the servant upstairs. They saw the plaintiff, and the policeman asked the defendant if that was the person. He said, yes, it was, and then charged her with stealing the feathers out of the bed in his house while she was lodging there. The policeman told her that she must go with him to the station-house. She at first objected, but afterwards went, and the defendant made his charge to the inspector, and she was locked up in a cell, where she remained till between ten and eleven the next morning. . . . After the plaintiff had been locked up, the policeman went back with the defendant's wife to the plaintiff's lodgings, but nothing belonging to the defendant was found there. The plaintiff was taken on the next day before Mr. Trail, at Union Hall, who discharged her. The defendant wished him to remand her, but he would not. Stammers, for the defendant. The plaintiff has been charged with felony upon just ground of suspicion. The defendant undertakes to prove, not that she actually committed the offence, but that she was arrested under such circumstances of suspicion as justified the examination before the magistrate. ... Wilde, Serjeant, in reply. . . . If the defendant had any bona fide charge of felony, would he not have applied for a warrant? But he knew he could not get a warrant, and his object was to gratify his malice, and so he went at night and took her from her own house and lodged her in the station-house. TINDAL, C. J., after stating the complaint in the declaration and the defendant's answer to it, said—That is an answer which it is incumbent on him to make out to your satisfaction, because he has taken the law into his own hands by not acting as any prudent person would have done, viz., going before a magistrate and taking out a warrant. At all events, the defendant acted in a very indiscreet manner (as there was no reason to conclude that the plaintiff had any intention to abscond) in not taking the usual and cautious step of having the case investigated by a magistrate before imprisoning the party. The only two points upon which you must be satisfied before you can find a verdict for the defendant, are, 1st, that a felony had actually been committed; that some person or other had stolen, according to the evidence, about half the feathers from the bed; and 2d, that the circumstances were such, that you yourselves, or any reasonable person, acting without passion and prejudice, would have fairly suspected the plaintiff of being the person who did it. If you think the circumstances. were such, you will find your verdict for the defendant; if you do not, you will find your verdict for the plaintiff, and give her such reasonable damages as you think she is entitled to. Verdict for the plaintiff — Damages, 51. 964. SIR JAMES STEPHEN. History of the Criminal Law of England. (1883. vol. I, c. VII, p. 165.) Apprehension of offenders. . . . The foundation of the whole system of criminal procedure was the prerogative of keeping the peace, which is as old as the monarchy itself, and which was, as it still is, embodied in the expression, "The King's Peace," the legal name of the normal state of society. . . . In an earlier chapter I have given some illustrations [of the hue and cry and] of the manner in which all sorts of criminals, and especially all thieves, were regarded in very early times as enemies to be put to death almost like wild animals. It would not be worth while to trace minutely the steps by which this general and crude view of the subject was gradually reduced to the shape in which it now stands. . . . Hale's Pleas of the Crown which is still the leading authority as to the general principle of the subject, though subsequent decisions and enactments have to some extent modified Hale's conclusions. The result of his inquiry may be thus stated: (1) Any person may arrest a person who is actually committing or has actually committed any felony. (2) Any person may arrest a person whom he suspects on reasonable grounds to have committed any felony, if a felony has actually been committed. (3) A constable may arrest a person whom he suspects on reasonable grounds of having committed any felony, whether in fact any such felony has been committed or not. (4) The common law did not authorize (without a warrant) the arrest of persons guilty or suspected of misdemeanors, except in cases of an actual breach either by an affray or by violence to an individual. In such case the arrest had to be made not so much for the purpose of bringing the offender to justice as in order to preserve the peace, and the right to arrest was accordingly limited to cases in which the person to be arrested was taken in the fact or immediately after its commission. 965. WAKELEY v. HART. (1814. 6 Binn. 315, 318.) TILGHMAN, C. J. . . It is nowhere said, that there shall be no arrest without warrant. To have said so would have endangered the safety of society. The felon who is seen to commit murder or robbery, must be arrested on the spot or suffered to escape. So although not seen, yet if known to have committed a felony, and pursued with or without warrant, he may be arrested by any person. And even when there is only probable cause of suspicion, a private person may without warrant at his peril make an arrest. I say at his peril, for nothing short of proving the felony will justify the arrest. These are principles of the common law, essential to the welfare of society, and not intended to be altered or impaired by the Constitution. 966. BURNS v. EDEN. (1869. 40 N. Y. 463, 469.) WOODRUFF, J. . . . The justification of an arrest by a private person was made in Allen v. Wright [supra, No. 963)], to depend on, first, the fact that a felony had been actually committed; and second, that the circumstances were such that a reasonable person, acting without passion and prejudice, would have fairly suspected the plaintiff of being the person who did it. These principles are affirmed in this State in Mix v. Clute (3 Wend. 350), in very distinct terms. "If a felony has been committed by the person arrested, the arrest may be justified by any person without warrant. If an innocent person is arrested upon suspicion by a private individual such individual is excused if a felony was in fact committed, and there was reasonable ground to suspect the person arrested. But if no felony was committed by any one, and a private individual arrest without warrant, such arrest is illegal, though an officer would be justified if he acted upon information from another which he had reason to believe." 967. PALMER v. MAINE CENTRAL RAILROAD COMPANY SUPREME JUDICIAL COURT OF MAINE. 1899 92 Me. 125, 42 Atl. 800 EXCEPTIONS from Superior Court, Cumberland county. Trespass by Jonathan P. Palmer against the Maine Central Railroad Company for false imprisonment. The plea was the general issue, with a brief statement justifying the imprisonment, on the ground of lawful arrest of plaintiff for fraudulently evading the payment of his fare as a passenger on one of defendant's trains. There was a verdict for plaintiff, and defendant alleges exceptions, and moves for a new trial. Exceptions overruled, and motion overruled on condition of remittitur.... Argued before PETERS, C. J., and EMERY, HASKELL, STROUT, and SAVAGE, JJ. J. E. Hanly, J. F. Libby, Levi Turner, and T. J. Boynton, for plaintiff. J. H. & J. H. Drummond, Jr., for defendant. SAVAGE, J. Trespass for false imprisonment. The verdict was for the plaintiff for $550. The case comes up on exceptions by the defendant, and on motion to set aside the verdict, on the ground that it was against law, and against the weight of evidence, and that the damages are excessive. Substantially the same legal propositions are presented under the motion as under the exceptions. It will be more convenient to consider the motion first, for the conclusion which we think must be reached under the motion will necessarily dispose of the exceptions. There is little dispute as to the essential facts. The questions at issue are chiefly legal ones. In January, 1896, the plaintiff purchased from the defendant, and there was issued to him, a mileage book or ticket with coupons, one to be detached for each mile the purchaser should travel. By the purchase of this book, the plaintiff became entitled to travel 1,000 miles on the defendant's railroad. Upon the ticket was a contract, which was signed by the plaintiff at the time of purchase. This contract discloses that one of the conditions under which the ticket was sold was the following: "That it is good only for the person in whose name it is issued, and, if presented by any other person, the right to any remaining rides to which the purchaser might have been entitled shall be forfeited; and the conductor shall be authorized to take up this ticket, and return the same to the general ticket office as forfeited, and conductors are authorized to obtain the signature of the holder of the ticket for identification." In June, 1896, the plaintiff was a passenger on the defendant's train from Rockland to Brunswick, and, in payment of his fare, tendered to the conductor the mileage ticket above referred to. The conductor was not personally acquainted with the plaintiff, and, for identification, he asked the plaintiff if the name upon the ticket, "Jona. P. Palmer," was his name. The plaintiff refused to say whether it was or not, though he told the conductor that the ticket was his own. The conductor then declined to accept the ticket, and asked the plaintiff to pay a cash fare, which the plaintiff refused to do. As the plaintiff was leaving the train at Brunswick, without further payment or tender of his fare, the conductor caused him to be arrested by a constable, without a warrant, for fraudulently evading the payment of his fare; and this is the arrest complained of. The plaintiff was immediately taken before the Municipal Court of Brunswick, where the conductor made a complaint, under oath, against him, under Rev. St. c. 51, § 78, which provides that whoever "fraudulently evades the payment" of fare over a railroad "by giving a false answer, or by travelling beyond the place to which he has paid, or by leaving a train without paying, forfeits not less than five, nor more than twenty dollars, to be recovered on complaint." The plaintiff pleaded "Not guilty." The plaintiff then paid his fare and the costs of prosecution to the judge of the court. An acknowledgment of "complete satisfaction" was filed by the conductor, and the plaintiff was thereupon discharged without further prosecution. 1. No question is raised but that the conductor was acting within the scope of his authority as a servant of the defendant corporation. The defendant endeavors to justify the arrest. It claims that the conductor had a lawful right to ask the plaintiff, as a means of identification, if the name on the ticket was his name, and that it was the plaintiff's duty to answer truly; and, further, that if the conductor had reasonable cause, from the plaintiff's conduct, to believe that he was fraudulently evading the payment of his fare, and did so believe, the conductor was justified in causing the plaintiff's arrest by an officer, as he was in the act of leaving the train, although the officer had no warrant. The discussion will be simplified somewhat if we state at the outset two propositions, about which, we think, there can be no real controversy: First, the offence for which the plaintiff was arrested was simply a misdemeanor; secondly, the plaintiff was not guilty in fact. It cannot be said, in any view of the case, that the plaintiff fraudulently evaded the payment of his fare. He owned the mileage ticket. He had a right to travel upon it. He tendered it to the conductor. There was no fraudulent evasion of payment. There was on his part only a wilful, unreasonable obstinacy, which arose, perhaps, from a mistaken sense of pride. The precise question to be decided, therefore, is whether a private individual who has procured the arrest of an innocent person for a misdemeanor, by an officer with out a warrant, can justify by showing that he acted in good faith, without malice, and upon a belief of guilt founded upon reasonable grounds. We think the question must be answered in the negative. This is a suit, not for a malicious prosecution, but for a false imprisonment. It is not for a misuse or an abuse of legal process, but for an arrest without legal process. The action must be sustained, unless the defendant can show a legal justification for causing the arrest to be made. The principles which, by the common law, regulate the right to arrest, or cause an arrest, without warrant, have been long settled both in this country and England; and, by these principles, the rights of these parties must be determined. Unless modified by statute, they are recognized by the Courts, almost without exception. They are designed to promote the safety of the public, and the due administration of public justice, on the one hand, and on the other, to afford the citizen security against unwarrantable restraints upon his personal liberty. We shall state these principles somewhat more fully, perhaps, than the particular question under consideration requires; but a full statement is valuable by way of illustration, and for the purpose of showing the clear distinction between the powers of an officer and those of a private individual. ... By the common law, an officer may arrest for felony, without warrant, upon reasonable grounds of suspicion;. an officer may not arrest on information or suspicion, without a warrant, for a misdemeanor, unless it was committed in his presence. . . But the authority of a private individual is much more limited and confined. (1) He may arrest for felony, but he does it at his peril. If called upon to justify it, it has been held by some Courts that he must show that the felony had actually been committed, and that he had reasonable grounds for believing the person arrested to be guilty. Wakeley v. Hart [ante, No. 965]; Davis v. Russell, supra; Allen v. Wright [ante, No. 963]; Reuck v. McGregor, 32 N. J. Law, 70; Holley v. Mix, 3 Wend. 350; Keenan v. State, 8 Wis. 132; Beckwith v. Philby, supra; Russell v. Shuster, 8 Watts & S. 308; Burns v. Eden, 40 N. Y. 463 [ante, No. 966]; 2 Add. Torts, § 803; Cooley, Torts (2d ed.), 202. But it has been held by other Courts, and perhaps with better reason, that he must show that the person arrested was actually guilty of the felony. Rohan v. Sawin [post, No. 1080]; Com. v. Carey [post, No. 1081]; Morley v. Chase, 143 Mass. 396, 9 N. E. 767. So, he may arrest for an affray or a breach of the peace committed in his presence, and while it is continuing. 1 Russ. Crimes, 272; 1 Archb. Cr. Prac. & Pl. 82; Timothy v. Simpson [ante, No. 962]; Knot v. Gay, 1 Root, 66; Mayo v. Wilson, 1 N. H. 53; Phillips v. Trull, 11 Johns. 486; Kurtz v. Moffitt, supra; Ross v. Leggett, supra. (2) But a private individual may not arrest for misdemeanor on suspicion, no matter how well grounded. And as, in case of felony, he is bound to show that the felony has been com |