been committed, is authorized (x) to detain the party suspected, until inquiry can be made by the proper authorities; although it appear afterwards that a felony has not been committed. So watchmen and beadles have authority at common law to arrest, and detain in prison for examination, persons walking in the streets at night, whom there is reasonable ground to suspect of felony, although there is no proof of a felony having been committed (y). But when a private person apprehends another on suspicion of felony, he does it at his peril, and is liable to an action, unless he can establish in proof that the party has actually been guilty of a felony (2). Proof of mere suspicion will not bar the action, although it may be given in evidence in mitigation of damages (a). Where to an action of trespass for false imprisonment, the defendant pleaded by way of justification, that the plaintiff had committed a felony, and at the trial the plea was abandoned, and the plaintiff exonerated from the charge: it was holden, that this was such a persisting in the charge contained in it, as could be taken into account by the jury in estimating the damage (b). A plea justifying an arrest by a private person, on suspicion of felony, must show the circumstances, from which the court may judge whether the suspicion were reasonable (c). Suspicion that a person has on a former occasion committed a misdemeanor is not any justification for giving him in charge to a constable without a justice's warrant (d); and there is not any distinction in this respect between one kind of misdemeanor and another, as breach of the peace and fraud. Where a warrant is directed to a constable in his official character, without naming him, as, "To the constable of the parish of W.," the warrant ought to be executed (e) within the limits of the district for which he is constable. If a warrant be directed to a constable by name, commanding him to execute it (ƒ), though he is not compellable to go out of his own precinct, yet he may if he will, and shall be justified by the warrant for so doing; but if the warrant be directed to all constables, &c. generally, it shall be taken respectively, and no constable can execute the same out of his precinct. Where a constable, authorized by a warrant to seize certain articles suspected to have been stolen, took away others also, not specified, nor likely to furnish evidence as to the identity of others; it was holden (g), that he was not protected. It is lawful for a private person to do anything to prevent the

Booth, 3 Nev. & Man. 316.

(d) Fox v. Gaunt, 3 B. & Ad. 798. See Mathews v. Biddulph, 3 M. & Gr. 390; 4 Scott's N. R. 54.

(e) R. v. Weir, B. R. Sittings after H. 3 & 4 Geo. IV., per three justices, absente C. J., 1 B. & C. 288; and see Gladwell v. Blake, 5 Tyrwh. 186; 1 Cr. M. & R. 636. (f) Per Holt, C. J., in case of The Village of Chorley, Salk. 175.

(g) Crozier v. Cundey, 6 B. & C. 232.

perpetration of a felony. Hence, the imprisonment of a husband by a private person, to prevent him committing murder on his wife is justifiable (h). So if two persons are fighting, and there is reason to fear that one of them will be killed by the other, it is lawful to part them and imprison them, until their anger is cooled (i). So, too, when their affray has ceased, any one may justify imprisoning them, so long as they show a disposition to renew it (k). A justice of the peace may commit a feme covert who is a material witness, upon a charge of felony brought before him, and who refuses to appear at the sessions to give evidence or to find sureties for her appearance (1). A justice of the peace cannot, for a contempt of himself in his office, commit (m) for punishment unless by warrant in writing. In general, where an affray takes place in the presence of a constable (n), he may keep the parties in custody until the affair is over, or he may carry them immediately before a magistrate. But to justify a constable in apprehending a party without a warrant for an affray, it is essential that the party should have been engaged in the affray, and that the constable should have had view (o) of the affray, while the party was so engaged in it, and that the affray was still continuing at the time of the apprehension. A constable may justify under the general issue, although he acted without a warrant, provided there were a reasonable charge of felony made; although he afterwards discharges the prisoner without taking him before a magistrate; and although it should eventually appear that no felony was committed. But a private individual who makes the charge and puts the constable in motion, cannot justify under the general issue; he must plead the special circumstances, by way of justification, in order that it may be seen whether his suspicions were reasonable (p). If a plea of justification consist of two facts (q), each of which would, when separately pleaded, amount to a good defence, it will sufficiently support the justification if one of these facts be found by the jury. Hence, where, to an action for false imprisonment against a sheriff, he pleaded that, at the time when the trespass was committed, the defendant was sheriff of the county of S., and in that character was presiding at the election of knights of the shire to serve for the county in parliament; and because the plaintiff assaulted the defendant, and made a great noise and disturbance, and obstructed the defendant in the execution of his duty, he ordered a constable

(h) Handcock v. Baker, 2 Bos. and Pul. 260.

(i) 2 Roll. Abr. 559, (E.) pl. 3. (k) Timothy v. Simpson, 5 Tyrwh. 251; 1 Cr. M. & R. 757. See Grant v. Moser, 5 M. & Gr. 123; 6 Scott, N. R. 46.

(1) Bennet v. Watson, 3 M. & S. 1. See Evans v. Rees, 12 A. & E. 55; 4 P. & D. 32.

(m) Mayhew v. Locke, 2 Marsh. R. 377; 7 Taunt. 63, S. C.

(n) Churchill v. Matthews, Nutt, and Hill, Somerset Summ. Ass. 1808, Bayley, J.

(0) Cook v. Nethercote, 6 C. & P. 741, Alderson, B.; Baynes v. Brewster, 2 Q. B. 375; 1 G. & D. 669. See also Timothy v. Simpson, 1 C. M. R. 757; 5 Tyrwh. 244, and supra.

(p) M Cloughan v. Clayton, Holt's N. P. C. 478, Bayley, J.

(q) Spilsbury v. Micklethwaite, 1 Taunt. 146.

to take the plaintiff into custody and carry him before a J. P.; and the jury found that the plaintiff, who was a freeholder, did not assault the defendant, but that all the other facts contained in the plea were proved; it was holden, that that part of the plea, which the jury had found, constituted a good defence; for although the sheriff had not any authority to commit, yet it was his duty to preserve order and decency in the county court.

to

In an action for false imprisonment, if the defendant can take advantage of the statute of limitations, he must plead that he was not guilty within four years. If an action be brought for detaining plaintiff in prison (r) from and defendant plead (as he may) as to part, not guilty within four years, plaintiff may reply, that it was one continued imprisonment, and so oust the defendant of the benefit of the statute. Where a declaration for false imprisonment against A. and B. contained two counts (s) to both of which the defendants pleaded Not Guilty, and justified the first under mesne process, A. as the plaintiff in that action, and B. as the bailiff; and the plaintiff, by a new assignment, admitting the arrest to be lawful, replied that B., with the consent of A., voluntarily released him, and that they afterwards imprisoned him for the time mentioned in the first count; the plaintiff having failed in proving the new assignment, by not showing the consent of A.: it was holden, that he should not be permitted to prove the same trespass against B. under the other count.

Costs. If the damages are less than 40s. the plaintiff is not entitled to recover costs, unless the judge immediately after trial certify that the trespass or grievance was wilful and malicious. See stat. 3 & 4 Vict. c. 24, s. 2, ante, p. 38.

(r) Coventry v. Apsley, Salk. 420.

(8) Atkinson v. Matteson, 2 T. R. 172.

CHAPTER XXV.

INSURANCE.

I. Of Insurance in general, p. 938.

II. Of Marine Insurance, p. 939; The Policy, p. 939; Different Kinds, p. 940; Requisites, p. 941; Rule of Construction, p. 955.

Who may

be

III. What Persons may be Insured, p. 956; Who

Insurers, p. 957; What may be Insured, p. 957.

IV. Of Losses.

1. By Perils of the Sea, p. 961.

2. By Capture, p. 963.

3. By Arrests, p. 965, and herein of the Effect of an Embargo

on the Contract of Insurance, p. 966.

4. By Barratry, p. 967.

5. By Fire, p. 970.

6. By other Losses, p. 971.

V. Of Total Losses and of Abandonment, p. 972.

VI. Of Partial Losses, p. 983.

VII. Of Adjustment, p. 986.

VIII. Of the Remedy by Action for Breach of the Contract of Insurance, and herein of the Declaration, p. 987; Pleadings, p. 990; Consolidation Rule, p. 991.

IX. Of the several Grounds of Defence on which the Insurer may Insist;

1. Alien Enemy, p. 992.

2. Illegal Voyage or Illegal Commerce, p. 992.

3. Misrepresentation, Concealment, and Suppression, p. 997.

4. Breach of Warranty, p. 1001.

Express

1. Time of Sailing, p. 1001.

2. Safety of a Ship at a particular Time,
p. 1003.

3. To depart with Convoy, p. 1004.
4. Neutral Property, p. 1006.

Implied {2. Seaworthiness, p. 1016.

1. Not to deviate, p. 1011.

5. Re-assurance, p. 1019.

6. Wager Policy, p. 1020.

X. Evidence, 1022; Damages, p. 1028.

XI. Premium, Return of, p. 1028.

XII. Of Bottomry and Respondentia, p. 1034.

XIII. Insurance upon Lives, p. 1036.

XIV. Insurance against Fire, p. 1040.

I. Of Insurance in general.

INSURANCE is an agreement whereby one party, in consideration of a sum of money, either given or contracted for, undertakes to pay to the other party a certain sum of money upon the happening of some event. A policy of insurance is the instrument in which the terms of this agreement are set forth. To this instrument the insurer having subscribed his name, and, in the case of marine insurances, the sum which he undertakes to pay in case the contingency happens, is termed the insurer or underwriter. The sum of money, received by the insurer as a consideration for his undertaking, is termed the premium; and the party protected by the insurance, the insured or assured. The subject-matter of insurance is as various as the different species of property, and the different risks to which they may be exposed. In some cases, however, a contract of insurance may be void, as being against the policy of the common law; in other cases, as being contrary to the express provisions of a statute (1). These are the only limits to the subject of insurance.

(1) The interference of the legislature has frequently been deemed necessary to provide against the mischiefs arising from insurances calculated merely to excite and encourage a spirit of gaming, and thereby to subvert the morals and impair the industrious habits of the people. See the stat. 9 Ann. c. 6, s. 57, whereby a penalty is imposed on persons setting up offices for making assurances on marriages, births, christenings, and service. See also stat. 27 Geo. III. c. 1, against fraudulent insurances upon lottery tickets.