Northrop v. Brush

1 Kirby 108

• Court: Connecticut Superior Court
• Decided: August 15, 1786
• Status: Published

Opinion

By the whole Court.

The complaint is sufficient. As to the first exception, that the complainant did not show his wounds, and make oath before the justice; such oath and exhibition were proper evidence for the justice to proceed upon, and the presumption is, they were had, unless there was an admission of the facts to render them unnecessary: It was not necessary for the justice to set forth the evidence he proceeded upon; or if it was, his omission to do it should have been pleaded in abatement. The demurrer goes not to the certainty or regularity of the process, but to the sufficiency of the complaint.

As to the second exception, that it was not a secret assault, because committed by two persons: Two persons may commit an assault jointly; and if it is out of the presence or view of others, it is a secret assault; and although the person assaulted may proceed against one of them in a common action of trespass, and take the other for a witness, yet he is not obliged to pursue that method: One of them alone may be insufficient to repair the damages; and it may also be unsafe fox him to rest on the testimony of a person whose malignity had induced him to'join, in a secret attack upon his person; and it is for the public peace and safety, that both the assailants should be complained of, that they may be punished criminaliter. This assault, though, made by two persons, is within the statute against secret assault.

Note.— This judgment was afterwards affirmed in the Supreme Court of Errors.