The right of the bail over his principal, whether exercised personally or by delegation, is too well established to require any observation. I will barely remark, that the law supposes the principal to be always in the custody of his bail; and if he is not in fact, the bail may take him, when and where he pleases. If the principal has withdrawn himself within his own house, and fastened his doors, the bail may break them open to arrest him, after having signified the cause of his coming, and requested the principal to open them. Although this is the general rule, and established on principles of wise policy, there are cases not within the reason of it, and which, manifestly, form a just and reasonable exception. The one displayed on the record, is clearly of this description. The principal had resolved, if the defence made was true, in defiance of the obligations both of justice and honour, to rescue himself from the custody he had voluntarily assumed, and, with full knowledge of the purpose for which he was sought after, to resist even to the shedding of blood. Under these circumstances, he was not within the reason and spirit of the rule requiring notice; nor was the bail obliged by law to make a demand, that would probably issue in the destruction of his life. I consider the defendant as an assistant to the bail, and justifiable on the same reason.
The jury should have been informed, that, if the personal safety of the bail, or his substitute, was in hazard, the proceeding to apprehend the plaintiff was lawful. Imminent danger to human life, resulting from the threats and intended violence of the principal towards his bail, constitutes a case of high necessity; and it would be a palpable perversion of a sound rule to extend the benefit of it to a man, who had full knowledge of the information he insists should have been communicated; and who waited only for a demand, to wreak on his bail the most brutal and unhallowed vengeance.
If the forms of law had been violated, I could not subscribe to the direction given to the jury, in relation to damages. The plaintiff ought to have been limited to the actual damage sustained. His imprisonment was lawful; for it was the condition, which, in contemplation of law, he had been subjected to, from the moment the bail was given; and of his damage the actual restraint of his person formed no part.
Chapman, Brainard and Bristol, Js. were of the same opinion. *171Peters, J.In trespass for breaking and entering the plaintiff’s house, assaulting and imprisoning his person, the defendant justified under the authority; of a deputy-sheriff, who had a mittimus, issued pursuant to the late statute, (a) to arrest and imprison the plaintiff, at the instance of his bail, and directed the defendant to enter the house, and arrest the plaintiff, without first making known his authority, and demanding entrance.
Admitting that the law supposes the principal to be in the custody of his bail; and that the bail may take him, when he pleases, and detain him, or surrender him; and that, in the language of the books, he has him always on a string, which he may pull at pleasure, and construing this language literally, may break into his bed-chamber, at mid-night, and drag him from his wife and children, (b) without notice, or necessity; the defendant is not justifiable. Though the plaintiff may have been bound to submit to his bail, because he knew him, and had voluntarily committed himself to his custody; still he was not bound to submit to the agent of his bail, a mere stranger, nor even to the sheriff, and might lawfully resist him and his posse comitatus, until they made known their authority. But the defendant was not the bail, nor the agent of the bail: he was the bailiff of the sheriff, who was the agent of the law, and not of the bail. Was the plaintiff entitled to less civility, or had he fewer privileges, than a felon, under like circumstances? “In all cases where the king is party, the sheriff may break the party’s house to arrest him; but before he breaks it, he ought to signify the cause of his coming, and make request to open the doors and this he must do, “if the house be kept and defended with force; for perhaps he did not know of the process, of which if he had notice, it is to be presumed he would obey it.” Semayne’s case, 5 Co. Rep. 91.
But the plaintiff said, “He had a gun, and would defend himself, and his castle.” He did not, however, say this to his bail, nor to the deputy-sheriff, after he received the mittimus. But if he had so threatened, the application of force was unnecessary: for the defendant had previously secured the gun; and “the law doth never allow of such extremities, but in cases of necessity; and, therefore, no one can justify the breaking open another’s doors to make an arrest, unles he first sig*172nify to those in the house the cause of his coming, and request them to give him admittance.” 2 Hawk. P. C. c. 14. s. 1.
I would not advise a new trial.
New trial to be granted.
Stat. tit. 5 s. 8. p. 63, 4.
See Parker v. Bidwell, 3 Conn. Rep. 84. Anon. 6 Mod. 231, Nieolls v. Ingersoll, 7 Johns. Rep. 145.