*1 ’ Erben. 1869.'] case. of
Statement Guardian, her Chester, Appel Elisha W. Ellen Burns, by Charles Erben and Thomas Frost, lant, Respondents. in has by a is excused where An arrest individual fad suspect the ground to been committed and there reasonable commission; a constable innocent, its but although in truth of felony has warrant, making is in an arrest without suspect that one ground to if he has reasonable design. been, good and acts faith without evil to the circumstances no conflict evidence Where prosecution, imprisonment actions for false and malicious suspicion one of ground of law of cause or reasonable not for the powers of con- Metropolitan police all the The members of the force have process. State, except stables this civil service respondent, part appellant, argued by the (Submitted April 2d, 1869, 12th, 1869.) and decided June Court This is an from Superior appeal judgment z of nonsuit. Héw York, judgment affirming averred that the defendants maliciously, and with intent said did, illegally injure her without her, did, force, compel and did there and them to a house, with then restrain of' her &c., liberty, and without or so to do, right authority her will, &e.” The defendant made default. officer, Frost, Erben answered: 1st, complaint; Denying That on the 15th of the house Ho. 3d,' July, West 38th the father of street, occupied by Henry the defendant Erben with whom the latter resided, robbed certain silver that at the time of said rob- ware; soon after ; bery house, quitted that none than members of the others, believed, as defendant were on the at about the where- household, time, premises fore said of being liable to guilty Brass [June, Bebes. case,
Statement *2 of or to that the privy co-defendant, Frost, was felony; patrolman and these facts to his know- police, coming in of his ledge, he, discharge patrolman, required said defendant, to him to a sta- Erben, accompany tion officer of such station that, upon charge being informed of the he directed said- to felony, patrolman bring said before him; that said called plaintiff patrolman said and to her him to said plaintiff requested accompany did which she station, voluntarily.” The was and trial, it was shown that proved in the plaintiff was house servant at the that visiting time; she left the house that no other than after; members of the known to were the house at the family that time; when was discovered the patrolman was sent that he came examined the for; was premises, informed of there and been that plaintiff’s having gone, j on it defendant, facts Erben, that the being suggested ought
to be at the station direction of his father reported house, by went there with the case to the patrolman, reported on and said he there sergeant duty, thought her to have examined. The against plaintiff enough sergeant then said he had better patrolman bring plaintiff up. The defendant to patrolman requested him, accompany at his went Plaintiff was to the plaintiff request. brought station after few house, where, sergeant, inquiries n ' she was return home. permitted to in the z There was some conflict evidence as to defen slight dant’s action at residence. The testified plaintiff’s plaintiff said she had better that “Erben go house;” station
another witness Erben said she must testified go defendant testified it officer house.” “ must to the station that he who said she said house;” until her when friends, appealed nothing n have to said in “she would that he said reply, go;” in the house answer to else inquiries. nothing except “I the station wanted to come to testified patrolman “told her that she me;” go;” house with that. Eebejst. Bunxs n. Court, per James, Erben he had better he told have her Erben arrested; assented and went with hint to the station house.”
At the close the case the defendant dismiss moved to on grounds.: 1st. That there him evidence sufficient to charge in the action: damages 2d. That it evidence appearing committed, and there was cause having principal accessory, the material being dispute concerning his conduct. *3 The motion was that the resisted, plaintiff insisting case should jury.
The court decided that the question cause, or probable cause, was of law for the court, not of for fact complaint dismissed, which the plaintiff duly excepted.
Amasa J.
for
Parker,
appellant.
Albert Matthews, for the
cited West v. Baxen
respondent,
&
M.,
dale
Gr.
Laws of
(9
S.,
200,
141);
8; Holley
p.
§
v. Mix
1
Wend.,
Hale P.
(3
5
350);
C., 587; Dane’s Abr.,
1
Cr.
L.,
Chit.
Beckwith
15, 17;
v.
B. &
Philby (6
C.,
Samuel
638);
v. Payne (1 Doug.,
Davis v. Russell
359);
Rohan v.
(5 Bingham, 354);
(5
Masten
Cush., 281);
Sarwin
v.
Deyo Wend.,
Buckley Ketteltas
(2
424);
(2 Seld., 384);
Besson v. Southard
Seld.,
236); McCormick v. Sisson (7
2
Cow.,
Hillard on
715);
Torts, 454;
v. Green
Payne
(Sm.
&
Elder v.
Mar.,
Morrison
507)
(
J J. This Aires, case was tried as an were action for malicious In prosecution. such an action the burden was ¡ show want of upon cause. Ho probable such evidence was and, as an therefore, such given, action, the case was of. properly disposed
—Haud Yon. I. [June, Brans v. Erbest. Court, per James, are for an
But the allegations illegal and detention. Such acts constitute what is arrest usually an action in an of false denominated imprisonment; act, a direct which nature of for wrong trespass illegal must participated. (Johnstone defendant personally ) Tenn, Or the act must have been Sutton, Rep., 544. & (Hopkins Crowe, or indirect C. his direct procurement. an action an unlawful P., detention, gist 573.) inferred so at least, motive will to sustain the far, and evidence to actual motive bears action; disprove of damages. cause, Probable or reasonable for suspicion against ground, for arrest or affords no justification imprison- unless ment, actually the burden of case proving and the facts relied establish or reasonable defendant. can or taken be arrested
As principle, general aif or a warrant. But breach into without felony, custody been committed fact, has, peace, any person, may justified, by *4 not; warrant or whether there was time to procure aby be arrested suspicion if innocent is not unless such individual excused individual, and there was reasona committed, offence has, fact, Pl. Cr., arrested. (Hale’s ble ground Mix, Wend., 353.) 15; 1 Chit. Cr. Hally Law, “If in Samuel Payne said, (Doug., 346): Mansfield man, has been committed, any a felony of may justify apprehending suspicion, probable ground him See before carrying magistrate. suspected person West v. Baxendale Beaumont also Hobbs 420); (3 Camp., Com. Bench Rep., 141). This, for or reasonable cause, of ground question probable malicious it for prosecu- whether arises actions law, the evidence unless or false of tion one imprisonment, y. Erben. Woodruff, J. Court, per which, out of which event it is the arises conflicting; if of court to instruct the what estab jury to them will constitute and submit lished, probable as to such facts. (Bulkley Ketteltas, question N. Y., 384.)
In this case there was no about the facts dispute bearing of cause. It was undisputed had been was in the house at the time it that she left after. There was not, therefore, for any question one of simply law, and, such, proof showed reasonable plaintiff. against Therefore, that defendant entered a conceding assisted in arrest, complete established. justification The nonsuit was and the right, should judgment affirmed. section 8 act to establish By
Woodruff, Police Metropolitan District, passed April 15th, 1857 (chap. 569 of Laws of the members of the 1857), force of that district are State of given every Hew part York, all common law statutory powers constables, except for the service civil And in the process.” act amendatory 259 of April passed Laws of (chap. it is declared the 28th section, the members of the police force of that district shall possess every part State all the common law and statutory powers constables, *' for the service of civil except process.” Yin of information pursuance given by defendant, Erben, the defendant, Frost, arrested the accompanied warrant, took her to the station, where she was detained a few minutes, and after some con- *5 versation with the officer in she to charge, permitted return to her residence. For this she has the brought present false imprisonment.
A had committed that at the house evening, Ebbes. -Brass [June per Wooubott, the that father. On Erben, the defendant’s
of Mr. point Henry had The visited is no or -conflict. plaintiff dispute and, information house evening, according anot member was the person defendant acted, only the basement. Silver who had been family, It there when the from the basement. been stolen after and was missed o’clock; entered until ./ after she left the house. Of these facts very proof -and was distinct without contradiction-. a of these Frost,
Upon report accompanied by stated. as above n under the above whether statutes therefore, inquiry is, rule in of arrests made or cited and the common law respect to recover. was entitled aided by private persons, the submission There facts in were no dispute requiring that there unless it be held jury, justification.
I have doubt The writers subject. I so far as cases, criminal law the reported hold examined uniform them, language. Ch. Beckwith v. Barn. J., Philby Tenterden, Cres.,
& law this ease says: only a -to whether a cause -constable, reasonable is, having suspect a has a committed detain felony, may a to have until he can he before justice brought peace his conduct There is this distinction between investigated. individual and order constable; justify not he must former causing imprisonment person, make must reasonable out ground "that a whereas prove constable having detain the sus
has been is authorized party -made authorities.” until can be inquiry proper pected on Crime, Russell 12, 13; Hawk P. book C., 2, (See chap. 3; Samuel 5 L., 242, Cr. L., 15, 17; Cr. ; Steph. Chit. 14 ; 3 Taunt., Lawrence v. Hedger, v. Payne, 358; Dong., Brandscomb, 2 Ld. Hobbsv. Regina Toohy, Raymond, *6 v. Beben. Woodruff, per Davis v. Russell, 354; Cowles Camp., Bing, 2 Car. and Dunbar, P., 565.)
In Ledwith and 1st Catchpole (Cald. Cas., Burns, in an Justice, says, p. 130, 1), Mansfield, “The whether a officer: has been question is, felony committed or not. And then the fundamental distinction that if a been is, felony actually private as well as a if officer, person may, arrest; not, turns arrest bona ? was the question always upon this, fide Was the act done of an or fairly pursuit offender, ** * or ill It malice, will? would be a design, terri ble under an arrest if, not thing, could * made an *; innocent man has taken many may but the mischief and up upon inconvenience suspicion; in this public is point view, comparatively nothing; is of great consequence country.” of an arrest justification by private person in Allen Wright on Payne, 522), depend Carr first, fact that had been felony second, that the circumstances were such a reasonable have person, acting would passion prejudice, it. fairly did suspected who being person These in this State Mix Clute are affirmed principles distinct terms. If a (3 Wend., has been very felony committed the arrest person bemay justified without warrant. If an innocent is by any person arrested indi- upon suspicion by individual, i/n excused eorrvrmtted, vidual if fact arrested. But and a if committed by any one, individual arrest without such arrest illegal, «be he acted if informa- justified officer another he had reason to tion from which believe.” fact fact this case proved being however committed,'I have hesitation that, saying unfortunate it was to the fully circumstances led her arrest. It is claimed [Juné, v. Jatcox. Turner of case.
Statement submitted these circumstances should *7 ¡Not verdict no reasonable so; a finding evidence, have been There was no and that the arrest was made conflict of testimony, faith, is to malice, grounds, my good mind incontrovertible. taken to me to have been mis- appears appeal of the construction and effect of the statutes
apprehension I think the policeman. power conferring power per- and I notice that the rules of the clear, fectly regulations are therewith and it is board of conformity to take the arrested of the officer person immediately or if made at or when the Police before night house, where courts are not immediately open, to examine whether there is the officer on duty required and if for the cause the so, complaint, reasonable ground the next before the court Under morning. be taken party sometimes innocent parties may subjected such system, more lax mortification; rules inconvenience dangerous peace community would be greatly of criminals frequent easy. and make escape affirmed. should The judgment affirmed. concurring, judgment All judges David C. of Norman Turner, Assignee Pulver, Amos A. Green, M. John Respondent John Jaycox, Jr., A. Jaycox, and James Appellants. D. Green, Thomas goods, assigning all creditors the benefit of assignment general A accounts, claims, demands, bonds, notes, hills, book merchandise, chattels, debt, property every action, judgments, evidences choses ” particularly assignor), more enu- (of the and nature whatsoever name per- annexed,” all hereto covers the schedule and described merated enumerated though none was described assignor, property sonal specified schedule.