cess.

* 534

house, and greatly disturbed and disquieted them in the peace- Imprisonment
able and quiet possession of the said dwelling-house, in breach without fro
of the peace of our said lord the king; whereupon the said
CD then and there requested the said A B to cease his said
noise and disturbance, and to depart from and out of the said
house, which he the said A B then and there wholly refused
to do, and *continued in the said house making the said noise,
disturbance and affray therein, and then and there threatened
the said CD and his family, that he would continue making
his said noise and disturbance in the said house during the
whole night, and hinder and prevent the said CD and his
family from sleeping or enjoying any quiet or repose in the
said house, whereupon the said C D, in order to preserve the
peace, and restore good order and tranquillity in his said house,
then and there gave charge of the said A B to the said E F,
then and there being a constable of the said parish of
and who then and there saw and had view(x) of the said breach
of the peace, so committed by the said A B as aforesaid, and
then and there requested the said E F, so being such constable
as aforesaid, to take the said A B into his custody, and carry
him before some justice or justices of our said lord the king,
assigned to keep the peace in and for the said county of
to answer the premises, and to be dealt with according to law;
and the said E F, so being such constable as aforesaid, at such
request of the said CD, then and there gently laid his hands
on the said A for the cause aforesaid, and did then and there
take the said A B into his custody, and did carry and conduct

(x) In a plea justifying an imprisonment by a constable not under a warrant, it seems necessary in general to aver, that the constable had view of the breach of the peace, for it has been decided that a constable cannot arrest for an affray out of his view without a warrant, except felony is likely to ensue, Cro. Eliz. 375. 2 Esp. Rep. 540. 3 Hawk. P. C. 174. 164. book 2. c. 13. s. 8. 2 Hale's P. C. 14. 1 Esp. Rep. 294. There are precedents, however, omitting such statement, 9 Wentw. 27. 344, 345.

And in a late case where a disturb-
anee had been made in a house late at
night, and the plaintiff would not go
out, but was not guilty of a breach of
the peace within the view of the con-
stable, a very able pleader advised a
special plea, omitting the above state-
ment, considering that a practice con-
trary to the above decisions had so
long prevailed, and was so necessary
for the maintenance of a proper po-
lice, that probably a different deci
sion might now take place.

without pro

cess.

* 535

Imprisonment him the said A B, from and out of the said house in order to carry and convey him before such *justice as aforesaid, to be there dealt with according to law for his said offence and breach of the peace, to wit, at, &c. aforesaid; and because it was then and there late at night, and an unseasonable time for the said E F to carry the said A B before such justice as aforesaid, he the said E F, so being such constable as aforesaid, for that reason and for the cause aforesaid, necessarily and unavoidably imprisoned the said A B, and kept and detained him in a certain prison in the parish aforesaid, called the, until the next morning; and the said C D and E F further say, that on the next morning as soon as conveniently could be, he the said EF, so being such constable as aforesaid, endeavoured to carry and convey the said A B before such justice as aforesaid, to answer the said premises, and to be dealt with according to law, and because no such justice as aforesaid could be found near to the said prison, and because it was then and there expedient and necessary that the said A B should go, proceed and be carried in the said cart before such justice as aforesaid, for the purpose aforesaid, and because the said A B then and there refused to get into such cart for the purpose aforesaid, he the said E F, so being such constable as aforesaid, and the said CD, in his aid and assistance, and at his request, did gently lay their hands upon the said A B, and did then and there gently force and compel the said A B to get into the said cart, and to go and travel therein the said distance in the said declaration mentioned, in order that he the said A B might be carried and conveyed by the said E F, so being such constable as aforesaid, before such justice as aforesaid, to answer the premises, and be there dealt with according to law, for his said offence and breach of the peace. And the said C D and E F further say, that afterwards, and while the said E F, so being such constable as aforesaid, was so carrying and conveying the said A B before such justice as aforesaid, to wit, on, &c. afore said, at, &c. aforesaid, he the said E F, at the special solici tation and request of the said A B, and upon his making a reasonable and proper submission for the said offence, and with *the consent of the said A B, discharged the said A B from and out of his said custody, and then and there permitted him to go at large without carrying him before such justice as

* 136

aforesaid,(y) as they the said C D and E F lawfully might for Imprisonment without prothe cause aforesaid, which are the same supposed trespasses in cess. the introductory part of this plea mentioned, and whereof the said AB hath above thereof complained against the said CD and E F,(z) this, &c. [conclude with a verification, as ante, 422. sixth precedent.]

The like in a

more concise

First plea, general issue, as ante, 519. Second plea, as follows:] And for a further plea in this behalf as to the making form.(a) the said assault upon the said A B, in the said first count of the said declaration mentioned, and imprisoning him and keeping and detaining him in prison for a part of the said time in the said first count mentioned, to wit, for the space of eight hours part of the time in that count mentioned, the said CD, by leave of the court here for this purpose first had and obtained, according to the form of the statute in that case made and provided, says, that the said A B ought not to have or maintain his aforesaid action thereof against him, because he says, that just before the said time, when, &c. in the said first count mentioned, to wit, on the same day and year aforesaid, at, &c. aforesaid, the said AB with force and arms, &c. made an assault upon the said CD, and beat and ill-treated him, and thereupon the said CD, there and then gave charge of the said A B, to a certain peace-officer of our said lord the king, who then and there had view of the said breach of the peace of our said lord the king, so committed by the said A B as aforesaid, and requested the said peace-officer to take the said AB into his custody, and carry him before some justice or justices of our said lord the king assigned to keep the peace in and for the said county of to answer the premises, and to be examined and dealt with according to law; and the said peace-officer, at such request of the said C D, and the said C D, in the aid and assistance of the said peace-officer,

* 537

(y) This statement of defendant's release, is to be according to the fact, quare the sufficiency of the statement, 5 East, 294. 3 Hawk. P. C, 174.

1

(=) It may be necessary in some cases to insert the averment, ante, 550. n. (9).

(a) See the notes to the last precedent:

Imprisonment then and there gently laid their hands upon the said A B, in under process. order to take, and did then and there take the said A 3 into

Justification

of an arrest,
&c. by a she-
riff's officer
and another

in his assist-
ance, under a
latitat against
plaintiff. (b)
* 538

the custody of such peace-officer, and kept and detained him so

in custody until the said A B afterwards, and as soon as conveniently could be, was carried before one of his majesty's justices assigned to keep the peace in and for the said county of, for examination concerning the premises, and to be dealt with according to law, and on that occasion the said A B was necessarily and unavoidably imprisoned, and kept and detained in prison for the said space of time in the introductory part of this plea mentioned, as he lawfully might for the cause aforesaid; which are the same supposed trespasses in the introductory part of this plea mentioned, and whereof the said AB hath above thereof complained against him the said CD. And this, &c. [conclude with a verification, as ante, 422. sixth precedent.]

[First plea, general issue, as ante, 519. Second plea, as follows:] And for a further plea in this behalf as to the making the said assault in the said first count mentioned, and with a little force and violence pushing, forcing, and thrusting(c) the said A B from and out of the said messuage or dwelling-house in the said first count of the said declaration mentioned, into the said street therein also mentioned, and whilst the said AB

(b) See the precedents, 3 Lev. 61.
1 Saund. 296. 298. n. 5. 1 Rich. C. P.
151. 9 Wentw. Index, 98 to 104. 109.
As to the mode of pleading, see 1
Saund. 296. n. 1. 298. n. 1. Com. Dig.
Pleader, 3 M. 24. Ante, vol. 1. Index,
tit. Process; as to the statement of
different process, see ante, 162 to
168. How to plead in an inferior
court, Cowp. 18. 2 T. R. 172. Com.
Dig. Pleader, 3 M. 24. Justification
under a latitat, executed in London
by a serjeant at mace, 9 Wentw. 331.
If the arrest were under a bill of
Middlesex, or a special capias by ori-
ginal, or a capias in C. P. describe
the process as ante, 162 to 168. If
there be any doubt as to the regulari-

ty in issuing the writ, the officer should justify separately, and if the officer have been guilty of any excess, the plaintiff in the original action should also plead separately, 2 Stra. 1184. 1 Salk. 408, 409.

(c) The recital of the trespasses intended to be justified, must depend on the facts of each particular case, When the plea justifies a wounding and actual beating, or more than a molliter manus imposuit to make the arrest, the particular resistance or occasion of such wounding, &c. must be stated in the subsequent part of the plea, as in this precedent, see ante, 529. n. (o), and 1 Saund. 295, n. 1.

538 continued on the ground in the said street, pulling, haling, Imprisonment and dragging him upon his back through the mud and dirt, in uniter process. and along the said street, and for the distance and length of way in the said first count also mentioned, and thereby a little hurting, bruising, and wounding the said A B; and as to the imprisoning the said A B, and keeping and detaining him in prison for the said space of time in the said first count mentioned, and as to the rending, tearing, damaging, and spoiling the clothes and wearing apparel of the said A B in the said second count mentioned, by the said C D and E F above supposed to have been done, the said C D and E F, by leave of the court here for this purpose first had and obtained, according to the form of the statute in such case made and provided, say that the said A B ought to have or maintain his aforesaid action thereof against them, because they say that Issuing of the before the said time, when, &c. in the said first and second latitat. counts mentioned, to wit, on, &c. a certain writ of our lord the now king, commonly called a latitat, was issued(d) out of the court of our said lord the king, before the king himself, the said court then and still being holden at Westminster, in the county of Middlesex,(e) directed to the then sheriff of

next, after

-, by which said writ our said lord the king commanded the said sheriff that he should take the said A B, if he should be found in his bailiwick, and keep him safely, so that he might have his body before our said lord the king at Westminster aforesaid, on to answer to the said E F in a plea of trespass, and also to a bill of the said E F against the said A B, for. upon promises, according to the custom of the said court of our said lord the king, before the king himself to be exhibited, and that the said sheriff should have there then that writ; which said writ was then and there duly indorsed for bail for -. by virtue of an affidavit of the cause

* 539

Indorsed for bail.(f)

(d) See 3 Lev. 63. if the plaintiff in the original action justify alone, the plea may state that he caused it to be issued, &c.

(e) As to this allegation, ante, 162. n. (i). 1 Saund. 300. b. n. 7. (f) See ante, 163. the indorsement for bail should be stated, and it

is usual to refer to the affidavit to hold to bail, 1 Saund. 296. n. 2. 3 T. R. 183. But it is unnecessary to state the particulars of the cause of action even in a justification by the plaintiff' in the original action, and though under process of an inferior court, 3 T. R. 183. Cowp. 18.