Taylor v. Strong , 3 Wend. 384 ( 1829 )

By the Court,

Marcy, J.

It is not pretended that the constable Strong, had any precept which authorized him to make the'arrest in the street, for which this action is brought; but it is attempted to be justified on the ground that Taylor, in resisting the officer when attempting to arrest him on the execution, beating him, ami exciting the affray which took place there, had committed a breach of the peace; and haveing done it in presence of the constable, who is ex officio a conservator of the peace, he had a right, and it was his duty, as a constable, to arrest him without a warrant; and if he had that right, Blanchard, the other defendant, was bound to yield his aid when commanded by the constable. If Strong was justified in what he did, Blanchard is so as a matter of course.

Lord Bacon says, that “ The office of constable was to arrest the parties that had been breaking the peace, or were in a fury ready to break the peace; or was truly informed by others, or by their own confession, that they had freshly broken the peace; which persons he might imprison in the stocks, or in his own house, as his or their quality required, until they had become bounden with sureties to keep the peace.’’ He further observes, that “ Constables could not arrest any, nor make any put in bond, upon complaint of threatening only, except they had seen them break the peace, or had come freshly after the peace was broken.” (4 Bacon’s Works, 84.) Lord Ch. J. Hale also says, “ A constable may ex offi* c¿0 arrest a breaker of the peace in his view, and keep him in his house or in the stocks till he can bring him before a justice of the peace.” (1 Hale’s P. C. 587.) It is also stated by Hawkins, that a constable has authority not only to arrest those whom he shall see actually engaged in an affray, but also to detain them till they find sureties of the peace. (Hawk. P. C. b. 2, ch. 13, s. 8. Also, b. 1, ch. 63, s. 14, 17.) •

It is quite clear, from these authorities, that the power with which the constable is invested is not merely to put an end to the affray, but he is to make the arrest as the means of procuring surety of the offender to keep the peace. To do this, he must be allowed a reasonable time and a fit opportunity. There is room for doubt in this case whether the constable had not delayed too long; but still I cannot say that the charge which the judge proposed to give to the jury was not substantially correct. I am therefore inclined to the opinion that the nonsuit ought not to be set aside.

Motion to set aside nonsuit denied.