averment in their plea, because they were punishable if they did not obey the process of the court; yet when the party, or his attorney, or a mere stranger, pleaded a justification under process of an inferior court of record, it was necessary for them to state, that the cause of action arose within the jurisdiction of the court (19). Merely stating in the plea the declaration in the court below, which contained an averment that the cause of action arose within the jurisdiction, is not sufficient, for such averment is not traversable. 3. Before the time of Charles the Second, it was necessary to set forth the proceedings had in the inferior court at length (20); but now they may be set out shortly with a taliter processum esty; but if the party justify under a capias ad responden x Adney v. Vernon, 3 Lev, 243. y Patrick v. Johnson, 3 Lev. 403. Row land v. Veale, Cowp. 18. Higginson v. Martin, 2 Mod. 197. appear that the process issued in a cause wherein the court below had jurisdiction. (19) But it is not necessary to set forth the cause of action, Rowland v. Veale, Cowp. 18. recognized in Belk v. Broadbent, 3 T. R. 183. where the same doctrine was applied to a justification under mesne process issuing out of a superior court, and in which the defendant merely stated, that the writ upon which the plaintiff had been arrested had been issued upon an affidavit to hold to bail, without stating any cause of action for which the plaintiff was liable to be arrested. (20) There is an obiter dictum in Morse v. James, Willes, 128. that the plaintiff, or a mere stranger, must set forth the procedings at length, and it is there said to have been established in Moravia v. Sloper. Upon an examination of that case, I cannot find that any such point was expressly decided in it. The court, indeed, in that case, were of opinion, that the party, having set forth a capias, ought to have shown a precedent summons, and that from the taliter processum est, as there pleaded, a summons could not be presumed. It is worthy of remark, that Willes, C, J., speaking of Moravia v. Slope, in Titley v. Foxall,* says, "He held, in Moravia v. Sloper, that taliter processum est would be sufficient, if it did not appear (as it did in that case,) that there could not have been a precedent summons." So in Johnson v. Warner, Willes, 528. it was holden that this mode of pleading, by taliter processum est, was good, and the modern practice is in conformity with it. Rowland v. Veale, Cowp. 18. and 1 Wms. Saund. 92. n. (2). * Willes, 690. dum, a precedent summons ought to be set forth, or at least the plea ought to be so framed, that the court may intend that a precedent summons had issueda; for a capias without a summons is illegal. Where it is stated that the capias issued at the same court at which the plaint was levied, this intendment cannot be madeb; but where it appears on the plea, that the plaint was levied at one court, and the capias issued at a subsequent court, and this allegation is introduced by a taliter processum est, there such intendment may be made. In justifying a trespass under the process of a foreign court, it seems that the plea should be formed in analogy to similar justifications under the process of our inferior courts; but, at any rate, a plea which only states that the court abroad was governed by foreign laws, that the property seized was within its jurisdiction, that certain legal proceedings were had, according to such foreign laws, against the property in question, in such court having competent jurisdiction in that behalf, et taliter processum, &c.; that the defendant was ordered, by the said court having competent arthority in that behalf, to seize the property, is bad, as being too general, and not giving the plaintiff notice, whether the defendant justified as an officer of the court, or party to the cause, or of what nature the charge was, or by whom instituted, or what the order of seizure was, whether absolute or quousque, &c.d. Regularly, process ought to describe the party against whom it is meant to be issued, and the arrest of one person cannot be justified under a writ sued out against another. To trespass for false imprisonmente by A. B., the defendant pleaded, that J. S. sued out a writ of latitat against the plaintiff, A. B., therein called by the name of C. B., directed. to the sheriff of L., and then set forth the writ, authorizing the sheriff to arrest C. B. &c., who directed his warrant to the defendant, and thereby commanded him to take the said A. B., therein called by the name of C. B., &c. concluding with an averment, that the said A. B. and C. B., in the said writ and warrant mentioned, are one and the same person. On general demurrer, the plea was holden to be bad, Lord Ellenborough, C. J. observing that this case was exactly the z Marpole v. Basnett, Willes, 38. n. (a.) v. Freeman, reported in Say. 81. and 2 Wilson 5, and illustrated by Durnford, Willes, 39. d Collett v. Ld. Keith, 2 East, 260. e Shadgett v. Clipson, 8 East, 328. same in principle as Cole v. Hindson, 6 T. R. 234. (21) And Lawrence, J. said, "in Cole v. Hindson, Lord Kenyon observed, that there was not any averment that the plaintiff was as well known by the one name as the other; neither was there any such averment in this case." A peace-officer may justify an arrest in the day-time on a reasonable charge of felony without a warrant, although it should afterwards appear that a felony had not been committed. So a constable, having reasonable ground to suspect that a felony has been committed, is authorized to detain the party suspected, until inquiry can be made by the proper authorities; although it appear afterwards that a felony has not been committed. So watchmen and beadles have authority at common law to arrest, and detain in prison for examination, persons walking in the streets at night, whom there is reasonable ground to suspect of felony, although there is no proof of a felony having been committedh. But when a private person apprehends another on suspicion of felony, he does it at his peril, and is liable to an action, unless he can establish in proof that the party has actually been guilty of a felony. Proof of mere suspicion will not bar the action, although it may be given in evidence in mitigation of damages. And the plea justifying an arrest by a private person, on suspicion of felony, must shew the circumstances, from which the court may judge whether the suspicion were reasonable1. Suspicion that a person has on a former occasion committed a misde f Samuel v. Payne, Doug. 358. See also Cald. 291. 2 Esp. N. P. C. 540. and 3 Campb. 420. g Beckwith v. Philby and others, 6 B. and C. 635. Nicholson v. Hardwick, 5 C. and P. 495. S. P. Gurney, B. h Lawrence v. Hedger, 3 Taunt. 14. k S. C. 1 Mure v. (21) In that case to trespass for taking the goods of A. B., the defendant (an officer) pleaded that he took them under a distringas against C. B., meaning the said A. B., to compel an appearance, averring that A. B. and C. B. were the same person. N. A. B. had not appeared in the original action. On demurrer, the plea was holden to be bad; Lord Kenyon, C. J. observing, that this was distinguishable from Crawford v. Satchwell, Str. 1218. where it was determined, that the defendant might be taken in execution by virtue of a ca. sa. under a wrong name; for there the party had appeared in the original action, and done an act to avow that he was sued by the right name. See Price v. Harwood, 3 Campb. 108. and ante, p. 918. meanor is not any justification for giving him in charge to a constable without a justice's warrantm; and there is not any distinction in this respect between one kind of misdemeanor and another, as breach of the peace and fraud. Where a warrant is directed to a constable in his official character, without naming him, as, "To the constable of the parish of W.", the warrant ought to be executed" within the limits of the district for which he is constable. If a warrant be directed to a constable by name, commanding him to execute it, though he is not compellable to go out of his own precinct, yet he may if he will, and shall be justified by the warrant for so doing; but if the warrant be directed to all constables, &c. generally, it shall be taken respectively, and no constable can execute the same out of his precinct. Where a constable, authorized by a warrant to seize certain articles suspected to have been stolen, took away others also, not specified, nor likely to furnish evidence as to the identity of others; it was holden P, that he was not protected. It is lawful for a private person to do any thing to prevent the perpetration of a felony. Hence the imprisonment of a husband by a private person, to prevent him committing murder on his wife is justifiable. So if two persons are fighting, and there is reason to fear, that one of them will be killed by the other, it is lawful to part them and imprison them, until their anger is cooled. A justice of the peace may commit a feme covert who is a material witness, upon a charge of felony brought before him, and who refuses to appear at the sessions to give evidence or to find sureties for her appearances. A justice of peace cannot, for a contempt of himself in his office, committ for punishment unless by warrant in writing. In general, where an affray takes place in the presence of a constable", he may keep the parties in custody until the affair is over, or he may carry them immediately before a magistrate. But to justify a constable in apprehending a party without a warrant for an affray, it is essential that the party should have been engaged in the affray, and that the constable should have had view of the affray, while the party was so engaged in it, and that the m Fox v. Gaunt, 3 B. & Ad. 798. o Per Holt, C. J. in case of the village p Crozier v. Cundy, 6 B. and C. 232. q Handcock v. Baker, 2 Bos. and Pul. 260. r 2 Roll's Abr. 559. (E.) pl. 3. s Bennet v. Watson, 3 M. and S. 1. u Churchill v. Matthews, Nutt,and x Cook v. Nethercote, 6 C. & P. 741. Alderson, B. affray was still continuing at the time of the apprehension. A constable may justify under the general issue, although he acted without a warrant, provided there were a reasonable charge of felony made; although he afterwards discharges the prisoner without taking him before a magistrate; and although it should eventually appear that no felony was committed. But a private individual who makes the charge and puts the constable in motion, cannot justify under the general issue; he must plead the special circumstances, by way of justification, in order that it may be seen whether his suspicions were reasonable. If a plea of justification consist of two facts, each of which would, when separately pleaded, amount to a good defence, it will sufficiently support the justification if one of these facts be found by the jury. Hence, where to an action for false imprisonment against a sheriff, he pleaded that, at the time when the trespass was committed, the defendant was sheriff of the county of S., and in that character was presiding at the election of knights of the shire to serve for the county in parliament; and because the plaintiff assaulted the defendant, and made a great noise and disturbance, and obstructed the defendant in the execution of his duty, he ordered a constable to take the plaintiff into custody and carry him before a J. P.; and the jury found that the plaintiff, who was a freeholder, did not assault the defendant, but that all the other facts contained in the plea were proved; it was holden, that that part of the plea, which the jury had found, constituted a good defence; for although the sheriff had not any authority to commit, yet it was his duty to preserve order and decency in the county court. In an action for false imprisonment, if the defendant can take advantage of the statute of limitations, he must plead that he was not guilty within four years. If an action be brought for detaining plaintiff in prison from and defendant plead (as he may) as to part, not guilty within four years, plaintiff may reply, that it was one continued imprisonment, and so oust the defendant of the benefit of the statute. Where a declaration for false imprisonment against A. and B. contained two counts, to both of which the defendants pleaded not guilty, and justified the first under mesne process, A. as the plaintiff in that action, and B. as the bailiff: and the plaintiff, by a new assignment, admitting the ar x M'Cloughan v. Clayton, Holt's N. P. C. 478. Bayley, J. y Spilsbury v. Micklethwaite, 1 Taunt. 146. to z Coventry v. Apsley, Salk. 420. a Atkinson v. Matteson, 2 T. R. 172. |