been killed : for this would have been murder, inasmuch as B., by making the pass, his adversary's sword being undrawn, shewed that he sought his blood. (1) And A.'s endeavour to defend himself, which he had a right to do, will not excuse B.: but if B. had first drawn, and forborne till his adversary had drawn too, it had been no more than manslaughter. (i)

And such an indulgence is shewn to the frailty of human nature, that where two persons, who have formerly fought on malice, are afterwards, to all appearance, reconciled, and fight again on a fresh quarrel, it shall not be presumed that they were moved by the old grudge, unless it appear by the whole circumstances of the case. (k)

Though, from the preceding cases, it appears, that not only the if the combat occasion must be sudden, but that the party assaulted must be be equal at the put upon an equal footing in point of defence at the onset, to save of a deadly the party making the first assault and killing from the guilt of weapon aftermurder; yet if, on any sudden quarrel, blows pass without

wards will not

any intention to kill or injure another materially, and in the course of fence more the scuffle, after the parties are heated by the contest, one kill than manthe other with a deadly weapon, it will only amount to man- slaughter. slaughter. (?). But we have seen that the conclusion would be different if there were any previous intention or preparation to use such a weapon in the course of the affray. (a)

John Taylor, a Scotch soldier, and two other Scotchmen, were Taylor's case. drinking together in an alehouse, when some servants to the owner of the house, who were also drinking in another box, abused the Scotch nation, and used several provoking expressions towards Taylor and his company, on which Taylor struck one of the servants with a small rattan cane, not bigger than a man's little finger, and another of the Scotchmen struck the same servant with his fist. The servant who was struck went out of the room into the yard, to fetch his fellow-servants to turn Taylor and his company out of the room; and, in the mean time, an altercation ensued between Taylor and the deceased, who was the owner of the house, but not the occupier, and who had come

make the of

(c) Rex v. Ayes, East. T. 1810. 295. MS. Bayley, J. and Russ. & Ry. 166. (k) i Hawk. P. C. c. 31. s. 30. 1 (g) Fost. 295. 1 Hale 456.

Hale 452, and see ante, 446, 447. (h) 1 Hawk. P.C. c. 31, s. 27. Fost. (1) 1 East. P. C. c. 5. s. 26. p. 243. 295. And see anle, 445.

(a) Ante, 446. (i) i Hawk. P.C. c. 31. s. 28. Fost. VOL, I,

2 K

Snow's case.

into the room after the servant went into the yard. He insisted that Taylor should pay for his liquor, and go out of the house ; and Taylor, after some further altercation, was going away, when the deceased laid hold of him by the collar, and said, “ he should not go away till he had paid for the liquor ;” and then threw him down against a settle. Taylor then paid for the liquor; whereupon the deceased laid hold of him again by the collar, and shoved him out of the room into the passage: and Taylor then said, “ that he did not mind killing an Englishman more than eating a mess of crowdy.” The servant, who had been originally struck with the cane, then came and assisted the deceased, who had hold of Taylor's collar; and together they violently pushed him out of the door of the alehouse : whereupon Taylor instantly turned round, drew his sword, and gave the deceased the mortal wound. This was adjudged manslaughter. (m)

In another case of a similar kind, where the jury had found the
prisoner guilty of murder, the following facts were stated for the
opinion of the Judges. The prisoner, whose name was William
Snow, and who was a shoemaker, lived in the same neighbour-
hood as the deceased, and at no great distance from him.
the afternoon of the day mentioned in the indictment, the pri-
soner, very much intoxicated by liquor, passed accidentally by
the house of the deceased's mother, while the deceased was
thatching an adjacent barn. They entered into conversation :
but on the prisoner's abusing the mother and sister of the de-
ceased, very high words arose on both sides, and they placed
themselves in a posture to fight. The mother of the deceased,
hearing them quarrel, came out of her house, threw water over
the prisoner, hit him in the face with her hand, and prevented
them from boxing. The prisoner went into his own house; and
in a few minutes came out again, and sat himself down upon a
bench before his garden gate, at a small distance from the door of
his house, with a shoemaker's knife in his hand, with which he
was cutting the heel of a shoe. The deceased having finished his
thatching, was returning in his way home, by the prisoner
house: and on passing the prisoner, as he sat on the bench, the
deceased called out to him, " Are not you an aggravating rascal ?”
The prisoner replied, “ What will you be, when you are got from
your master's feet?” On which the deceased seized the prisoner
by the collar; and dragging him off the bench, they both rolled
down into the cartway. While they were struggling and fighting,
the prisoner underneath, and the deceased upon him, the deceased
cried out,

“ You
what do you

do with that knife in your hand?” and made an attempt to secure it; but the prisoner kept striking about with one hand, and held the deceased so hard with the other hand, that the deceased could not disengage himself. He made, however, a vigorous effort, and by that means drew the prisoner from the ground; and during this struggle the prisoner gave a blow, on which the deceased immediately exclaimed, “ The rogue has stabbed me to the heart; I am a dead man; and expired. Upon inspection, it appeared, that he had received

(m) Rex v. Taylor, 5 Burr. 2793. i Hawk. P. C. c. 31. s. $9.

three wounds, one very small on the right breast; another on the left thigh, two inches deep, and half an inch wide; and the mortal wound on the left breast. After great argument and consideration, the Judges determined that the offence was only manslaughter. (n)

It appears that the Judges thought, in this case, that there was not sufficient evidence that the prisoner lay in wait for the deceased, with a malicious design to provoke him, and under that colour, to revenge his former quarrel, by stabbing him; which would have made it murder. On the contrary, he had composed himself to work at his own door, in a summer's evening; and when the deceased passed by, neither provoked him by word or gesture. The deceased began first by ill language, and afterwards by collaring and dragging him from his seat, and rolling him in the road. The knife was used openly before the deceased came by, and not concealed from the bystanders : though the deceased in his passion did not perceive it till they were both down. And though the prisoner was not justifiable in using such a weapon on such an occasion, yet it being already in his hand, and the attack upon him very violent and sudden, the Judges thought that the offence only amounted to manslaughter; and the prisoner was recommended for a pardon. (0)

It is said, that he shall be adjudged guilty of manslaughter, Third person who seeing two persons fighting together on a private quarrel, interfering on whether sudden or malicious, takes part with one of them, and the combat of kills the other. (p) And it seems clear that if a master, maliciously intending to kill another, take his servants with him without acquainting them with his purpose, and meet his adversary, and fight with him, and the servants, seeing their master engaged, take part with him, and kill the other, they would be guilty of manslaughter only, but the master of murder. (9) From this it follows, a fortiori, that if a man-servant or friend, or even a stranger, coming suddenly, and seeing him fighting with another man, side with him, and kill the other man, or seeing his sword broken send him another, wherewith he kills the other man ; such servant, friend, or stranger, will be only guilty of manslaughter. (r) But this supposes that the person interfering does not know that the fighting is upon malice; for though if A. and B. fight upon malice, and C., the friend or servant of A., not being acquainted therewith, come in and take part against B., and kill him, this (though murder in A.) is only manslaughter in C.: yet it would be otherwise, if C. had known that the fighting was upon malice; for then it would be murder in both. If A., having been assaulted, , retreats as far as he can, and then his servant kills the assailant, it will be only homicide se defendendo : but if the servant had killed him before the master had retreated as far as he could, it would have been manslaughter in the servant. And the law is the

(n) Rex v. Snow, I Leach. 151. Hale 438. Plow. Com. 100 b. Rex (0) 1 East. P. C. c.5. S. 26. p. 245. v. Salisbury. who cites Serjeant Foster's MS.

(r) i Hawk. P. C. c. 31. s. 56. 1 (p) i Hawk. P.C. c. 31. s. 35. East. P. C. c. 5. s. 58. p. 298. (9) I Hawk. P.C. c. 31. S. 55. I

same in the case of the master killing the other in defence of the servant. (s)

If two persons be fighting, and another interfere with intent to part them, but do not signify such intent, and he be killed by one of the combatants, this is but manslaughter.(t) And if a third person should take up the cause of one who has been worsted in mutual combat, and should attack the conqueror, and be killed by him, the killing would, it seems, be manslaughter. A. and B. were walking together in Fleet-street, and B. gave some provoking language to A., who, thereupon, gave B. a box on the ear, upon which they closed, and B. was thrown down, and his arm broken. Presently, B.' ran to his brother's house, which was hard by; and C., his brother, taking the alarm, came out with his sword drawn, and made towards A., who retreated ten or twelve yards; and C. pursuing him, A. drew his sword, made a pass at C., and killed him. A. being indicted for murder, the court directed the jury to find it manslaughter; not murder, because it was upon a sudden falling out; not se defendendo, partly because A. made the first breach of the peace by striking B.; and partly because, unless he had fled as far as might be, it could not be said to be in his own defence; and it appeared plainly upon the evidence, that he might have retreated out of danger, and that his stepping back was rather to have an opportunity to draw his sword, and with more advantage to come upon C., than to avoid him: and accordingly, at last, it was found manslaughter. (u)

A party of men were playing at bowls, when two of them fell out and quarrelled ; and a third man who had not any quarrel, in revenge of his friend, struck the other with a bowl, of which blow he died: and this was held manslaughter, because it happened upon a sudden motion in revenge of his friend. (w) But it must be intended that the two men who fell out were actually fighting together at the time; for if words only had passed between them, it would have been murder; nothing but an open affray or striving being such a provocation to one person to meddle with an injury done to another as will lessen the offence to manslaughter, if a man be killed by the person so meddling. (x)

Though Lord Hale and others appear sometimes to intimate a distinction between the interference of servants and friends, and that of a mere stranger, yet the limits between them do not appear to be any where accurately defined. And it has been observed, that the nearer or more remote connexion of the parties with each other seems to be more a matter of observation to the jury as to the probable force of the provocation, and the motive which in

(s) i East. P. C. c. 3. s. 58. p. 292, Kel. 66. and the authorities there cited. I Hale (u) I Hale 482, 483. A case at New484. So Tremain says, that a servant gate, 1671. may'kill a man to save the life of his (W) 12 Rep. 87. master, if he cannot otherwise escape. (c) See the opinion of the Judges 21 H. 7. c. 39. Plowd. Com. 100. 1 in Rex v. Huggett, Kel. 59, and 1 East. MS, Sum.

P. C. c. 5. s. 89. p. 328, 329. (t) i East. P.C. c. 5. s. 59. p. 292.

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