maintainable; the process being absolutely void.1 Again: The defendant, a justice of the peace, procures the arrest of the plaintiff upon four convictions before him of baking bread on one and the same Sunday; the law permitting but one conviction in such a case. The defendant is liable for false imprisonment, though the wrongful convictions be not first quashed."

3

In both civil and criminal cases, however, the action is to be distinguished from a suit for malicious prosecution. The process under which an imprisonment was made may have been, as regards the party or parties sued for the tort, either void or voidable; and, in such a case, the action is maintainable without proof of malice, or of want of probable cause, or of the termination of the prosecution. In an action for malicious prosecution, however, it matters not whether the writ was void, voidable or valid; the suit is for an unlawful prosecution, and to make such a case the plaintiff must prove the set of facts just stated.

§ 4. OF ARRESTS WITHOUT WARRANT.

It is not necessary, however, in all cases, that an arrest for an infraction of the law should be made under authority and by command of a warrant. There are occasions on which the utmost promptness of action is required for the attainment of the ends of justice in the apprehen

1 Deyov, Van Valkenburgh, 5 Hill, 242.

2 Crepps v. Durden, 2 Cowp. 640. In this case there was no arrest, but merely a levy on the plaintiff's goods for the amount of the penalty; but the principle would be the same.

8 It will be noticed that to sustain an action against the officer who served the writ, or against the clerk, the writ must have been void on its face; while it is enough in this respect, to sustain an action against the judge or attorney and client, that the writ was only voidable.

sion of law-breakers; and the necessities of society have in such cases furnished a justification for the arrest of offenders without a formal warrant of a court of justice. But the law does not encourage the making of arrests in this manner; on the contrary, in the interest of liberty, it prefers a slower and more deliberate proceeding by warrant, issued upon solemn oath concerning the facts, in all cases in which the administration of justice can thus be efficiently carried out.

The occasions on which arrests without a warrant are considered justifiable upon the above-stated ground are well defined. In the first place, it must be well understood that the right to make such arrests is confined altogether to infractions of the criminal law. In no case can an officer make an arrest in a civil cause without the protection of a warrant. It may be true, as has already been stated, that, in cases of the release of a prisoner arrested on process in a civil action, the officer may retake the party without obtaining a special warrant for this particular purpose; but that is because he has already a warrant, which is still in force. Hence, the officer does make the arrest under a writ; and he must justify his act under that writ.

The first case to be mentioned in which an arrest can be made without a warrant, is when the arrest is made upon the spot, at the time of the breach of the peace. Such a case comes directly within the reason above mentioned, namely, the necessities of society; nor could there be any use of requiring an affidavit and warrant in such a case, even if the delay might not be fatal. The right thus to arrest on the spot applies equally to all breaches of the peace, whether the act be a crime or a misdemeanor.

An arrest without warrant may also be made by an officer of the law, qualified for the making of arrests, upon 'suspicion of felony,' to use a common expression of the

books. The meaning of this is, that if in an action for false imprisonment, without warrant (that is, because without warrant), the officer can show that, though no felony was in fact committed, he had probable cause to suppose that the prisoner had committed such a crime, he has violated no duty to the plaintiff in thus making the arrest. For example: The defendant, a constable, having probable cause to believe that the plaintiff is guilty of the felony of receiving or aiding in the concealment of stolen goods, arrests him without a warrant, and conveys him to jail, where he detains the prisoner until he can make application to a magistrate for a warrant against him as a receiver of stolen goods. The warrant is refused, and the prisoner at once discharged. The defendant is not liable.1

The officer's suspicion must, however, as above intimated, be a reasonable ground to suppose the prisoner guilty of a felony; that is, it must be such a strong suspicion as would justify a man of caution in entertaining a belief of the party's guilt. If the circumstances do not warrant such a belief, even though in fact a felony has been committed, the officer violates his duty to the plaintiff by arresting him without process of court.2 For example: The defendant, a constable, arrests and imprisons the plaintiff, without process, under the following circumstances: The cart of the plaintiff, a butcher, is passing along the highway, when a person, in the habit of attending fairs, stops the cart and says to the officer (defendant), These are my traces, which were stolen at the peace

1 Rohan v. Sawin, 5 Cush. 281.

2 The process would justify the officer in such a case, since the granting of it would be a declaration of the judge that there exists probable cause to believe the party guilty. The term 'probable cause' here, as in the chapter on Malicious Prosecution, is used for 'reasonable and probable cause.'

rejoicing last year.' The defendant asks the plaintiff how he came by the traces. The plaintiff replies that he saw a stranger pick them up in the road, and bought them of him for a shilling; whereupon he is taken into custody, and, on examination before a magistrate, discharged. This does not show probable cause for the arrest, and the defendant is liable.1

In the authority from which this example is taken, the whole case was given to the judges, with power to act as a jury so far as might be necessary for the decision of the question before them. It therefore does not appear from the decision, whether the question of probable cause is to be considered as a question for the judge or for the jury; and the point was expressly left undecided by the judges.

The question has, indeed, been one of some difficulty. In some of the cases it has been tacitly assumed that the jury must determine whether the officer had probable cause for taking the plaintiff into custody; 2 in others, that it is for the court to say whether the facts proved show proper cause.3 The point has, however, been decided in England in accordance with this latter view, though not without expressions of regret; making the rule to conform to that of actions for malicious prosecution.

4

If the analogy furnished by the law of actions for malicious prosecution is to be fully carried out, and it appears reasonable that it should be, it will also be necessary for the officer to show that this reasonable ground for making the arrest consisted of facts within his own possession at the time of the arrest, and that he cannot justify on facts

1 Hogg v. Ward, 3 H. & N. 417; Cases, 244.

2 Beckwith v. Philby, 6 B. & C. 635; Rohan v. Sawin, 5 Cush

281; Brockway v. Crawford, 3 Jones, 433.

8 Hill v. Yates, 8 Taunt. 182; Davis v. Russell, 5 Bing. 354.

4 Lister v. Perryman, L. R. 4 H. L. 521, 531, 538, 539.

Nor, on the other

which afterwards came to his notice. hand, if his justification lie in the facts before him at the time of taking the party into custody, will his defence be overturned by evidence of facts indicating innocence, that came to his notice after the imprisonment,1

2

At common law, no valid arrest without a warrant can' be made for a misdemeanor, except on the spot. To arrest a man, without process, on suspicion that he has committed a misdemeanor, although upon probable cause for his arrest, is a breach of duty. For example: The defendant, a constable, arrests the plaintiff without a writ on the statement of J. M., that the plaintiff has committed the offence of perjury, by wilfully and corruptly making a false affidavit in a judicial proceeding before the Honorable W. W., judge of a court, and he takes the plaintiff into custody upon this charge, at the direction of J. M. He is liable to the plaintiff for a false imprisonment; 8 though he would not have been, had the offence charged been a felony.

And the arrest must not only have been made upon the spot; it must also have been made, in the case of an actual breach of the peace, before the breach has entirely ceased. For example: The defendant, a constable, takes the plaintiff into custody without a warrant under the following circumstances: The plaintiff had been making a disturbance about certain premises in the night-time, and had refused, on request of the defendant, to desist. Perceiving that the defendant intends to arrest him, the plaintiff flees and is pursued, overtaken, and arrested; the

1 See ante, pp. 90, et seq.

2 Whether and how far this may have been changed in regard to the duties of policemen in large cities cannot here be considered.

3 Bowditch v. Balchin, 5 Ex. 378. See Commonwealth v. Carey, 12 Cush. 246, 252; Commonwealth v. McLaughlin, Id. 615, 618.