The case was tried as though a formal plea of justification had been filed. Defendant's counsel in his argument to the jury said: "I say that justification extends not only to what was taken that day but whatever might have been taken before." And the Court informed the jury that the defendant "says that it was justified in restraining her."
It is the general rule that in the case of detention without a warrant, the defendant, in order to avoid liability, has the burden of justifying his act by showing that he had probable cause for imposing the particular restraint. Jackson v. Knowlton, 173 Mass. 94. See, also, Noyes v. Edgerly,71 N.H. 500, 502; Clark v. Tilton, 74 N.H. 330, 332. *Page 376
Under the principle of Burke v. Railroad, 82 N.H. 350, 361, the jury should have been instructed in accordance with this rule without reference to the presumption stated in the request.
New trial.