Day v. Day

Le Grand, C. J., delivered the opinion of this court. This action was instituted by the appellee, to recover damages for an assault and for false imprisonment. From the evidence it appeared, that William and John Day were the owners of adjoining fishing shores on the Gunpowder river, near its confluence with Bird river, and that the shore of William “had been immemorially used as a fishery,” and that although John, “at one period,” was in the habit of fishing higher up the stream, and in front of his own shore, the latter fishery ceasing to be advantageous, he shifted the range of his seine within the last three years preceding the institution of this suit, so as to carry it out in front of the shore of William; but, notwithstanding this common range for their seines, both fisheries could be conveniently carried on, it being easy to carry out the seine from one shore while that laid out from the other was drawing in; and that, so, this alternate use of the best fishing waters could be had by each party without interruption or delay. It also appeared, that while the seine of John was being laid out, William was anchored in his boat in the line which the seine of John would take, thus compelling an alteration of its intended direction.

Evidence was also given that while the boat of William was so anchored, John, Gorsuch and others, in another boat, pushed out to ²⁶⁸ him, when a scuffle ensued, resulting in the capture of William and the bringing of him ashore. There was testimony to show that William commenced the struggle, and also that violence was first used by John. When William reached the shore he was committed by the defendant, Gorsuch, who had been present during the difficulty between William and John Day. That commitment was in these words: “State of Maryland and Baltimore county.

To William K. Swain, constable: Take into your custody the body of William Y. Day, and him safely keep, to answer a charge of obstructing the navigation of the waters of Gunpowder river, until he shall be discharged by law. Witness my hand and seal this 19th day of May 1847. Thomas Gorsuch, (Seal.)” Two hours elapsed from the time of the capture of William Day until the delivery of this commitment to the constable. There is evidence in the record to show that Gorsuch urged him to give bail, offering to become it himself, and that the latter refused, as he did also a similar offer made by a friend in Baltimore city, preferring to go to jail, saying that the damages would be increased thereby.

He remained in jail six hours, when he was discharged on his entering into a recognizance to answer at court. There was a great deal of other testimony given, both by the appellants and the appellee; but the above statement is sufficiently full to present the questions which we are called upon to determine. On behalf of the plaintiff, at the trial below, two instructions were asked of the court, which were given; and on behalf of the defendants thirteen, all of which were refused. The ninth prayer of the defendant has been abandoned.

Without recurring to the precise verbal structure of the prayers on behalf of the defendants, it may be said, that they are in direct conflict with the legal propositions contained in those submitted on the part of the plaintiff, and, as a consequence, if the latter were properly granted the others were rightfully refused. ²⁶⁹ The first prayer of the plaintiff merely asks the court to •instruct the jury, that the commitment given in evidence authorised the commitment of William Day for no other offence than the obstruction of the navigation of the Gunpowder river. This is clearly the meaning of the mittimus, the charge being specifically set out in it, and the Court of Appeals, in the case of Whiteford vs. Burckmyer and Adams. 1 Gill, 143 , have recognized the right of a party to segregate any portion of the facts of a case from the whole body and ask the instruction of the court on them. It is for the other party, if he desires it, to ask the opinion of the court on the whole testimony. We do not see how any other construction could have been given to the commitment, and therefore discover no error in this particular.

The second prayer of the plaintiff asserts the broad proposition, that there was no evidence of a legal authority to arrest him. This prayer covers the whole case, and