The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-08-05
Common Pleas-speclal Term.

LOUIS y. TUselev vs.. SSkdh Fan Duser and W.
TSs action n.s
sonment ana al assault and battery. In November,
1851, plaintiff called at the New York Exchange
Bank to see whether The Franklin Em pire State and
Hartford Bank bills were redeemed there; and TINS
being the case, he presented bundle of notes (be
tween seven and eight HIM ired dollars), Of said
banks, indiscriminate)y mixed together. The clerk
Of the bank requested him to sort them but the
plaintiff insisted on their being redee med as they
were which the clerk refused 10 do. Plaintiff then
offered Sc in notes, but the clerk answered that to
redeem TEEN note by note would occupy too much
money redeemed, went away; but coming back
again the same Gay, an alteration arose between
the parties On being desired to leave the bank,
and on refusing to do 20, defendants (empl0yes in
the bank) caused his arrest The plainLin then
brought his action and the jury rendered verdict
for $500. The following opinion Of Judge Woodruff
was on a motion for new trial.
WOODRUFF i'll have reconsidered the rulings
made herein, and perceive no sufficient reason to
change the opinions expressed on the trial.
Although the questions raised by the defendants
exceptions are numerous, the two points upon
viii reliance is chiefly placed appear 70 be !; First
That it was erroneous TO admit evidence that the
plaintiff was sick when he left the prison and
t,nned for some time And second-That the Judge
erred in refusing TO charge that if the conduct OF the
defendan. was such as tended TO a breach of the
eace, the defendants we're justified ia directing his
arrest. l. As to the evidence claimed to have been
improper, think there was no errsa. II the plaintiff
ground that by the wrongful act Of these de.
fendants he had been arrested and confined
IN prison for several days, and the imme
ifate ana direct consequences Of that imprison-
ment fitting matters Of consideration when the
jury came to determine the amount Of damages. II
true that the evidence ia confined to the fact of
illness Immediately ensuing the imprisonment.
wfs inclined at frs. to Thick the evidence improper
unless followed by the testimony Of physician " no
should testify that the imprisonment caused the ILL
ness but, upon reflection, think that, though net
very satsfactor mode Of obtaining the ends of
justice, since the jury in such case were in some de-
gree left to speculate or conjecture, II Yet com
pe,ent 10 leave all the facts In their ha is. Al
though, in reference to this evidence, also in
gard TO the upon the whole of the evidence tnere
IL some reason TO believe tina. the jury were cot
wholly free from bias; and although it appeared
al the time the verdict rendered that they
gisiGg premium 70 conduct which deserved their
severe apprehension; yet am Of opinion that the
evidence laid before them was legal evidence and
If SO, il presented in which it pecu ally
their province TO determine its weight and indla1ce
UPON their verdict, and where the conflict # test
mopy pat slig1', ard the circumstance 10 be
taken into view the subject of inference wee va
rious and minute think ought not 10 set asi he
verdict even # thought | should have found jiS
fereDtly myself. J. In regard to the second point
above named am not satisfied that there was any
error. A police officer is justified in makiny ~
arrest breach Of the peace ia committed in Us
view, aud so the jury were instructed, and very
liberal explanation, as il appears to me, was
u
OF the peace. Iodeed seemed 70 me then, aud does
nox that the jury would have been warranted under
the Instructions given, in finding an actual breach
OF the peace by the plaintiff, and have justified
the defendants, but the jury thought othsr wise.
must then assume, in accordance with the verdict,
that the defendant did not w fact, commit breach
of The peace and counsel, although they H. st that
the preventive power Of an officer goes 80 fa that he
may arrest when he has reason TO apprehend q
breach of the peace, no case no- commentary is
cited as authority IN support Of the clam. That
officer may restrain the commission Of felony, or
any act dangerous TO life, limb, person, and mag
interfere in an ac.ua aff ay, 10 prevent fighting
and remain long enough {, stay the parties, Is IN
doubtedly true. But that because he judges the
conduct Of party, (aot itself constituting breach
Of the peace TO tend TO breach of the peace he
may arrest and take to prison, apprehend cannot
be sustained. Our statute, which does provide for
such case, requires that warrant shall issue; and
as thought upen the trial, now think, thas no
arrest can lawfully be ,d for this without the
warran. which the statute prescrbes. am con-
strained ~ deny TIE motion far 4 new trial, with
costs.