McLennon v. Richardson

81 Mass. 74 | Mass. | 1860

Bigelow, J.

The only question open on these exceptions is, whether the facts alleged in the defendant’s answer, if proved, would establish a legal justification of the trespass averred in the declaration. We think it very clear that they would not. There is no statute on which the defendant can rely to justify his acts ; and we know of no authority which a constable has at common law, without a warrant, to break open a house or shop used for the purposes to which it is averred the defendant’s premises were appropriated, or to arrest a person, without legal process, for committing the acts alleged in the answer. The facts set out, if proved, would show that offences had been committed for which adequate penalties are provided, to be enforced in due course of law. But they do not fall within that class which requires the immediate intervention of legal authority, on account of the grave nature of the offence, or because they actually disturb the public peace. The authority of a constable to break open doors and arrest without a warrant is confined to cases where treason or felony has been committed, or there is an affray or a breach of the peace in his presence. 2 Hale P. C. 88-96. 1 Hawk. c. 63, § 16. 1 Russell on Crimes, 629. 1 Chit. Crim. Law, 14, 15. Bac. Ab. Constable, C. It is said in 2 Hale P. C. 95, that “ if there be disorderly drinking or noise in a house at an unseasonable time of night, especially in inns, taverns or alehouses, the constable or his watch, demanding entrance, and being refused, may break open the doors to see and suppress the disorder.” No authority is given for this statement, nor, so far as we know, has it ever been recognized as the law in any adjudicated case. It probably had its origin in the practice of constables in London and its vicinity, as Lord Hale adds, “ and this is constantly used in London and Middlesex.” But if this be the true doctrine of the law, which we are not prepared to admit, the defendant does not bring his case within it by the averments in his answer. It is not alleged that there was any “ noise or disorderly drinking ” in the plaintiff’s premises at the time the defendant broke open the door; and if there had been, the rule, as stated by Lord Hale, would not permit him to arrest the plaintiff. Besides, he could not break open the door without first “ demanding entrance ” ; the answer does not aver that any demand for entrance was made; nor does the proof show that any such demand was made as to give the plaintiff notice that the defendant, as an officer of the law, sought an entrance into his premises. But it is not a question of proof; the whole case turned on the sufficiency of the answer; the defendant did not ask to amend it, and he could not legally prove in justification any facts which he had not duly pleaded. Exceptions overruled.