ciple as Cole v. Hindson, 6 T. R. 234. (22). And Lawrence, J. said, in Cole v. Hindson, Lord Kenyon observed, that there was not any averment that the plaintiff was known as well by the one name as the other; neither was there any such averment in this case.

A peace-officer may justify an arrest in the day-time on a reasonable charge of felony without a warrant, although it should afterwards appear, that a felony had 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". 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. Proof of mere suspicion will not bar the action, although it may be given in evidence in mitigation of damages. And the plea justifying an arrest by a private person, on suspicion of felony, must shew the circumstances, from which the court may judge, whether the suspicion were reasonable".

It is lawful for a private person to do any thing to prevent the perpetration of a felony. Hence the imprisonment of a husband by a private person, to prevent him committing murder on his wife, is justifiable. So if two persons are

See

t Samuel v. Payne, Doug. 358.
also Cald. 291. 2 Esp. N. P. C.
540, and 3 Camp. N. P. C. 420.

a Lawrence v. Hedger, 3 Taunt. 14.
x Adams v. Moore, C. B. Middlesex

Sittings after H. T. 51 G. 3. coram
Heath, J. MS.

y S. C.

z Mure v. Kaye, 4 Taunt. 34.
a Handcock v. Baker, 2 Bos, & Pul,
260.

(22) In that case to trespass for taking the goods of A. B. the defendant (an officer) pleaded that he took them under a distringas against C. B., meaning the said A. B., to compel an appearance, averring that A. B. and C. B. were the same person. N. A. B. had not appeared in the original action. On demurrer, the plea was holden to be bad; Lord Kenyon, C. J. observing, that this was distinguishable from Crawford v. Satchwell, Str. 1218. where it was determined, that the defendant might be taken in execution by virtue of a ca. sa. under a wrong name; for there the party had appeared in the original action, and done an act to avow that he was sued by the right name. See Price v. Harwood, 3 Camp. N. P. C.

108. and ante.

VOL. II.

P

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.

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".

In general where an affray takes place in the presence of a constable, he may keep the parties in custody until the affray is over, or he may carry them immediately before a magis

trate.

If a plea of justification consist of two facts, 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 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.

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.

to

If an action be brought for detaining plaintiff in prison fromand 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.

b 2 Roll's Abr. 559. (E) pl. 3.

c Bennet v. Watson, 3 M. & S. 1.
d Churchill v. Matthews, Nutt, &
Hi, Somerset. Summ. Ass. 1808,
Bayley, J.

e Spilsbury v. Micklethwaite, 1 Taunton's R. 146.

f Coventry v. Apsley, Salk. 420.

Where a declaration for false imprisonment against A. and B. contained two counts, 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 shewing the consent of A.; it was holden that he should not be permitted to prove the same trespass against B. under the other count.

The plaintiff declared for an assault, battery, and impri sonment, and having proved a trifling imprisonment, but not any battery, obtained a verdict, with one farthing damages, Sir James Mansfield, C. J. certified under stat. 43 Eliz. c. 6. An application was made to the court, that the plaintiff might have full costs, notwithstanding the certificate, on the ground that every imprisonment included a battery, and consequently, that this case fell within the exception mentioned in the statute; but the court were clearly of opinion, that the plaintiff was deprived of his costs by the certificate; observing, that it was absurd to contend that every imprisonment included a battery. It may be remarked, that Kenyon, C. J. had ruled otherwise in Oxley v. Flower and another, B. R. Middlesex Sittings, December 4th, 1800, MSS. In an action for false imprisonment, the jury, by the direction of the C. J., found a verdict for the plaintiff with 1s. damages. Erskine, for the defendant, requested the C. J., to certify; but he refused, on the ground taken by the counsel for the plaintiff in the preceding case, that every imprisonment included a battery, and consequently that this case fell within the exception mentioned in the statute.

It might be inferred from the preceding case of Emmett v. Lyne, that, if a battery were proved, the judge could not certify; but it has been solemnly decided, in Wiffin v. Kincard, 2 New R. 471. that whether there be a proof of a battery or not, still the judge may certify, with respect to the imprisonment, and thereby deprive the plaintiff of his costs.

g Atkinson v. Matteson, 2 T. R. 172.

h Emmett v. Lyne, 1 Bos, & Pul, N. R. 255.

CHAP. XXV.

INSURANCE.

1. Of Insurance in general.

II. Of Marine Insurance-The Policy-Different Kinds-Requisites-Rule of Construction.

III. What Persons may be insured-Who may be Insurers-What may be insured.

IV. Of Losses,

1. By Perils of the Sea.

2. By Capture, and herein of the Effect of an Embargo on the Contract of Insurance.

3. By Arrests, &c.

4. By Barratry.

5. By Fire.

V. Of total Losses and of Abandonment.

VI. Of partial Losses.

VII. Of Adjustment.

VIII. Of the Remedy by Action for Breach of the Contract of Insurance, and herein of the Declaration-Pleadings-Consolidation Rule.

IX. Of the several Grounds of Defence on which the Insurer may insist,

X. Evidence.

XI. Return of Premium.

XII. Of Bottomry and Respondentia.
XIII. Insurance upon Lives.
XIV. Insurance against Fire.

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 kinds of danger 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 insurThe following sections will be confined to an investigation of three species of insurance only: 1. Marine insurance. 2. Insurance upon lives. 3. Insurance against losses by fire.

ance.

(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 gam ing, 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 G. 3. c. 1. against fraudulent insurances upon lottery tickets.