.

had, in fact, seen this done a short time previously. The prisoner said nothing on hearing these statements. Prosecutor left the cottage, and the prisoner and his wife in it. The prisoner then closed the shutters, and locked the door. The prosecutor heard the prisoner using threatening language to his wife, and saw her run out of the cottage. The prisoner said he would lock her out all night, and thereupon she returned into the cottage. The prosecutor heard the prisoner again use very violent language, and opened the shutters, and saw the prisoner take up a shovel and hold it in a threatening attitude over his wife's head, and heard him say, "If it was not for the bloody policeman outside I would split your head open, for 'tis you that sent for the policeman." The prisoner was near enough to have struck his wife when he raised the shovel. Shortly afterwards he desired her to go to bed, and she replied, I can't go up stairs in this state; I don't know one hour from another when I might be murdered." Prisoner said with an oath, "I'll leave you altogether," and went out. This was about twenty minutes after he had raised the shovel. He went on the highway towards his father's house, and when he had walked about seventy yards from his cottage the prosecutor took him into custody. He had no warrant. Cook had been with the prosecutor all the time these things occurred, and insisted on his taking the prisoner into custody, because he thought it would not be safe to let him go back to his wife that night. The prisoner, on being taken into custody, assaulted the prosecutor. And, upon a case reserved, it was held that the prosecutor was in the execution of his duty *when he was [*808 assaulted. It is not necessary that a policeman should arrest a man at the very moment he sees an assault committed; it is quite sufficient if he arrests recently after the right to do so arises. It cannot be said, that because the prisoner was going away from the house, the constable was bound to come to the conclusion that the danger was over. As a conservator of the peace, he had authority to take the prisoner into custody, he having so recently witnessed the commission of an assault. Here there was a continuing danger and a continuing pursuit, and it was the duty of the policeman to exercise his authority in this case, in order to prevent a further breach of the peace, and also that the prisoner might be dealt with according to law in respect of the assault he had so recently committed.(h)

There is no distinction as to the power to apprehend between one kind of misdemeanor and another, as between a breach of the peace and fraud, but the rule is general, that in all cases of misdemeanor there is no power to apprehend after the misdemeanor has been committed. To trespass for false imprisonment, the defendant pleaded that an evil-disposed person, to him unknown, had obtained goods from him by false pretences; that the plaintiff afterwards passed by the defendant's shop, and was pointed out to him by his servant as the person who had so obtained the goods, whereupon the defendant, vehemently suspecting that the plaintiff was the person who had committed the offence, gave charge of him to a police officer to be taken before a magistrate; and upon this plea the defendant had a verdict. It was contended, in showing cause against a rule for judgment non obstante veredicto, that offences partaking of the nature of a felony, as a fraud, which borders on a theft, might come under a different rule from misdemeanors, which merely constituted a breach of the peace. [Lord Tenterden, C. J.: The distinction between felony and misdemeanor is well known and recognized, but is there any authority for distinguishing between one kind of misdemeanor and another?"] It was admitted that there was no direct authority, but 2 Hawk. P. C. c. 12, s. 20, and 2 Hale 88, 89, were relied upon. Lord Tenterden, C. J.: "The instances in Hawkins are where the party is caught in the fact, and the observation there added assumes that the party was guilty. Here the case is only of suspicion. The instances in Hale, of arrest on suspicion after the fact is over, relate to felony. In cases of misdemeanor, it is much better that the parties should apply to a justice of peace for a warrant than take the law into their own hands, which they are too apt to do. The rule must be made absolute."(i)

66

Nor does the London Police Act, 2 & 3 Vict. c. 94, s. 8, empower a constable of

(h) Reg. v. Light, D. & B. C. C. 332.

(i) Fox v. Gaunt, 3 B. & Ad. 798 (23 E. C. L. R.).

the city of London to apprehend a person without a warrant, on suspicion that he had previously committed a misdemeanor.(k)

*809] *If one menace another to kill him, and complaint be made thereof to the constable forthwith, such constable may, in order to avoid the present danger, arrest the party, and detain him till he can conveniently bring him to a justice of the peace.(1)

It has been said, that if peace officers meet with night-walkers or persons unduly armed. who will not yield themselves, but resist or fly before they are apprehended, and who are upon necessity slain, because they cannot otherwise be overtaken, it is no felony in the officers or their assistants, though the parties killed were innocent.(m) But it is doubted whether, at this day, so great a degree of severity would be either justifiable or necessary (especially in the case of bare flight), unless there were a reasonable suspicion of felony.(n) And it has been considered that the taking up of a person in the night as a night-walker and disorderly person, though by a lawful officer, would be illegal, if the person so arrested were innocent, and there were no reasonable grounds of suspicion to mislead the officer.(0) Where a private Act authorized watchmen to apprehend night-walkers, malefactors, and suspicious persons, and a watchman apprehended a gentleman returning from a party for uttering some words in a street at night, it was held that the apprehension was illegal, for by night-walkers is meant such persons as are in the habit of being out at night for some wicked purpose.(p) So the words "suspected person or reputed thief" in the 3 Geo. 4, c. 55, s. 21 (the former London Police Act), were directed against persons of general suspicious character, and frequenting places where they might *810] be reasonably suspected of resorting for felonious purposes. (7)

(k) Bowditch v. Balchin, 5 Exch. R. 378. The misdemeanor was perjury. The section empowers "any person belonging to the said police force to take into custody, without warrant, all loose, idle, and disorderly persons, whom he shall find disturbing the public peace, or whom he shall have good cause to suspect of having committed or intending to commit any felony, misdemeanor, or breach of the peace," &c.; and the Court held that the words "loose, idle, and disorderly persons," overrode the whole clause.

(1) 2 Hale 88. This power seems to be grounded on the duty of the officer to prevent a probable felony, and must be governed by the same rules which apply to that case; though Dalton (ch. 116, s. 3) extends it even to the prevention of a battery. Vide 1 East P. C. c. 5, s. 72, p. 306.

(m) 2 Hale 89, 97. The statute 2 Edw. 3, c. 3, and 5 Edw. 3, c. 14, relate to the apprehension of night-walkers, and persons unduly armed. But the latter Act is repealed by the 19 & 20 Vict. c. 64. And see Lawrence v. Hedger, 3 Taunt. 14.

(n) 1 East P. C. c. 5, s. 70, p. 303. Both the statutes mentioned in the last note were levelled against particular descriptions of offenders who roved about the country in bodies, in a daring manner. See Reg. v. Dadson, 2 Den. C. C. 35, post.

(0) Tooley's case, 2 Lord Raym 1296. There is a MS. note of this case given by the editor of Lord Hale (2 Hale 89), which states Lord Holt to have said that of late constables had made a practice of taking up people only for walking the streets: but that he knew not whence they had such authority. But see Lawrence v. Hedger, 3 Taunt. 14, where it was holden that watchmen and beadles have authority, at common law, to arrest and detain in prison, for examination, persons walking in the streets at night, whom there is reasonable ground to suspect of felony, although there is no proof of felony having been committed. And it has been said by Hawkins and others, that every private person may, by the common law, arrest any suspicious night-walker, and detain him till he give a good account of himself: 2 Hawk. P. C. c. 13, s. 6, c. 12, s. 20; and it has been held that a person may be indicted for being a common night-walker, as for a misdemeanor: 2 Hawk. P. C. c. 12, s. 20; Latch. 473; Poph. 208. By the Vagrant Act, 5 Geo. 4, c. 83, s. 6, it is made lawful for any person whatsoever to apprehend any person who shall be found offending against that Act, and forthwith to take and convey him or her before some justice of the peace, to be dealt with in such manner as is therein before directed, or to deliver him or her to any constable or other peace officer of the place where he or she shall have been apprehended, to be so taken and conveyed as aforesaid: and it further enacts, that in case any constable or other peace officer shall refuse, or wilfully neglect, to take such offender into custody, and to take and convey him or her before some justice of the peace, or shall not use his best endeavors to apprehend and to convey before some justice of the peace, any person that he shall find offending against the Act, it shall be deemed a neglect of duty in such constable or other peace officer, and he shall, on conviction, be punished in such a manner as is thereinafter directed.

(p) Watson v. Carr, 1 Lewin 6, Bayley, J.

(2) Cowles v. Dunbar, Moo. & M. 37, Lord Tenterden, C. J.

Questions not unfrequently arise as to the authority of constables and other officers to interfere with persons in inns or beer-houses. (r) It is no part of a policeman's duty to turn a person out of an inn, although he may be conducting himself improperly there, unless his conduct tends to a breach of the peace. The plaintiff was using abusive language in an inn to one of the persons there, on which the owner of the inn sent for a policeman, who by his direction, took the plaintiff to the station-house. Patteson, J.: "The landlord of an inn or public-house, or the occupier of a private house, whenever a person conducts himself as the plaintiff did, is justified in telling him to leave the house, and, if he will not do so, he is justified in putting him out by force, and may call in his servants to assist in so doing. He might also authorize a policeman to do it, but it would be no part of a polic man's duty as such, unless the party had committed some offence punishable by law; but although it would be no part of the policeman's duty to do this, it might be better in many cases that a policeman should assist the owner of the house in a matter of this kind, as he would probably get the person out of the house with less disturbance, than the owner himself could do."(s) Neither is it the duty of a policeman to prevent a peson from going into a room in a public-house, unless a breach of the peace was likely to be committed by such person in that room Upon an indictment for assaulting a policeman in the execution of his duty, it appeared that the policeman was called into a public-house to put an end to a disturbance which the defendant was making; he and the landlady were at high words; W. L. interfered, and the defendant was in the act of squaring at him when the policeman desired the defendant not to make a disturbance; the defendant, who was at the side of the bar, then attempted to go into the parlor in which a person was sitting: as the defendant attempted to get into the parlor, the policeman collared him, and prevented his going in; he then struck the policeman; neither the landlord nor landlady had desired the policeman to turn the defendant out of the house. Parke, B.: "The policeman had a right to be in the house without being called upon either by the landlord or landlady to interfere, but under the circumstances he had no authority to lay hold of the defendant, unless you are satisfied that a breach of the peace was likely to be committed by the defendant on the person in the parlor; and if you think it was not, it was no part of the policeman's duty to prevent the defendant from going into the parlor."()

But if a person make such a noise and disturbance in a public-house as would create alarm and disquiet the neighborhood, this would be such a breach of the peace as would justify a policeman in taking the party into custody, provided it took place in the presence of the policeman. To trespass for false imprisonment [*811 the defendant pleaded that he was possessed of a public-house, and that the plaintiff was in the house, and conducted himself in a riotous, quarrelsome, disorderly, and uncivil manner, and committed a breach of the peace therein; that the plaintiff was requested to depart, and refused, whereupon the defendant gently laid his hands on the plaintiff to remove him, and because the plaintiff violently and forcibly resisted the said removal, the defendant gave him in charge to a watchman, who saw the said breach of the peace: it appeared that a watchman, who was on duty, in consequence of hearing a noise, went into the defendant's public-house, where he found the plaintiff and five or six other young men making a disturbance; he led the plaintiff out of the house, and about fifteen yards along the street, and then let him go; he said he would go back and have his revenge, and went towards the public-house; the watchman went round his beat, and on his return he heard a person at the door of defendant's house cry "Watch," and he in consequence went in and found the plaintiff sitting down, he then sprung his rattle, and the defendant tried to put the plaintiff out of the house, the plaintiff having hold of the defendant's collar to resist being put out, on which the watchman took the plaintiff into custody,

(r) The 18 & 19 Vict. c. 118, s. 4, makes it lawful for "any constable at any time to enter into any house or place of public resort in England or Wales for the sale of beer, wine, spirits, or other fermented or distilled liquor," and imposes a penalty on persons refusing to admit such constable.

(8) Wheeler v. Whiting, 9 C. & P. 262 (38 E. C. L. R.), Patteson, J.

(t) Reg. v. Mabel, 9 C. & P. 574 (38 E. C. L. R.), Park, B.

and took him to the watchhouse. Parke, B.: "There is no doubt that a landlord may turn out a person who is making a disturbance in a public-house, though such disturbance does not amount to a breach of the peace. To do this the landlord may lay hands on him, and in so doing the landlord is not guilty of any breach of the peace. But if the person resists, and lays hands on the landlord, that is an unjustifiable assault upon the landlord; and, if the watchman in this case saw such assault committed, that would make out the plea. There might, it is true, be a sufficient breach of the peace to justify the defendant, as the landlord of the house, in giving the plaintiff into custody without this assault; and even if there was no assault at all. For if the plaintiff made such a noise and disturbance as would create alarm and would disquiet the neighborhood, and the persons passing along the adjacent street, that would be such a breach of the peace as would not only authorize the landlord to turn the plaintiff out of the house, but it would also give the landlord a right to have the plaintiff taken into custody, if this occurred in the view of the watchman: the watchman has said he saw the piece of work the first time he went into the house. Now, if the plaintiff and others were then conducting themselves in a manner calculated to disturb the neighborhood, this would justify the watchman in turning the plaintiff out, and in taking him into custody, if on his going to the house the second time he found the plaintiff still there."(u) Where on an indictment for assaulting a constable in the execution of his duty it appeared that some persons were drinking at a late hour of the night in a barn attached to a public-house, and the landlord desired the constable to clear them out, and while he was doing so the prisoners assaulted him; Bramwell, B., said: "The people were doing nothing illegal nor contrary to any Act of Parliament, and therefore the constable was not acting in the execution of his duty as such, although what he did *812] have been may very *laudable and proper. It would have been otherwise had there been a disturbance of the public peace, or any danger of a breach of the peace."(v)

Where in an action for assaulting the plaintiff and giving him into custody, the defendant justified having done so, and his witnesses stated that the plaintiff, who was the butler of the defendant, was making a great noise in the defendant's house, and had quarrelled with the coachman, and that when the defendant came down stairs the plaintiff was abusive to him and violent in his manner, and making a great noise, and laid hold of him, and they struggled together; Lord Campbell, C. J., directed the jury, that if a person came into a house, or was in it, and made a noise and disturbed the peace of the family, although no assault had been committed, the master of the house might turn him out or call a policeman to do so; and if the plaintiff had assaulted his master and misconducted himself in the manner described by the defendant's witnesses, the defendant would be justified in giving the plaintiff in charge to the policeman, to be dealt with according to law.(w)

It has sometimes happened that peace officers have taken opposite parties in an affray, and the death of one of them has ensued; as in the case put by Lord Hale, where A. and B., being constables of the vill of C., and a riot or quarrel happening between several persons, A. joined with one party, and commanded the adverse party to keep the peace, and B. joined with the other party, and in like manner commanded the adverse party to keep the peace, and the assistants and party of A. in the tumult killed B.(x)* This, Lord Hale says, seems but manslaughter, and not murder, inasmuch as the officers and their assistants were engaged one against the other, and each had as much authority as the other :(y) but upon this it has been remarked, that perhaps it had been better expressed to have said, that inasmuch as they acted not so much with a view to keep the peace, as in the nature of partisans to the different parties, they acted altogether out of the scope of their characters as peace officers, and without any authority whatever.(z) And in another case, Lord Hale says, that if the sheriff have a writ of possession against the house and lands of A., and A., pretending it to be a riot upon him, gain the constable of the vill to assist him, and to

(u) Howell v. Jackson, 6 C. & P. 723 (25 E. C. L. R), Parke B.

(v) Reg. v. Preble, 1 F. & F. 325. The defendants were convicted of a common assault. (w) Shaw v. Chairitie, 3 C. & K. 21. (x) 1 Hale 460.

(y) Id. Ibid.

(z) 1 East P. C. c. 5, s. 71, p. 304.

suppress the sheriff or his bailiffs, and in the conflict the constable be killed, this is not so much as manslaughter; but if any of the sheriff's officers were killed, it would be murder, because the constable had no authority to encounter the sheriff's proceeding when acting by virtue of the King's writ.(a)

[*813

There is a late case, which appears to have been ruled upon the foregoing principles. Some sheriff's officers having apprehended a man by virtue of a writ against him, a mob collected and endeavored by violence to rescue the prisoner. In the course of the scuffle, which was at ten o'clock at night, one of the bailiffs having been violently assaulted, struck one of the assailants, a *woman, and, as it was thought for some time, had killed her: whereupon, and before her recovery was ascertained, the constable was sent for, and charged with the custody of the bailiff who had struck the woman. The bailiffs, on the other hand, gave the constable notice of their authority, and represented the violence which had been. previously offered to them; notwithstanding which, he proceeded to take them into custody upon the charge of murder; and at first, offered to take care also of their prisoner, but the latter was soon rescued from them by the surrounding mob. The woman having recovered, the bailiffs were released by the constable the next morning. Upon an indictment for an assault and rescue, Heath, J., was clearly of opinion that the constable and his assistants were guilty of the assault and rescue, and directed the jury accordingly.(b)

Where private persons interpose in the case of sudden affrays to part the combatants, and prevent mischief, and give express notice of their friendly intent, it will be murder in either of the persons making the affray, who shall kill the party so interposing but it will not be murder in the other affrayer, unless he also strike the party.(c)

Some late statutes(d) give authority not only to constables but also to private persons to apprehend persons "found committing" certain offences specified in such statutes; in these cases it is requisite that the authority to apprehend should be strictly pursued. Thus where upon an indictment for maliciously cutting a farmer's servant, it appeared that the farmer had directed the servant to apprehend the prisoner for stealing turnips, and the servant very soon after this found the prisoner in a field adjoining his master's turnip field, with a quantity of turnips in his possession, and took him into custody, and proceeded with him first to his master's house, and thence to the house of the constable; but on their way there the prisoner said he would go no farther, and drew a knife and wounded the servant: it was contended that the servant had a right to apprehend the prisoner under the 7 & 8 Geo. 4, c. 29, s. 63; but it was held that by that section the owner of the property or his servants were only empowered to apprehend persons found committing offences against the Act, and to take them forthwith before a justice of the peace. That in this case the prisoner was not found committing the offence, but was in the next field; which brought the case neither within the letter nor the spirit of the enactment. Again, by this enactment, the owner or servant who apprehends must take the offender forthwith before a justice. Now the prisoner was actually taken to the master's, and was about to be taken to the constable's, all which was clearly wrong.(e)

So where on an indictment for the murder of a person, who was assisting a policeman to take a prisoner to the station-house, it appeared that the policeman apprehended the prisoner at night, and that he had concealed on his person new [*814 potatoes, fresh dug out of the ground, and with moist earth upon them, and which did not appear to have been dug out of the ground more than half an hour, and the policeman stated that he had been informed that gardens had been robbed, and that he apprehended the man on suspicion of stealing the potatoes out

(a) 1 Hale 460.

(b) Anon., Exeter Sum. Ass. 1793; 1 East P. C. c. 5, s. 71, p. 395.

(c) 1 Hawk. P. C. c. 31, ss. 48, 54; Fost. 272, 311; 1 East P. C. c. 5, s. 71, p. 304. Ante, p. 408.

(d) 24 & 25 Vict. c. 96, s. 103; c. 97, s. 61; c. 99, s. 31; 5 Geo. 4, c. 83, s. 6; 9 Geo. 4, c. 69, s. 2, &c.

(e) Rex v. Curran, 3 C. & P. 397 (14 E. C. L. R.), Vaughan, B.