is ended, and peace restored, and there is no danger of immediate renewal, without a warrant from a magistrate. (k) Upon an indictment for maliciously cutting Walby, it appeared that a man travelling upon the highway told the constable that a man coming along the road had been ill-using him, and charged the constable, in the prisoner's hearing, to take the prisoner before a magistrate for so misusing him; on which the constable, meeting the prisoner passing along the highway, ordered him to stop for insulting a man on the road, laid hold of him, tapped him on the shoulder, said he was his prisoner, and that he should take him to a magistrate, and ordered Walby to assist him, which W. did, and to which the prisoner submitted. No particulars of what the supposed ill-usage or insult consisted of appeared in evidence, nor did they pass in the constable's view or hearing, and therefore the apprehension and detainer appeared clearly thus far to have been unlawful. Afterwards, and whilst the prisoner was thus in custody, and before they found a magistrate, the prisoner struck the man, in the constable's presence, who had made the charge against him, and the constable then also told the prisoner he should take him before a magistrate; and some time afterwards, as they were proceeding along to a magistrate's the prisoner ran away, and attempted to escape, but was pursued by W. by the constable's order; and being overtaken by him, refused to stop, asking W. where his authority was, who said it was in his hand, alluding to a stick, which W. then had in his hand, and which the prisoner had given up to him at the commencement of the detainer; and without further information, when W. was going to take hold of him, the prisoner told him if he would not let him go he would stab him, and then gave him the cut in the face, for which he was thus indicted. Holroyd, J., doubted whether the effect of the first illegal custody might not operate upon the circumstances that subsequently took place, as a defence against the present indictment, either in rendering even the subsequent imprisonment tortious, or depriving the prisoner's conduct of the necessary legal ingredient of malice; and he reserved the case for the opinion of the judges, who held that the original arrest was illegal, and that the recaption would have been illegal, and therefore the case would not have been murder if death had ensued. (m) Where on an indictment for wounding with intent to disable, it appeared that the prosecutor was a sergeant of police and the prisoner a constable under him, and that the prosecutor went, as it was his duty, to the house of the prisoner to see that he was correct in the discharge of his duty, and the prisoner had some altercation with him, and the prosecutor left the house, the prisoner followed and struck him; and fell when attempting to strike him a second time, and the prosecutor then went away for assistance, and returned to the prisoner's house with two police constables, when the prisoner was not at home: they returned again (k) 1 East, P. C. c. 5, s. 72, p. 305, 2 Inst. 52. 2 Hawk. P. C. c. 12, s. 20, and c. 13, s. 8. 2 Lord Raym. 1301. Strickland v. Pell, Dalt. c. 1, s. 7. 2 Hale, 90. Handcock v. Sandham and others, 1785, and (m) R. v. Curvan, R. & M. 132. in two hours and saw him, and the prosecutor told him that he must go with him to the station; the prisoner said he would not stir an inch that night; the prosecutor attempted to take hold of him, whereupon the prisoner inflicted a severe wound upon him ; and the jury found him guilty of wounding with intent to prevent his apprehension. It was held, upon a case reserved, that the apprehension was not lawful; for the assault was committed at another time, and there was no probability of its being renewed.(n) Upon an indictment for assaulting the prosecutor, an officer in the police, in the execution of his duty, it appeared that the prosecutor was informed that a disturbance was going on in Patfield, and went thither, and found the prisoner's wife sitting crying under a hedge opposite their cottage, and he went with her into the cottage, and found the prisoner intoxicated, but sufficiently sober to know what he was doing. In his hearing, the wife stated to the prosecutor that the prisoner had knocked her down and beaten her shamefully. One Cook was present, and stated that he had seen the prisoner knock his wife down and jump upon her, and Cook 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 't is 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 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 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 (n) R. v. Walker, Dears, C. C. 358; R. v. Marsden, 37 L. J. M. C. 80; L. R. 1 C. C. R. 131. 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. (0) 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. (p) 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. (q) It has been said, that if peace officers meet with night-walkers,1 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. (r) 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. (8) 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. (t) Where a private Act authorises watchmen to apprehend (0) R. v. Light, D. & B. C. C. 332. (p) Fox v. Gaunt, 3 B. & Ad. 798. Bowditch v. Balchin, 5 Ex. R. 378. (q) 2 Hale, 88. Dalton (ch. 116, s. 3). Vide 1 East, P. C. c. 5, s. 72, p. 306. (r) 2 Hale, 89, 97. The statutes 2 Edw. 3, c. 3, and 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 Law rence v. Hedger, 3 Taunt. 14. (s) 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 R. v. Dadson, 2 Den. C. C. 35, post. (1) 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. See Lawrence v. Hedger, 3 Taunt. 14. 2 Hawk. P. C. c. 13, s. 6, c. 12, s. 20. 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. 173. 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 endeavours 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 AMERICAN NOTE. 1 In the American States there are statutes against night-walking. Bishop, i. s. 501(4). 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. (u) 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 be reasonably suspected of resorting for felonious purposes. (v) 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 authorise a policeman to do it, but it would be no part of a policeman'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.' (w) Upon an indictment for assaulting a policeman in the execution of his duty, it appeared that the policeman was called into a publichouse 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 parlour, in which a person was sitting; as the defendant attempted to get into the parlour, 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 parlour; and if you think it was not, it was no part of the policeman's duty to prevent the defendant from going into the parlour.' (y) To trespass for false imprisonment the defendant pleaded that he was possessed of a public-house, and that the plaintiff was in the or other peace officer, and he shall, on conviction, be punished in such a manner as is thereinafter directed. (u) Watson v. Carr, 1 Lewin, 6, Bayley, J. (v) Cowles v. Dunbar, Moo. & M. 37, Lord Tenterden, C. J. As to the meaning of frequenting' see Clark v. R., 14 Q. B. D. 92. (w) The 18 & 19 Vict. c. 118, s. 4, makes it lawful for any constable at any time to Wheeler 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 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 publichouse; 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, 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 neighbourhood, and the persons passing along the adjacent street, that would be such a breach of the peace as would not only authorise 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 neighbourhood, 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.' (z) 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 (*) Howell v. Jackson, 6 C. & P. 723, Parke, B. R. v. Prebble, 1 F. & F. 325. |