that the second plea was made out; I therefore think that the rule for a new trial ought to be made absolute. 1845. Rule absolute. Lord DENMAN, C. J., dissented. BIRD V. JONES. Patteson, J. 1838. GRAINGER v. HILL, 4 Bing. N. C. 212. Placing a party under restraint of an officer of the law, who holds a warrant for his arrest, is an imprisonment, without actual contact by the officer, or by the party setting him in motion. TINDAL, C. J.-This is a special action on the case, in which the plaintiff declares that he was the master and owner of a vessel which, in September, 1836, he mortgaged to the defendants for the sum of £80, with a covenant for repayment in September, 1837, and under a stipulation that, in the meantime, the plaintiff should retain the command of the vessel, and prosecute voyages therein for his own profit: that the defendants, in order to compel the plaintiff through duress to give up the register of the vessel, without which he could not go to sea, before the money lent on mortgage became due, threatened to arrest him for the same unless he immediately paid the amount: that, upon the plaintiff refusing to pay it, the defendants, knowing he could not provide bail, arrested him under a capias, endorsed to levy £95 178. 6d., and kept him imprisoned, until, by duress, he was compelled to give up the register, which the defendants then unlawfully detained; by means whereof the plaintiff lost four voyages from London to Caen. There is also a count in trover for the register. The defendants pleaded the general issue; and, after a verdict for the plaintiff, the case comes before us on a double ground, under an application for a nonsuit, and in arrest of judgement. The first ground urged for a nonsuit is, that the facts proved with respect to the writ of capias do not amount to an arrest. It appears to me that the arrest was sufficiently established. The facts are, that the sheriff's officer comes with a capias to the plaintiff, when he is ill in bed, and tells him that, unless he delivers the register or finds bail, he must either take him or leave a man with him. Without actual contact, the officer's insisting that the plaintiff should produce the register, or find bail, shows 1838. GRAINGER v. HILL. 1838. GRAINGER v. HILL Tindal, C.J. 1835. TIMOTHY v. SIMPSON. that the plaintiff was in a situation in which bail was to be procured; that was a sufficient restraint upon the plaintiff's person to amount to an arrest. The authority in Buller's Nisi Prius, p. 62, goes the full length. If the bailiff, who has a process against one, says to him, when he is on horseback or in a coach, "you are my prisoner; I have a writ 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.' But the matter does not rest there; for, upon the suit being arranged, a caption fee, which had been charged by the officer to the plaintiff, was repaid to him by the defendants, who thereby admit the propriety of the charge. Park, Vaughan, and BOSANQUET, JJ., delivered judgements to the like effect, and the rule was discharged. 1835. TIMOTHY v. SIMPSON, 1 C. M. & R. 757. A private person is justified in arresting one who is committing a breach of the peace in his presence, where the affray is still continuing, or likely to be renewed. PARKE, B., delivered the judgement of the Court. This was an action of trespass and false imprisonment, tried before me at the sittings after Trinity Term last, at Guildhall. The declaration was for an assault and false imprisonment; to which there was a plea of not guilty, and a special plea of justification, on the ground that the plaintiff was guilty of a breach of the peace in the defendant's dwelling-house, and that he thereupon gave him in charge to a policeman, who was not averred to have had view of the breach of the peace. To this special plea there was a replication of de iniuriá suá propriá absque tali causá. On the trial, the jury found a verdict for the plaintiff on the general issue, and for the defendant on the special plea, as I was of opinion that the material parts of it were proved; but, as it appeared to me that the plea was bad in law, I directed the jury to assess the damages on the general issue, and I also gave the plaintiff permission to move to enter a verdict for him on the special plea, if the Court should be of opinion that it was not substantially proved. A rule nisi having been obtained to enter a verdict for the plaintiff, or judgement non obstante veredicto, the case was fully argued before my We Brothers Bolland, Alderson, Gurney, and myself, last term. The facts of the case, as to which there was little or rather no contradictory evidence, may be very shortly stated. The defendant was a linen-draper; the plaintiff was passing his shop, and, seeing an article in the window, with a ticket apparently attached to it, denoting a low price, sent his companion in to buy it; the shopman refused, and demanded a larger price; the plaintiff went in himself and required the article at the lower rate. The shopman still insisted on a greater price; the plaintiff called it an imposition.' Some of the shopmen desired him to go out of the shop in a somewhat offensive manner; he refused to go without the article at the price he bid for it; the shopmen pushed him out. Before they did so, he declared he would strike any one who laid hands on him. One of the shopmen, really supposing, or pretending to suppose this to be a challenge to fight, stepped out and struck the plaintiff in the face, near the shop door; the plaintiff went back into the shop and returned the blow, and a contest commenced, in which the other shopmen took a part, and fell on the plaintiff. There was a great noise in the shop, so that the business could not go on-many persons were there, and others about the street door. The noise brought down the defendant, who was sitting in the room above. When he came down he found the shop in disorder, and the plaintiff on the ground struggling and scuffling with the shopmen; and this scuffle continued in the defendant's presence for two or three minutes. The defendant sent for a policeman, who soon afterwards came; in the meantime the plaintiff was taken hold of by two of the shopmen, who, however, relinquished their hold before the policeman came; and, on his arrival, the plaintiff was requested by the defendant to go from the shop quietly; but he refused, unless he first obtained his hat, which he had lost in the scuffle. He was standing still in the shop insisting on his right to remain there, and a mob gathering round the door; when the defendant gave him in charge to the policeman, who took him to the police station. The defendant followed; but, on the recommendation of the constable at the station, the charge was dropped. 1835. TIMOTHY v. SIMPSON Parke, B. 1835. TIMOTHY v. SIMPSON. Parke, B. Upon these facts the plaintiff appears to have been, in the first instance, a trespasser, by refusing to quit the shop when requested, and so to have been the cause of the affray which subsequently took place; but the first act of unlawful violence and breach of the peace was committed by the shopman; that led to a conflict, in which there were mutual acts of violence clearly amounting to an affray, the latter part of which took place in the defendant's presence; and the plaintiff was on the spot on which the breach of the peace occurred, persisting in remaining there under such circumstances as to make it probable that the breach of the peace would be renewed, when he was delivered by the defendant to the police officer in the very place where the affray had happened. The first question which arises upon these facts is, whether the defendant had a right to arrest and deliver the plaintiff to a constable, the police officer having, by the Stat. 10 Geo. IV, c. 44, s. 4, the same powers as a constable has at common law. It is not necessary for us to decide in the present case whether a private individual, who has seen an affray committed, may give in charge to a constable who has not, and such constable may thereupon take into his custody the affrayers, or either of them, in order to be carried before a justice, after the affray has entirely ceased, after the offenders have quitted the place where it was committed, and there is no danger of its renewal. The power of a constable to take into his custody upon the reasonable information of a private person under such circumstances, and of that person to give in charge, must be correlative. Now, as to the authority of a constable, it is perfectly clear that he is not entitled to arrest, in order himself to take sureties of the peace, for he cannot administer an oath: Sharrock v. Hannemer1; but whether he has that power, in order to take before a magistrate, that he may take sureties of the peace, is a question on which the authorities differ. Lord Hale seems to have been of opinion that a constable has this power: 2 Hale's Pleas of the Crown, 89. And the same rule has been laid down at Nisi Prius by Lord Mansfield, in a case referred to in 2 East's Pleas of the Crown, 306; and by Buller, J., in two others, one quoted in the same place, and another cited in 3 Campb. N. P. C. 421. On the other hand, there is a dictum to the contrary in Brook's Abt. Faux Impt. 6, which is referred to and adopted by 1 Cro. Eliz. 376; Owen, 105, S. C. nomine, Scarrel v. Tanner. Lord Coke in 2 Inst. 52; Lord Holt, in The Queen v. Tooley 1, 2 1835. TIMOTHY V. SIMPSON. Parke, B. |