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1863.

JORDAN

GIBBON,

quieted the wife and the household of the said Clark, in the peaceable and quiet enjoyment of the said parts of the house, and the defendant in the peaceable enjoyment of the part thereof which be possessed; in breach of the peace, &c.

Whereupon the wife of the said Clark (who was then absent), and the defendant, at her request, requested the plaintiff to cease such disturbance, which the plaintiff then wholly refused to do, and still continued in the said parts of the house, making such disturbance, in breach of the peace, and endangering the peace, and putting the said wife in bodily fear (a), whereupon the defendant, during the continuance of the said disorderly conduct and breach of the peace, and while the plaintiff was so endangering the peace, requested the policeman to take the plaintiff into his custody, to be dealt with according to law for his said misconduct, and the policeman did take the plaintiff into his custody to deal with him according to law ; that is, for the purpose of taking him before a justice of the peace to be dealt with according to law (6).

And because it was then still the night, and there was then no justice before whom the plaintiff could be taken, the policeman, in pursuance of the defendant's said request, took the plaintiff to the said police-station, there to detain him in custody until he could be taken before such justice for the purpose aforesaid, the said police-station being a fit and proper place to be so used; and, before the time when the plaintiff could have been so taken before such justice as aforesaid, the plaintiff having ceased to be disorderly, was, with his own consent, and at his request, suffered by the said policeman to go at large, the defendant, with the plaintiff's consent, then ceasing further to prosecute the said charge, until when the policeman imprisoned the

(a) There was no evidence of 260) and there was no evidence of any intention at assault, but only any blow, or any threat of a blow, or of a mere casual unintentional push any attempt to break into the room. in trying to get up stairs (vide (6) That is, to find security to Coward v. Baddeley, 28 L. J., Ex. keep the peace.

1863.

plaintiff at the said station for the purpose aforesaid, which are the supposed trespasses, &c.(a). Issue.

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GIBBON

(a) Supposing there was an officer. Held, on demurrer, good, affray, or an immediate danger of a as sufficiently showing matter. breach of the peace, as there was in amounting to a breach of the peace the case where the plaintiff per by the plaintiff; Webster v. Watts, sisted in remaining unlawfully in a 17 L. J. 73, Q. B.; 12 Jur. 343. shop where he had already assaulted The mere presence in the house, the defendant, the person might de- however, would per se be only a liver him to a constable to imprison trespass, and there was no evidence him until he should find surety to of an assault or threat of an assault, keep the peace, and might take him or endeavour to break in a room. before a magistrate for that purpose. Vide R. v. Mabel, 9 C. & P. 474; See the judgment of Parke, B., In re Dunn, 12 A. & E. 599. Of

Timothy v. Simpson, 1 C. M. & R. course it was always clear law that
761, and the authorities there cited. the owner of a house, or any one in
A private person, however, is not aid of the owner, might justify turn-
justified in arresting, or giving in ing another out of the house wrong-
charge of a policeman with fully in it and refusing to leave upon
out a warrant, a party who has request. But the giving into charge
been engaged even in an affray, would require something further,
unless the affray is still continuing, and an imminent danger of an ac-
or there is reasonable ground for tual, not a mere constructive, breach
apprehending that he intends to re- of the peace, that is, of an assault
new it; Price v. Seeley, 10 Cl. & or violence to the person, which of
Fin. 28. To trespass for assault course would require an intention,
and imprisonment the defendant indicated by threat, or by a precedent
pleaded that he was possessed of a act, with evidence of present and
tavern or alehouse, and the plaintiff persistent intention to do violence.
conducted himself in a rude and And it has been held that a mere
quarrelsome manner in it, and as- disturbance will not, at common
saulted the defendant and others, law, justify in giving into custody.
and afterwards remained standing Thus where A. went to the house of
in the street near the door of the B. to demand a debt, which B. said
house, using loud, menacing and he could not pay; angry words
disgusting language to the defend- passed, and B. told A. to leave his
ant and his family, who was within house; this A. refused to do, unless
bearing, and by reason thereof he was paid. Upon this B. sent
many persons congregated about for a police officer, and had A.
the house and made a riot and dis- locked up in the watch house :-
turbance; and the plaintiff was Held, that if A. was making a dis-
causing persons to congregate in turbance, B. would have been jus-
breach of the peace, whereupon the tified in turning him out of his
defendant, after requesting him to house, but that he was not justified
go, gave him in charge to a police in imprisoning him; Green v.

1863

JORDAN

Parry, Serit., and Montague Williams for the plaintiff.
Karslake for the defendant.

The plaintiff had separated from his wife, and she was lodging on the second floor of a house; on the third floor of which the defendant also was lodging. On the night in question, after twelve o'clock, the plaintiff, who had been watching, in the street opposite the house, saw his wife and one Boucicault go in. He knocked at the door and she came to open it, and it appeared that she must have let herself and Boucicault in by a latch key, as the landlady and servants had gone to bed. The plaintiff asked his wife if Boucicault was in, and she said he was, on which he rushed up stairs to search for him. The landlady aroused by the noise came out, and objected to the plaintiff disturbing her lodgers, and begged him to confine himself to his wife's rooms. While they were having an altercation on the staircase the defendant came in from bis club, and the landlady asked him to interpose and put a stop to the disturbance, and he did so, and desired the plaintiff to go into his wife's rooms or leave the house. The plaintiff declared he would not leave until he found the man he was looking for, (that he might identify him,) and that he would search the house; and while they were all talking on the staircase he pushed by them, knocking against both the defendant and the landlady, but not striking any one nor committing any wilful assault, and he and she went up to the third floor. The defendant declared he should not search his room, but the plaintiff went into his sitting-room and tried the door of the bed-room, which had two doors, one enter

GIBBON

Bartram, 1 C. & P. 308—Tenterden, C. J. So see a similar plea, that the plaintiff had been making a disturbance, and that defendant overtook him near the dwelling-house, whereupon the defendant, in order to preserve the peace, and prevent the plaintiff from continuing the

disturbance, gave him in charge of the constable, &c. :-Held, vous bad non obstante veredicto, as it did not show either that the breach of the peace continuing, or show any certain facts from which the renewal of the breach was to be apprehended ; Baynes v. Brewster, 6 Jur. 392.

1863.

JORDAN

GIBBON.

ing from the sitting-room and the other from the staircase, and both were found fastened on the inside, and it appeared that Boucicault in the course of the altercation had locked himself in there. The plaintiff did not do more than try to open the doors, and did not actually attempt to force the inner door while he stood waiting. The landlady desired him to leave the place. This the plaintiff refused to do, and declared he would wait on the landing all night. But he at no time threatened to break open the door or to strike Boucicault when he came out. The defendant then, at the request of the landlady, sent for a policeman, and desired him to remove the plaintiff. This the policeman refused to do because his wife was in the house; and he desired that some one should make a distinct charge. This the defendant said he would do (a) if the plaintiff was taken to the station, and it was taken that he then gave the plaintiff into custody. The policeman thereupon said he must go, and they all three accordingly went; and the defendant stated the facts to the inspector, and charged the plaintiff with making a disturbance. The police inspector refused to take the charge and the plaintiff was dismissed ; it having transpired, in the mean time, that Boucicault had left the house.

The plaintiff gave evidence to show that he had good reason to suspect his wife of adultery with Boucicault.

On the other hand, the defendant denied all knowledge either of her or of Boucicault.

At the close of the case,

COCKBURN, C. J. (to the jury).- The plaintiff, no doubt, had good reason to suspect his wife of adultery with Boucicault, and to believe that he was in the house. But that gave him no right to be in the house, at all events, anywhere but in his wife's rooms (6) against her will. The

(a) At common law a constable may and ought to take a person into custody to prevent a breach of

the peace still continuing.

(6) Vide ante, pp. 600, 610, in notis.

1863.

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circumstances might excuse him, so as to mitigate damages in an action of trespass by her against him, but would afford no justification. The same law holds in the present case in which he is seeking to recover damages for being expelled, by her orders. She might, after requesting him to withdraw, have removed him by force with the assistance of the defendant, and the defendant might have removed him by her desire. The policeman misunderstood his duty, and was bound to remove him by force when desired so to do. The presence of the plaintiff's wife made no difference (a), for he was not in her room, where he was,

(a) It would make no difference that the object and declared puras to the owner of the house, that pose of the wife was to escape from the plaintiff's wife was wrongfully her husband and to live apart from there, as to his right to be even in him, as she had previously done for her rooins against her will so as to four years, this Court will restore create a disturbance. For though her to her husband, though there is a husband may to some extent re- no reason, from her past conduct, strain his wife's liberty, so as to to apprehend that she will avail confine her within his own house, herself of her absence from his to prevent her leaving for purposes control, to injure either his honour of vice, he cannot, when she has or his property. In re Cochrane, (especially with his consent) left 8 Dowl. P. C. 630; 4 Jur. 534his house and is residing in B. C. another, justify attempting to re- The husband has, by the comtake her, or recover his custody mon law of England, a right to the of her by force. His remedy to custody and control of his wife; enforce her return to his residence she is under his guardianship, and is a suit in the Matrimonial Court. he is entitled to prevent her from His remedy, if any, to recover her indiscriminate intercourse with the custody, is a writ of habeas corpus, world by enforcing cohabitation which will not be issued unless she and a common residence; therefore is forcibly detained by some one when a wife appears at masked else ; and, as she is an adult, the balls, unprotected by the presence, Court will not against her will and without the permission of her restore her to her husband's custody. husband, he has a right to restrain The wife may even obtain a writ of her from the power to frequent habeas corpus against the husband. such places. 16. Thus, where it appeared from the A husband, in order to prevent return made by the husband, to a his wife eloping, with a view to live writ of habeas corpus, that the apart from him against bis will, restraint on the wife's person arose may legally confine her in his own from her own breach of duty; and dwelling, and deprive her of her

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