the offenders may be apprehended by any constable, headborough, patrol, watchman, or other person, and conveyed before a justice, who may impose a penalty of 40s. sect. 24; and the court of aldermen or two justices are empowered to regulate the route and conduct of persons driving stage carriages, cattle, or animals during the hours of divine service, and persons contravening any such rule may be immediately apprehended without warrant, or a warrant may be issued, id. s. 26. But the most general and important provision is that which enacts, that it shall be lawful for any constable or other person to apprehend such suspected person or reputed thief, as therein mentioned, and carry him before a justice, id. sect. 31. The act then contains powers for each of the Thames police surveyors, and other police and peace officers, to apprehend and detain all persons suspected of being concerned in certain felonies therein mentioned, id. sect. 35, 37. The 31st section authorizing the apprehension of such suspected person would probably be construed to apply only to persons of general bad character, as rogues and vagabonds, and not to authorize an arrest on suspicion only of a particular offence, see Cowles v. Dunbar, supra, n. (s), and the form of conviction in section 32, which supposed the party to be a disorderly person or rogue and vagabond. We here notice the provisions of this act more fully than a local act would in general be considered, because the regulations are expedient to be extended to all large towns in the kingdom." p. 626, to margin add a reference-"see construction in general, Rex v. Ball, 1 Mood. Crown Cases, 330." p. 627, line 6 from top, add-" And in a subsequent case it was held, that under the 9 G. 4, c. 69, s. 2, a keeper, &c. may apprehend poachers, though there are three or more found armed; for though sect. 2 only authorizes apprehending for what are offences under sect. 1, and when there are three or more armed they are punishable under sect. 9, it is nevertheless an offence under sect. 1, though the circumstances of aggravation make it liable to a heinous punishment. And if the keeper, &c. be killed in the attempt to apprehend, the offender will be guilty of murder, though the keeper had previously struck the offender or any of his party, if he struck in self-defence only, and to diminish the violence illegally used against him, and not vindictively to punish, Rex v. Ball, 1 Mood. Crown Cases, 330. And afterwards it was decided, that if a keeper, VOL. I. PART II. Chap. VII. VOL. I. PART II. attempting lawfully to apprehend a poacher, be met with vioChap. VII. lence, and, in opposition to such violence and in self-defence, strike the poacher, and then is killed by the poacher, it will be murder, id. 333." Necessary precaution in exercising the warrant. p. 630, n. (f), add-" The rule is thus:-If there was no warrant nor any felony committed by any one, then trespass lies, 6 T. R. 315; and if a felony had been committed by some one, but not by party apprehended, then he may maintain trespass, unless it can be averred and proved not only that a felony had been committed, but also that there was reasonable ground, and what in particular for suspecting him of the felony, 4 Taunt. 34; ante, 618." p. 631, 1. 24 from top, insert-" In the exercise of the powers given by the common law and statutes to private parpower of appre- ties to apprehend without the warrant of a magistrate, more hension without consideration and caution should be observed than are usually evinced. It is a wholesome maxim in law that no man should be a judge in his own cause, 3 Bla. Com. 298, vide note 17, and Knapp's R. 349; and although that maxim is in strictness applicable only to cases of ultimate decision, yet the principle applies equally to ministerial and preliminary proceedings. A person in self-preservation, or in protecting his own property, is too apt to be incensed and heated against the wrong-doer, and perhaps too hasty in suspecting crime. It is a moral duty at all events not hastily by an erroneous charge of crime to endanger the character and means of another's subsistence. It is safer, therefore, when time will allow, to state the facts upon oath, and consequently with care, to a magistrate, and leave him, who has usually more experience, to determine whether he will issue his warrant. This is suggested as a proper general rule. But there are also legal grounds for preferring that course as safer and better calculated to avoid the liability to an action, for we have seen that if a party be suspected of a crime, and it should turn out that neither he nor any one else had committed any offence, the party apprehending or giving charge, may be liable to an action for the mistaken imprisonment, and which would have been avoided if a warrant had been previously obtained, ante, 630." p. 631, n. (m), add-" and see 5 Burn. J. 985." p. 632, last line, add-" So where a game-keeper or other person lawfully authorized under the act against night poaching, 9 G. 4, c. 69, s. 2, to apprehend persons found offending against that act, appears from the circumstances to have been known to them, he need not give them any express notice, Rex v. Paine and others, 1 Mood. Cr. Ca. 378." p. 632, n. (u), add reference to "Rex v. Woolmer, 1 Mood. Cr. Ca. 334." p. 632, n. (r), add reference to "Rex v. Woolmer, 1 Mood. Cr. Ca. 334." p. 632, n. (s), add reference to "Rex v. Woolmer, 1 Mood. Cr. Ca. 334." p. 634, 1. 2 from top, after "resistance," add-" And the killing a watchman or other legally constituted known officer, who attempts to arrest a man upon the charge of a third person. that the defendant had attempted to rob him, will be murder, although such officer had no warrant, and although it turned out that the defendant had done nothing for which he was liable to be arrested, if the officer had a charge against him for a felony, and the defendant knew that the individual was an officer, although the latter did not notify to him that he had such a charge, Rex v. Woolmer, 1 Mood. Cr. Ca. 334. Nine judges in affirmative, three contrâ.” p. 634, n. (ƒ), add reference to "Rex v. Hood, 1 Mood. Cr. Ca. 281." p. 635, line 16 from top, after "resisted," add-" taking care to do no more than resist, and not personally injuring the officer." p. 635, n. (r), add reference to "Rex v. Hood, I Mood. Cr. Ca. 281." p. 636, n. (t), add reference to "Rex v. Hood, 1 Mood. Cr. Ca. 281." p. 636, n. (y), add reference to "Rex v. Hood, 1 Mood. Cr. Ca. 281." p. 637, 1. 9 from bottom, at "Crime," add reference to VOL. I. PART II. Chap. VII. VOL. I. PART II. Chap. VII. 2. Recaptures of personal property. Stopping in transitu. "Rex v. Woolmer and another, 1 Mood. Cr. Ca. 334, ante, 634." p. 641. The owner of personal property may retake the same with force from a person wrongfully refusing to deliver the same up; Wisdom v. Hodson, 3 Tyrw. Rep. 816. p. 645. Coates v. Railton, G. H., April, 1827, before Abbott, C. J.; Scarlett, Pollock, and Chitty, for plaintiffs. The firm of Butlers, Krus & Co. of Lisbon, wrote to Butiers, Brothers, in London, desiring them to purchase and consign certain goods to them in Lisbon. Butlers, Brothers, are partners in Lisbon firm, and they write to defendants, who are warehousemen and commission agents at Manchester, desiring them to purchase the goods and forward them to Lisbon, to Butlers, Krus & Co. The defendants purchase the goods of plaintiffs, who are manufacturers at Manchester, and inform them the goods are to be delivered at defendants' warehouse, in order that they may calender and pack and send them to Lisbon, and request plaintiffs to draw a bill on Butlers, Brothers, of London, at three months. Plaintiffs, on 1st April, 1826, send the goods to defendants' warehouse, and draw bill on Butler & Co. and send same to London. On 2nd April, Butlers, Brothers, stop payment, and refuse to accept the bill; whereupon plaintiffs demand the goods of defendants, who refuse to deliver them, saying they keep them for the creditors of Butlers, Brothers. Plaintiffs tender a sum to cover expense of calendering and packing, and warehouse room, and bring trover: Denman and Park contend that as defendants bought as agents, and received the goods not merely to pack, but to calender and consign, the stoppage in transitu was at an end. Abbott, C. J., was clearly of opinion that the union of the character of agent, calenderer, and packer, made no difference, and that plaintiffs were entitled to recover. See a short report, 3 Chitty's Commercial Law, 645, in note. Knight v. Harrison, sittings after Michaelmas term, 1823, before Abbott, C. J.; Scarlett for plaintiff.-It was decided that the delivery of goods to an agent on account of his principal does not give the agent such a right of lien as would prevent the principal and consignor from agreeing to rescind the contract; and the consignor, in an action of trover against agent, recovered 8201. the value of the goods. See short report, 3 Chitty's Commercial Law, 645. So in all cases where the goods are not in a deliverable state, VOL. I. PART II. and further acts are necessary to be done by the seller to make them so, as if the goods are to be separated from a mass, they Chap. VII. may be stopped in transitu, 4 Taunt. 464; 5 Id. 177. When right to stop goods in transit is divested by vendors dis Although a factor could not formerly pledge goods delivered to him to sell, yet if the purchaser of goods, having received the bill of lading, pledged it bonâ fide to a third person as a security for money advanced, the vendor's right of stoppage posing of the in transitu was determined; and although the money advanced property to third persons. might not be equal to the value of the goods, yet the pawnee, holding the bill of lading, might, in an action of trover against the vendor, who had attempted to stop the goods in transitu, recover their full value, Gainsford v. Scovells, Kingston Spring assizes, 1823, coram Richards, C. B., Wilks, jun. attorney for defendant. And it has even been held that where the vendor of the goods detained the bill of lading on account of the same relating to more goods than those sold, but delivered to the vendee a written undertaking to deliver the goods on arrival to the vendee, who thereupon accepted bills for the price, and the vendee before the arrival sold the goods to a third person, and delivered the undertaking to him, and became insolvent before the arrival of the goods, it was held that such third person was entitled to recover the value of the goods from the vendor who had stopped them as in transitu. Ibid. p. 645, 1. 18 from top, after "residue," add-" So the taking a bill or note, and which is still outstanding in the hands of a third person, will preclude the vendor from insisting on his lien, Bunney v. Poyntz, 1 Nev. & Man. 229." p. 645, n. (p), add reference to "ante, 130, 131." p. 646, 1. 23 from top, after "resorted to," add-" A party having only the equitable interest in land, and not the legal, should not, pending his suit in equity to establish it, take possession in an improper manner, by turning out a party, also beneficially entitled, in a forcible manner; for in that case a Court of Equity would not assist him or interfere by injunction to stay proceedings against him at law in the name of the legal owner by ejectment, Grafton v. Griffin, 1 Russ. & M. 336." p. 647, n. (ƒ), add reference to "Maugham on Laws of Literary Property, 97, 98." |