#### ELIZABETH JOURNEY *vs.*C. A. SHARPE *et al.*

What is an arrest, is a matter of law. Whether an arrest was made in a particular ease, is a matter of fact depending- on intention, and is to be decided by the jury.

This was an ACTION of trespass and false imprisonment, tried before his Honor, Judge Ballet, at the Fall Term, 1855, of Iredell Superior Court.

To prove the arrest, the plaintiff introduced the constable who acted in the case. lie stated that the instrument pi-oduc-ed, which purported to be a warrant, but which had no seal, and, in fact, charged no offense known to the law, was sued out by the defendant Sharpe, and placed inhis (witness’) *166hands to be executed. Pie went to the house where the plaintiff resided, rode up to the gate on horseback, and sent for her to come into the porch. She did so, and witness informed her that he had a warrant against her; to which she replied that she had expected such a thing. Ho then told her that she must go, two days thereafter, to the house of a man by the name of Keaton, about two miles distant, to attend her trial before a magistrate ; which she agreed to do The officer did not dismount from his horse, nor come within the enclosure of the house where plaintiff was, during the time of this conversation, nor did she leave the porch.

The magistrate, the defendants, the officer and witnesses, attended at the store-house of Keaton, about one hundred and fifty yards from his dwelling, where the plaintiff was. At the suggestion of Keaton they went to the dwelling-house, where the matter was taken up. The magistrate stated that the warrant was void, and the proceedings might be stopped. The defendant Sharpe, said ho would get another warrant. The plaintiff' then waived all objection to the warrant; the magistrate proceeded to investigate the charge and dismissed the warrant. The examination lasted an hour, or an hour and a half, during which time the plaintiff occupied a seat in the apartment, and was in the presence of the officer the whole time.

On these facts his Honor ruled that there was no arrest. In deference to which opinion, the plaintiff took a nonsuit and appealed.

JSoyden, for plaintiff.

Osborne, for defendants.

Nash, C. J.

A single question is presented by this case: Did his Honor err in his instructions to the j ury ? The defendant was sued for the acts of a constable, and there had been put into his hands, by the defendant, a paper writing signed by a magistrate, purporting to be a warrant against tho plaintiff. He went to her house, and without getting off *167bis horse, or going into tbe yard, told her be bad a warrant against her. She replied that she expected such a thing. He then directed her when and where to attend the trial, which she promised to do, and did. His Honor instructed the jury this was no arrest. In this there is error. An arrest is simply taking tbe body of-an individual by an officer, under legal process ; but it has been decided that, to constitute an arrest, it is not necessary for the officer to touch the person. It is sufficient if, being in his presence, he tells him he has such a precept, and the person says, “ I submit to your authority.” So, if .the officer does touch the individual, it may, or may" not, amount to an arrest, according to the intention with which it is done. 'Where a transaction takes its character from the intention of the parties, this intent is a matter of fact to bo submitted to the jury. Here there was no touching; the whole transaction was of an equivocal character, depending on the intent of the parties, and ought to have been submitted to the jury with proper instructions. *Jones*v. Jones, 13 Ire. Rep. 418.

It was said in the argument, that the officer’s return was *prima fade*evidence that he had made the arrest. Be that as-it may, it us not important in the view we have taken of the case before us. In *Bland*v. Whitfield, 1 Jones’ Rep. 123, the same defense was made as to a sheriff’s return upon an execution levied upon property ; the Court say the return upon the execution is *prima faeie*evideuce in the proceedings of which it forms a part; whether it is also *prima faeie*evidence in 'another and a different proceeding or action, may well “ be questioned.”

Again, it is said, *“*supposing the return to *be prima facie*evidence that a levy was made, it remains an open question whether the officer did, or did not, lay hands on the property, &c.” In this case, the return made by the officer is ‘ executed.’ If the paper writing, under which the officer acted, had been a legal precept, still the return would have left the question an open one as to whether the 'officer had actually taken the body of the defendant mentioned in the precept, or whether *168tbe circumstances disclosed were *intended*by tbe parties as an arrest. We bave seen that, in tbe latter case, tbe efficiency of the act was a question of fact for tbe jury. But bis Honor took the whole case from the jury, and considering it a question purely of law, charged that no arrest was proved. What is an arrest, is a question of law. Whether there has been an arrest, under particular circumstances, depending on the intent, is a question of fact. See *Jones*v. Jones, supra— same case, 1 Jones’Rep. 491. There is error. The judgment is reversed, and a *venire de novo*awarded.

Pee Cueiam. Judgment reversed.