That bare words are not sufficient to constitute an arrest is well illustrated in the case of Genner v. Sparks, 1 Salk. 79. In that case the bailiff having a warrant against Sparks went to him in a yard, and being at some distance told him he had a warrant and said he arrested him. Sparks kept him off with a fork and retreated into his house. It was held that this was no arrest, that bare words will not make an arrest, but if the bailiff had touched him and the party had instantly run away, that would have been an arrest. There was no restraint here and certainly no submission, for Sparks put the officer at defiance. There must be in all cases some degree of restraint, but not necessarily submission even where there is no seizing or touching the person, as where a person is locked up or confined in a room. The difficulty which arises in most cases is the determination as to what constitutes a restraint. In those cases where it has been judically determined that no legal arrest was made, the facts show there was no restraint of the party by the officer; and what we mean by restraint is a deprivation of personal freedom of action in some degree.

Lord Mansfield said in Arrowsmith v. Messurier, 2 N. R. 211: "I suppose an arrest may take place without any actual touch, as if a man be locked up in a room, but here the plaintiff went voluntarity before the magistrate. The constable brought a warrant but did not arrest him. How can a man walking freely to the magistrate prove himself to be arrested."

It was also held that the warrant had been used as a summons, and it does not appear that there was any restraint of personal freedom of physical action exercised by him.

Where an officer sent word to the plaintiff that he had a writ against him, and requested that he would fix a time for attending at the officer's house and give bail, and he did so, it was held that, as there was only one notice of the writ given, there was no arrest. Berry v. Adamson, 6 Barn. & Cress. 534. When an officer, having a warrant for the arrest of a party, said: "I know you; I will take your word; but you must give bail," and went away; this shows there was no restraint imposed by the officer; that is, he did not consider an arrest was made, as the language he used plainly indicates, although he made a return that he had arrested him. It was held that this was not an arrest, but that if the party had gone with him it would have been sufficient. George v. Radford, 3 Car. & Payne, 464.

It is not necessary, to constitute false imprisonment, that the person restrained of his liberty should be touched. If he is ordered to do or not to do a thing, to move or not to move against his own free will; if he is not left to his own option to go or stay when he pleases and force is offered or threatened, and the means of coercion are at hand ready to be used, or there is reasonable ground to apprehend that coercive

measures will be used if he does not yield, his submission to the threatened and reasonably to be apprehended force, is no consent to the arrest or detention or restraint of the freedom of his motion. He is as much imprisoned as if his person were touched or force actually used. Johnson v. Tompkins, 1 Bald. C.

C. 601.

In Russen v. Lucas, 1 Car. & Payne, the officer having a warrant for one Hamer went to a tavern where he was and said, "Mr. Hamer, I want you." Hamer replied, "Wait for me outside the door, and I will come to you." The officer went to wait and Hamer went out of another door and got away. Abbott, C. J., says: "Mere words will not constitute an arrest, and if the officer says, 'I arrest you,' and the party runs away, it is no escape; but, if the party acquiesce in the arrest, and goes with the officer, it will be a good arrest. If Hamer had gone with the officer into the passage, the arrest would have been complete." In a note to this case it was said, "the question in the principal case was, whether directing the officer to go and wait for him was not an acquiescence in the arrest, though it certainly appears to have been, not an acquiescence, but a trial to evade the officer and run away;" there was no submission to the authority of the officer.

In Lansing v. Case & Smith, Ontario Com. Pleas, 4 Legal Obs. 222, E. Fitch Smith, first judge, said: "There is no doubt the rule is well settled, that, if the officer exercises a controlling authority over the person of the party while within his power, and imperatively directs that he must go with him, or that he must do, or must not do, a particular act, and obedience is yielded, or the party, being in the power of the officer, does go or does another act against his will, in order to prevent actual force being used, this will amount to an arrest and imprisonment."

The question of submission to an officer where no force has been used has quite frequently arisen.

In Homer v. Battyn, Buller's Nisi Prius, 62, it is said, "if the bailiff, who has the process against one, says to him when he is on a horse or in a coach, 'you are my prisoner, I have a warrant against you," upon which he submits, turns back, or goes with him, though the bailiff never touched him, yet it is an arrest, because he submitted to the process. See also Pacock v. Moore, Ryan & Moody, 321.

Where the defendant, for purposes of extortion, had placed a writ in the hands of a sheriff's officer, with instructions to arrest the party unless he would give up some property, and the officer, finding his way to the party's sick bed, produced the writ and demanded the property, telling the party unless it was delivered up to him a man would be kept with him, and the party yielded to the pressure and gave up the property, it was held that these facts amounted in judgment of law to an arrest. Grainger v. Hill, 5 Scott, 580.

There was, in this case, the clearest evidence of

restraint exercised by the officer and submission by the party.

So, in Gold v. Bissell, 1 Wend. 210, no force was used. Bissell was informed by the constable of the process he had against him, and Bissell went with him some distance, and then procured a person to engage that he would appear the next day before the justice. It was held that, as the party was in the power of the officer, and, while thus in his power, submitted to his authority, and went with him, this amounted to an arrest. So that, in this case, there was also both restraint and submission. Restraint is the primary element in all arrests, and submission is but the evidence of such restraint. Judge Smith, in Lansing v. Case and ano., cited above, refers to what he terms a class of cases which show that mere words, unaccompanied by any act of submission, will not constitute an arrest.

And, as we might anticipate, in each of these cases there was no restraint to submit to. Words are not material things which, of themselves, possess physical power, but, in some cases, restraint only begins with submission. As if A. (an officer having the proper authority) say to B., "I arrest you," using no force, and B. turns and goes away, there is no restraint imposed on B.; but if B. submits by word or act to A.'s authority, then there is restraint, and, therefore,

an arrest.

Such is the principle decided in Genner v. Sparks and Russen v. Lucas.

It is not necessary that there should be any very formal declaration of arrest. If the officer goes for the purpose of executing his warrant, has the party in his presence and power, and if the party so understands it, and, in consequence thereof, submits, this is an arrest. Pike v. Hanson, 9 N. H. 491.

In Emery v. Chesley, 18 N. H. 201, Woods, Justice, said: "In brief, if the intention to make an arrest, and the power of doing so in form, co-exist and are made known to the party who does not resist, then an arrest is made, and no more is required." It may be supposed, at first view, that this proposition conflicts with the principle that "bare words do not constitute an arrest," upon which so much stress is laid in Genner v. Sparks and Russen v. Lucas, cited above; but in Genner v. Sparks there was no restraint, and the officer was kept at a distance by Sparks by the bold attitude which he assumed, and hence there was no submission. In Russen v. Lucas it does not appear that Hamer knew that when the officer said to him, "I want you," and Hamer replied, "Wait for me outsitle the door, and I will come to you," he intended to arrest him; hence, there was no restraint in what the officer did. At all events, whether he knew it or not, his apparent acquiescence was a trick, for he immediately left the house by another door, and left the officer waiting for him.

But can it be said there is no restraint of a party when he makes no resistance or objection to an offi

cer who has the power and the intention to use force, if necessary, in the execution of process against him, and this is known or communicated to him in his presence? Has he perfect freedom of action? We think not. And, although he may not accompany the officer, and, in fact, be not taken away at all, yet for a short time at least he may be under his control and may be considered fairly under arrest, there being no resistance and no objection, a submission to the officer's authority may be justly inferred, for, if he resist or object, violence might ensue and he is not obliged, as we have seen above, to run that risk.

Again, we think that if an officer has a party within his power and can exert, if necessary, a controlling force over him, and informs him he has a warrant for his arrest, and that he has come for that purpose, or uses words of arrest, and commands him to appear before the magistrate and give bail, and he does so, it is an arrest, even though there is no touching of the person, or no promise to give bail, for assuming that non-resistance alone, unconnected with subsequent facts, is not submission to the officer's authority in his presence (which we do not admit), still, the fact of going afterward before a magistrate and giving bail as commanded, is strong evidence of the fact of submission to the authority of the officer, while in his presence and power and was, therefore, to some extent, under restraint and was really in his custody.

In such cases a promise to give bail at a future day is frequently made, and the party is suffered to go at large; in fact, this is the constant practice among officers, when the offense is light. It may be supposed that this view conflicts with Arrowsmith v. Messurier

and George v. Radford. The former was considered as of doubtful authority, in Pike v. Hanson, except upon the ground of the warrant being used as a summons; in fact, the case seems based upon the ground that the officer did not exercise any control or authority over the party. In the latter, there was a manifest intent on the part of the officer not to put the party under restraint. See Lansing v. Case, above cited. We do not claim that what takes place beyond the presence of the officer is submission, but what is done after the exercise of authority, as we have described, and in pursuance of what was commanded or promised at the time, may be important facts in determining the intention to submit, or as showing that he considered himself in custody of the officer while in his presence.

In Lansing v. Case, it was said, "it may be well doubted whether there be any such thing as an arrest by submission, in the absence of the officer or some one acting under his authority and direction, for power in the officer with the means of coercion must exist and combine with the act of submission by the party arrested.

It is true that when an arrest is made by an actual manual touch or by coercive power or control, that

But a partial restraint of the will of a person is not sufficient to constitute an imprisonment. Thus where a part of a public footway on a bridge was taken and appropriated for seats to view a regatta, and separated for that purpose from the adjoining carriage road by a temporary fence, and the plaintiff insisted upon a right of way across the part so appropriated and climbed over the fence, but was stopped by two policemen who prevented him from proceeding onward, but at the same time told him he might go back if he pleased, which the plaintiff refused to do, and remained where he was for half an hour, it was held that this was no imprisonment. Bird v. Jones, 7 Q. B. 742.

We see here that the officers did not exercise full control over the party, and therefore there was no arrest. It is that entire restraint upon the will which leaves no option or freedom of action which may be produced by direct application of power or force, or by a show of authority or power, accompanied with an apparent intention to enforce such authority by means of physical power, inducing a just apprehension of violence unless an immediate submission to custody takes place, that constitutes an arrest.

CURRENT TOPICS.

The indefeasible right of the free-born American citizen to lounge in public places has been recently upheld, in a decision of the highest court of Illinois, in the case of O'Hara v. King. It seems that Mr. King, finding, one evening, that time was hanging heavy on his hands, concluded to relieve himself of the unwelcome burden by visiting some place where men were accustomed to congregate, and selected for that purpose the office of the clerk of a recorder's court. He had scarcely arrived at his chosen destination, when the clerk, Mr. O'Hara, with unwarrantable curiosity, desired to learn if Mr. King had any business to be attended to. Upon receiving a negative answer, Mr. O'H. suggested that Mr. K.'s absence from the place of their interview was, at that moment, very desirable. Mr. K., however, declined to adopt the suggestion, whereupon Mr. O'H. cast him forth into the outer darkness. For all which Mr. K. brought suit, and the courts, thinking that he had as much right in the clerk's office as the other man, ordered Mr. O'H. to pay $166 damages, besides costs.

To read the communications appearing in English law newspapers one would suppose that the legal profession there were losing all their business

from the encroachments of "unqualified" persons, who, having no professional standing, pay little regard to the customs of the lawyers, and resort to every means to obtain employment. The lawyers of Leeds, however, do not mean that any improper advocacy shall be permitted in their borough. At a recent sitting of what is known as the "licensingsession" of that borough, on an application for a renewal of license, one Whittaker, a temperance advocate, rose to object to such renewal. Says a local paper:

Upon this all the legal gentlemen in the court rose simultaneously to protest against Mr. Whittaker being heard. They were led by Mr. Cornwall, who protested as a legal practitioner, and on behalf of his colleagues, against Mr. Whittaker addressing the court. He argued that he, as a lawyer, paid six guineas a year for the privilege of addressing the court, and maintained that Mr. Whittaker had no locus standi upon which to address the court, except through an advocate. Mr. Williamson followed in a similar strain. Mr. Whittaker, however, refused to be silenced. He demanded, as a burgess, to be heard in accordance with the law laid down in "Burn's Justice of the Peace," and all the powers in the world could not prevent him. The law was laid down, that any burgess who had any cause of complaint could appear and state it to the bench. Mr. Williamson, however, protested against this, and was supported by Mr. Richardson, another solicitor. The magistrates' clerk advised the bench not to hear Mr. Whittaker. At this the latter gentleman became excited, and said a person in a similar capacity had been heard at Bingley. As the bench refused to hear him, he left the court, exclaiming, "I protest against your ruling-it's illegal," and the license was renewed. After a lapse of time, however, Mr. Whittaker re-appeared in the court armed with a volume of "Burn's Justice of the Peace," and wished to explain the authority upon which he had acted. Mr. Richardson protested against the thing being re-opened, and Mr. Williamson said, the authority quoted was obsolete. Mr. Whittaker again protested loudly. The magistrates' clerk ruled that he had no right to speak, except through an advocate. Mr. Whittaker said he had produced his authority for what he had done, and was about to hand the book to the bench, when Mr. Williamson objected to its being put in, and Mr. Whittaker, thus baffled, left the court, exclaiming, "It's too bad; it is too bad, gentlemen," and protesting against its decision.

They have, or at least had, before the present regime in France, a tribunal known as the court of accounts, whose province it was to overlook the financial dealings of public officers. It was made the duty of such officers to submit before this court, annually, a statement of all their money transactions, and, if any one failed to obey this requirement within the proper period, he might, without more ado, be punished for his default. It is to be presumed that the existence of this body had a favorable influence, not only upon the action of those handling government money, but upon the feelings and habits of the French people generally, for it is said that even the managers of the Commune, when the power passed

from their hands, were able to show those whom it concerned a full and detailed account of the receipts and expenditures of their so-called government. However excellent our systems of checks and counter checks may be to secure honesty and accuracy in public accounts, in view of the numerous "irregularities" of disbursing officers daily coming to light in our midst, we must confess our belief that concerning such matters "they do things better in France."

The Chicago Legal News, whose editorial office and publishing house were totally destroyed in the late fire, issues its number of October 14th on time. By it we are informed that the papers and libraries in the law offices in Chicago were burned. The reappearance of the Legal News so promptly, after the great calamity, is a welcome indication of the enterprise and energy which will, in a few years, restore its wonderful city to more than its former magnificence.

It is said that the late fire at Chicago destroyed very many of the public records, as well as documents and writings in lawyers' offices and business places. This is a loss which cannot be estimated in dollars, and consequently does not figure in the two hundred or so millions, wherein the wealth of that unfortunate place has been diminished. Yet it is a disaster which will be known and felt by many long after the ruined city is again built up. To say nothing of the writings relating to transactions of public boards, the most of which might, perhaps, be spared, the wholesale destruction of deeds, mortgages, notes, contracts, vouchers, account books and law papers must embarrass very greatly those interested in their preservation, and will frequently lead to vexatious and unsatisfactory litigation.

Those interested in real estate in Chicago have, probably, to some extent escaped the worst consequences of a wholesale destruction of the records. It seems that certain offices, where real estate transfers were made a specialty, were accustomed to keep an abstract of all deeds, mortgages, etc., appearing in the public records, and we are informed that three complete sets of these abstracts are known to be in existence. How many counties in this State are as well provided against the contingency of a loss of the county records?

Seduction under promise of marriage may be a very heinous offense and deserving severe treatment at the hands of the law, but it has always seemed to us that as there are usually two parties whose consent is necessary to the commission of the act, the legal penalty ought not to be visited wholly upon one. The seductive male must, of course, be a many-times dyed villain, but then, the "chaste" maiden who participates in the unholy contract is, to some degree, a wanderer from the path of rectitude. There should

indeed be thrown around the virtue of woman a barrier so strong that it could not be broken by the violence of lust, but when she so far forgets herself as to yield to a proposal whose making renders the proposer unfit to be a lover, and its acceptance her unfit to be a wife, the law, if interfering at all, should punish both. At it is now it does not, to any extent, prevent seduction, but only gives an opportunity now and then for designing women to levy black mail, or for angry ones to gratify their vindictive feelings.

Americans have heretofore been somewhat unfa

miliar with beggary carried on as a trade. To be sure we have, on various occasions, received a visit from the blind man whose eyes were destroyed by some explosion, the soldier whose arm or leg was lost in the war, or the sorrowful Italian bearing a printed certificate that his little all had been swept away by some great flood on the Po or the Adige.

To the necessities of all these we charitably contributed, asking no questions for conscience sake. It was only when we discovered that some one of them had, in endeavoring to remember his misery no more, expended our eleemosynary donation in procuring fire-water, that our inward faith became shadowed by unbelief. But the suppliants for relief are now multiplying so fast that the most indiscriminate givers begin to hesitate on bestowing alms. Lame men with two sound legs, blind men whose eyesight a very little miracle would restore, deaf and dumb men, whose comprehension of sound is remarkably acute, men and women and children, with various evils and misfortunes are crowding our streets. The laws against vagrancy are sometimes invoked, but they are to a great extent ineffectual. It seems to us that if simulating disease or distress for the sake of obtaining charity was made a misdemeanor, and the law enforced, the vagabonds who infest our cities would disappear, and those worthy of and needing help stand a better chance for relief.

A youthful remainder-man: Casabianca.

A justice, whose sense of humor was fully equal to his knowledge of law, was hearing a case where the counsel on either side were most uncommonly zealous. One would no sooner sit down than the other would jump up to make some remark, which was instantly seized upon and replied to by the other, and the constant interruption at last became ridiculously annoying. His honor could stand it no longer.

"Gentlemen," said he, "I presume there is some merit in this case if we should ever get at it, and I dare say there is something in the defense, too; but allow me to remark, that you two remind me very much of a pair of buckets eternally going up and down a well, with this important difference, gentlemen, that the empty one always comes up."

The N. O. Picayune is responsible for rather a good story in the way of divorce practice:

The attorney, of course, was distinguished." They always are. His office was "gloomy." That makes a little background for the incidents. A lady came in who was very young, very pretty, and, we need not add, very bewitching. Beauty and loveliness in the shape of a client have double attractions, as every lawyer knows.

"Are you Mr. , the lawyer ?" she asked. "Yes, madam; pray be seated. In what way can I serve you?" asked the lawyer, blandly. "I want a divorce, sir." "You want a divorce!" cried the astonished counsel; "why, who in the world could have the heart to separate from so beautiful a lady?" "No one that I know of. It is not the man that wishes to leave me; I want to leave the man.' "Oh, I perceive; but why?" "Well, nothing in particular; but, to tell the truth, I can do better."

This is as bad as "cold feet," or the lady who could only say that the fact was, her lord and master was so "positively uninteresting."

Some years ago, at an assize at Limerick, a boy was brought forward as a witness for the prosecution in a case of murder. He appeared not only young but ignorant, and the judge (Solicitor-General Burke) thought it necessary to examine him as to his qualifications for a witness. This was the style in which it was done:

Do you know, my lad, the nature of an oath?
An oath! no.

Do you mean to say that you do not know what an oath is?

Yes.

DIGEST OF RECENT ENGLISH DECISIONS.

ADMIRALTY LAW.

1. Naval service: towing prize of war: property in prize: foreign enlistment act, 1870 (33 and 34 Vict. c. 90), § 8. The property in a prize of war may pass to the captors without such prize being taken into a port belonging to the country of the captors, or being condemned by a prize court. A prize of war (a merchantman), with a prize crew on board, is not a ship of war. A tug towing such a vessel from neutral waters to the waters of her captors, in the ordinary course of her employment, does not complete the capture, and is not employed in the naval service of a belligerent within the meaning of the foreign enlistment act 1870, § 8, sub. 4. The Gauntlet Adm., 25 L. T. R. 69.

2. Bottomry bond: communication with owner: bill of exchange: collateral security: procedure in colonial court.-A British ship, under a charter from London to Callao, put into Melbourne for repairs. The master, who was also part owner, fearing that the shipwrights would, unless their claims were paid, detain the vessel, and that she might thus be unable to fulfill her charter, raised the necessary funds from the ship's assets at Melbourne upon a bottomry bond of the ship and freight. Held, that the bond was not invalidated by the absence of previous communication between the master and the co-owner, and that the case was distinguishable from The Panama, L. Rep. 3 P. C. 199; 32 L. T. R. (N. S.) 73, and from all those in which the general duty of previous communication is laid down. Held, also, although a bottomry transaction cannot be based upon personal security, bills of exchange may be given in addition to the bond. Held, also, that the mortgagee of a ship cannot, for the purposes of such previous communication as is necessary between the party hypothecating the ship and the owner, be deemed an owner; though it may be otherwise if the mortgagee be also the ship's agent and agent for the owner. The Staffordshire, Adm., 25 L. T. R. 137.

AGENCY.

Principal and agent: written contract signed by agent: agent debited by seller: liability of disclosed principal.- Defendant had commissioned C. to buy 100 bales of cotton, but particularly directed that his name should not be disclosed. C. bought the cotton, for delivery, on a future day, of plaintiffs, who were cotton brokers, and who, expressing themselves unwilling to trust C., insisted on having the name of C.'s principal. C. having told plaintiffs that the cotton was for the defendant, but that the defendant did not wish his name to transpire, plaintiffs sold the cotton

sonally, and received from him a corresponding bought note, signed by him personally, and not as agent, and plaintiffs thereupon debited C. in their books. C. delivered to defendant a corresponding note: "Bought on your account, of Messrs. C. and D., 100 bales, etc." Defendant accepted and retained this note without demur. Before the time for the delivery of the cotton, cotton had fallen in price, and defendant then settled differences with C. When the time for delivery of the cotton arrived, cotton had still further fallen in price; plaintiffs thereupon called on C. to accept the cotton, or pay the difference in price, threatening proceedings in case he failed to do so. On C.'s failure to do so, plaintiffs called on defendant to accept the cotton, or pay the difference in price, and, on his refusing