CHAP. VII. REMEDIES BY arrest upon hue and cry) (b) he would have no defence to an action for false imprisonment, although he had probable cause PARTIES, &c. for suspecting the guilt. (c) Therefore, in a plea of justification, he must aver not only that a felony had been committed by some one, but also state the particular facts or causes inducing him reasonably to suspect the party imprisoned to have been guilty of that particular felony. (d) And although persons who merely assist a constable may give in evidence the grounds of their defence under the plea of general issue, a person who gives charge, and first induces such constable to act, must plead the circumstances specially. (e) In cases of Misdemeanors it has recently been decided, that suspicion that a party has on a former occasion committed a misdemeanor, though accompanied with proof of the offence having been committed by some one, is no justification for giving the former in charge to a constable without a justice's warrant; and that there is no distinction in this respect between one kind of misdemeanor and another, as breach of peace and obtaining goods by false pretences. (ƒ) In cases of mere breach of the peace, before any charge has been made to a peace officer, and before he acts upon it without a justice's warrant, the latter must himself have had actual view of the breach of the peace, or the arrest without warrant would be illegal. (g) And where A. went to a house at night, demanding to see the servant, and he was told to depart, and he would not, and thereupon a constable was sent for, and A. went from the house to the garden, and when the constable arrived, A. told him that if a light appeared at the windows he would break them, upon which the constable took him into custody, (b) Hawk. b. 2, c. 12, s. 16. (c) Samuel v. Payne, Dougl. 359; Beckwith v. Phillip, 6 Bar. & Cres. 637; Ledwith v. Catchpoie, Cald. 291; Stonehouse v. Elliott, 6 Term R. 315; White v. Taylor, 4 Esp. R. 81; Flewster v. Royle, 1 Campb. 187; Hobbs v. Branscomb, 3 Campb. 420; Mure v. Kay, 4 Taunt. 34; 1 Hale's P. C. 610. In Beckwith v. Phillip, 6 Bar. & Cres. 625, Lord Tenterden stated, "that in order to justify a private person in imprisoning on suspicion of felony, he must not only make out a reasonable ground of suspicion, but must prove that a felony has actually been committed by some person though unknown; but a constable having reasonable ground to suspect that a felony has been committed, may, upon the charge of another, detain the suspected party, although it turn out that no felony had been committed." The case of Adams V. Moore, Selw. Ni. Pri. 4 ed. 865, is not law to the extent reported. But semble, (d) Id. ibid.; M'Cloughan v. Clayton, (e) Hough v. Marchant and another, 1 Mood. & M. 510. (f) Fox v. Gaunt, 3 Bar. & Adolp. 798. (g) Sharrock v. Hannemer, Cro. Eliz. 375; Hardy v. Murphy, 1 Esp. R. 294; Coupey v. Henley, 1 Esp. R. 540; M'Cloughan v. Clayton, Holt, C. N. P. 479; Rogers v. Jones, R. & M. C. C. 132; Stobbs v. Branscomb, 3 Campb. 420; 2Hale, 90. PARTIES, &c. CHAP. VII. it was held that as at most this amounted only to a threat to REMEDIES BY commit a breach of the peace, and did not constitute an actual breach in his view, the constable was not justified in so doing, and A. was acquitted upon an indictment for resisting the apprehension. (g) Under the Metropolis Police It is safer, therefore, in all cases of the least doubt, for private individuals, especially when time will allow, rather than thus acting for themselves, to apply to a magistrate for a warrant, because, whenever an arrest takes place under such a warrant, the party imprisoned cannot sue in trespass, nor can he sustain even an action on the case for the malicious charge occasioning the imprisonment, although it should turn out that no offence whatever had been committed, unless he can prove that the party who obtained the warrant acted maliciously and without probable cause. (h) It would be beyond the limits of this work to attempt to enumerate all the instances in which, by the common law, or by general or local statutes, private persons and officers are authorized, either with or without warrant, to apprehend supposed offenders. (i) The general rule is, that a private person, in order to justify or excuse his giving charge to a peace officer who has not had actual view of a breach of the peace, must be prepared to prove that a felony had been committed by some one, and that he had reasonable grounds upon facts to suspect that the party apprehended was the guilty person. (k) But a constable, or other proper officer, is justified in acting upon the charge of felony made by another, if he have reasonable grounds for suspecting that the party charged was guilty of the felony, though he turn out innocent, and although no felony whatever has actually been committed, () and if such officer have such reasonable suspicion, he may justifiably cause the party, though aged, and a resident in the place, even to leave his bed between ten and eleven at night, and go into prison till the next morning. (m) But he must not handcuff a person unless he has reason to fear an escape. (n) There are many regulations of a local nature; as those re-. Act, 10 G. 4, lating to "the metropolitan police district," and extending over the metropolis and its vicinity and the river Thames, and also Middlesex, Surrey, Hertford, Essex, and Kent, viz. the c. 44, s. 7. (g) Rex v. Bright, 4 Car. & P. 387. (i) See the general common law rules (k) Davis v. Russell, 5 Bing. 366; Fox v. Gaunt, 3 Bar. & Adolp. 798. (1) Id. ibid. 354; 2 Moore & P. 590, S. C.; Beckwith v. Phillip, 6 B. & Cres. 637. (m) Davis v. Russell, 5 Bing. S65. (n) Wright v. Court, 4 B. & Cres. 596; 6 D. & R. 623, S. C. 3 Geo. 4, c. 55; (o) 6 Geo. 4, c. 21; and 10 Geo. 4, c. 44, (p) and c. 45, and which authorize any man belonging to the police force, during the time of his being on duty, to apprehend certain suspicious persons, as "all loose, idle, and disorderly persons whom he shall find disturbing the public peace, or whom he shall have just cause to suspect of evil design, and all persons whom he shall find, between sunset and the hour of eight in the forenoon, lying in any highway, yard, or other place, or loitering therein, and not giving a satisfactory account of themselves, and to deliver any person so apprehended into the custody of the constable appointed under that act." (q) The prior act, 3 Gen. 4, c. 55, s. 21, authorized, besides police officers, (r) " other persons" to apprehend every such suspected person, or reputed thief, and to convey him before a justice. But it was held that that provision only applied to the apprehension of persons of general bad character as rogues and vagabonds, and not to arrest on suspicion only of a particular felony. (s) Some powers of this nature were also given by the metropolis paving act. There are some acts extending over the whole kingdom, and which, on account of their general importance, we will more particularly consider. The vagrant act, 5 Geo. 4, c. 83, extends over the whole of England, and after defining, but in very general terms, who shall be deemed idle and disorderly persons, and who rogues and vagabonds, and who incorrigible rogues (and under which three heads almost every kind of suspicious person seems to be included,) (t) it authorizes "any (o) Sec. 19, 21, 25, 29, 32. (p) Sec. 17. See the statutes, Burn's J. Police, Metropolis. (g) 10 G. 4, c. 44, s. 7. (r) As the power of other persons to apprehend was not repeated in 10 G. 4, c. 44, s. 7, it may be collected that it was considered dangerous to continue that power, and perhaps in respect of the case mentioned in the next note. (s) Cowles v. Dunbar, 1 M. & M. 37; 2 Car. & P. 565, S. C., decided on the preceding act, 3 G. 4, c. 55, s. 2. (t) See Vagrant Act, 5 G. 4, c. 83, s. 3, 4, 5; see them well analyzed and stated, Burn's J. 26 ed. tit. Vagrant, and infra. The 5 G. 4, c. 83, s. 3, enacts-1. "That every person being able wholly or in part to maintain himself or herself, or his or her family, by work or by other means, and wilfully refusing or neglecting so to do, by which refusal or neglect he or she, or any of his or her family, whom he or she may be legally bound to maintain, shall have become chargeable to any parish, township, or place;" 2. "Every person returning to and becoming chargeable in any parish, township, or place, from whence he or she shall have been legally removed by order of two justices of the peace, unless he or she shall produce a certificate of the churchwardens and overseers of the poor of some other parish, township, or place, thereby acknowledging him or her to be settled in such other parish, township, or place;" 3. " Every petty chapman or pedlar wandering abroad and trading, without being duly licensed, or otherwise authorized by law;" 4. "Every common prostitute wandering in the public streets or public highways, or in any place of public resort, and behaving in a riotous or indecent manner;" 5. "And every person wandering abroad, or placing himself or herself in any public place, street, highway, court, or passage, to beg or gather alms, or causing, or procuring, or encouraging any child or children so to do;" CHAP. VII. person whatsoever to apprehend any person who shall be found PARTIES, &c. offending against that act," (as inter alia “being found in or REMEDIES BY 6. [And every person asking alms under a certificate or other instrument prohibited by the act, s. 16;] "Shall be deemed an idle and disorderly person within the true intent and meaning of this act; and it shall be lawful for any justice of the peace to commit such offender (being thereof convicted before him by his own view, or by the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses) to the house of correction, there to be kept to hard labour for any time not exceeding one calendar month." By the 5 Geo. 4, c. 83, s. 4, it is enacted," that every person committing any of the offences hereinbefore mentioned, after having been convicted as an idle and disorderly person;" 2. " Every person pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of his majesty's subjects;" 3. "Every person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon, not having any visible means of subsistence, and not giving a good account of himself or herself;" 4. Every person wilfully exposing to view, in any street, road, highway, or public place, any obscene print, picture, or other indecent exhibition;" 5. "Every person wilfully, openly, lewdly, and obscenely exposing his person in any street, road, or public highway, or in the view thereof, or in any place of public resort, with intent to insult any female;" 6. " Every person wandering abroad, and endeavouring, by the exposure of wounds or deformities, to obtain or gather alms;" 7. "Every person going about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind, under any false or fraudulent pretence;" 8. "Every person running away and leaving his wife, or his or her child or children, chargeable, or whereby she or they, or any of them, shall become chargeable to any parish, township, or place;" 9. "Every person playing or betting in any street, road, highway, or other open and public place, at or with any table or instrument of gaming, at any game, or pretended game of chance;" 10. Every person having in his or her custody or possession any picklock key, crow, jack, bit, or other implement, with intent feloniously to break into any dwellinghouse, warehouse, coach-house, stable, or outbuilding, or being armed with any gun, pistol, hanger, cutlass, bludgeon, or other offensive weapon, or having upon him or her any instrument with intent to commit any felonious act;"+ 11. " Every person being found in or upon any dwelling-house, warehouse, coachhouse, stable, or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose." + 12. "Every suspected person or reputed thief, frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or warehouse, near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, highway, or place adjacent, with intent to commit felony;" 13. "And every person apprehended as an idle and disorderly person, and violently resisting any constable or other peace-officer so apprehending him or her, and being subsequently convicted of the offence for which he or she shall have been so apprehended;" § "Shall be deemed a rogue and vagabond, within the true intent and meaning of this act; and it shall be lawful for any justice of the peace to commit such offender (being thereof convicted before him by the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses) to the house of correction, there to be kept to hard labour for any time not exceeding three calendar months; and every such picklock key, crow, jack, bit, and other implement, and every such gun, pistol, hanger, cutlass, bludgeon, or other offensive weapon, and every such instrument as aforesaid, shall, by the conviction of the offender, become forfeited to the king's majesty." By the 5 Geo. 4, c. 85, s. 5, it is enacted, 1. "That every person breaking or escaping out of any place of legal confinement before the expiration of the term for which he or she shall have been committed or ordered to be confined by virtue of this act;" In Rex v. Clarke, 1 Cowp. 35, it was held, that playing bowls was not within the 17 Geo. 2, c. 5, s. 2. + See Rex v. Howarth, R. & M., C. C. 207. And see 4 Geo. 4, c. 64, s. 7. § See another instance in s. 15, upon any dwelling-house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose," (u) and forthwith to take and convey him before a justice of the peace, to be dealt with as therein mentioned. (u) Upon the vagrant act it has been held that a man may be arrested without warrant, as a person "found in a dwelling-house, for an unlawful purpose," if he have been seen in the house, although before apprehension he has got out, and was afterwards taken on fresh pursuit; and that it makes no difference that he was not seen getting out of the house, if he was found concealing himself to avoid being apprehended, and that to make such arrest legal, it is not necessary that the person should have at the time he was arrested a continuing purpose to commit a felony, and that be may be arrested, though the unlawful purpose had wholly ended; and it was also held, that where the circumstances are such that a man must know why he is about to be apprehended, he need not be told why, and his resistance of arrest will be illegal. (x) CHAP. VII. REMEDIES BY PARTIES, &c. The statute against larcenies and petty takings of personal Apprehension or real property, (y) contains special provisions, enabling the under the act against larceperson entrusted with the care of Deer, and for any of his nies and petty assistants, whether on his premises or not, to demand from any takings, 7 & 8 person who has entered into the grounds therein mentioned, with intent unlawfully to take deer, any gun or engine in his G. 4, c. 29. 2. "Every person committing any offence against this act which shall subject him or her to be dealt with as a rogue and vagabond, such person having been at some former time adjudged so to be, and duly convicted thereof;" 3. "And every person apprehended as a rogue and vagabond, and violently resisting any constable or other peace-officer so apprehending him or her, and being subsequently convicted of the offence for which he or she shall have been so apprehended;" "Shall be deemed an incorrigible rogue within the true intent and meaning of this act; and it shall be lawful for any justice of the peace to commit such offender (being thereof convicted before him, by the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses,) to the house of correction, there to remain until the next general or quarter-sessions of the peace; and every such offender who shall be so committed to the house of correction shall be there kept to hard labour during the period of his or her imprisonment." (u) Id. s. 6. See the very able and acute observations on the Vagrant Act by Mr. Adolphus, published A. D. 1824, showing the undefined, unlimited, and dangerous powers given by that act, and the indiscreet or malevolent exercise of which so frequently give rise to the most vexatious imprisonment and subsequent litigation. It will be found that, under that act, the mere suspicion of a propensity to commit a trifling offence is punishable, by a single magistrate, with three calendar months' imprisonment, without the power of obtaining release upon finding the most satisfactory sureties for his good behaviour. And this power is too (x) Rex v. Haworth R. & M. C. C. |