The Albany Law Journal. ALBANY, OCTOBER 21, 1871. TRIAL. BY JURY IN CIVIL ACTIONS. entitled to, and must receive, the same measure of The We have, from time to time, expressed our conviction that in civil actions a jury is not the proper body to determine the rights of litigants. At the best, especially under the forms of pleading in vogue in most of the States, where all the facts incident to the matter at issue are to be determined, the conclusion of twelve men chosen at random, some of them ignorant, and all inexperienced, is uncertain, and as liable to be wrong as right. But besides this, as is well known, in certain kinds of actions juries are uniformly prejudiced, and the result can be told as well before verdict as afterward. Suits against railways for personal injury, and suits by women for breach of promise to marry, so notoriously are decided unfairly, that defendants very frequently pay large sums to settle unjust claims rather than to risk a trial where they know they can expect neither mercy nor justice, and where the damages which will, without doubt, be assessed against them will not be measured by the injury supposed to have been received by the plaintiff, but by their ability to pay. The verdict rendered in the case of Craig v. Sprague, a few years ago in Chicago, was so outrageous that the attorneys for the plaintiff at once offered to remit a very large proportion of the amount. The juries of Illinois seem to be given to this way of doing business, to a degree that has brought down several merited rebukes from the court of last resort in that State. In the case of Illinois Cent. R. R. v. Welch, 52 Ill. 183, the defendant had received an injury while in the employ of the rail-nity earn by a long life of toil, and the interest of road company, and for which he was, under the circumstances, entitled to some compensation. He had, however, before the commencement of the suit, and after being fully aware of the injury done, for a consideration, executed a release, under seal, of all claim against the company. Nevertheless, on the trial the jury gave him a verdict for $10,000. In delivering the opinion of the court, giving judgment of reversal, Mr. Justice Lawrence says: "It has become a matter of public notoriety, and is evidenced by many of the records brought into this court, that juries very generally assess an amount of damages against railway corporations which, in similar cases between individuals, would be considered unjust in the extreme. It is lamentable that the popular prejudice against these corporations should be so powerful as to taint the administration of justice, but we cannot close our eyes to the fact. When this becomes apparent the courts must interfere. However natural this prejudice, or however well deserved, it cannot be permitted to find expression in unjust verdicts. A railway company is In one sense, it is true, a pecuniary value cannot be placed upon an arm. But, inasmuch as the law can give only a pecuniary compensation, and as the plaintiff seeks that by his suit, we are obliged to take a practical and almost unfeeling view of this question; and when the injury is one that will still leave the plaintiff able to earn as much, in many occupations, as he was earning before the accident, we must hold a verdict to be unreasonable which gives him at once a sum larger than the great majority of the commu which would amount to more than twice his wages. When we consider this, and remember that such verdicts for injuries inflicted without design or malice are never rendered in suits between individuals, and that the statute limits the damages for the loss of life to $5,000, we think it our duty to pronounce the damages in this case excessive." In another case, Walker v. Martin, 52 Ill. 347, two wealthy persons had caused the arrest of a man of somewhat doubtful reputation. There was evidence that the arrest was malicious, and it was not proved to be justifiable. The only injury the arrested person received was that resulting from a brief detention, and such as was, possibly, inflicted upon his not wholly certain good name. Yet, the jury, knowing the plaintiff to be poor and the defendants rich, gave it as their candid opinion that it would require the sum of $25,000 to balance matters between the parties. Concerning this action, Mr. Chief Justice Breese remarks: "This verdict is unprecedented in the annals of judicial proceedings. It bears upon its face the stamp of prejudice, partiality and oppression, and ought not to remain on our records. "Such verdicts as this is outrage that sense of justice which has a lodgment in every well-regulated mind, and, if sustained by this court, could not but tend to increase that tide of opposition to the jury system, which is now rising and advancing in more than one State in this Union. If sustained, juries will be regarded as instruments of oppression, rather than a bulwark of our liberties. It may not be that either of the ancient ordeals-that of the AngloSaxon, of red-hot iron and boiling water, or that of the more chivalric Norman, by battle-will be revived; yet, there is no small danger the institution will sink into contempt, to end at last in its utter overthrow. This is said in view of the material of which juries are composed in modern times; but however composed, it is quite time they should understand they do not possess despotic power. The maxim, "sic juber, sic volo, stat voluntas pro ratione," has no place in jury trials. It is the maxim of the despot, whose own unbridled will is the law for him, and for all within his power." In feudal times, when the English people were struggling to maintain their rights against the usurpations of the hierarchy and nobility, when proceedings before law courts were principally of a criminal nature, and, whether criminal or civil, always involved personal liberty, the right of trial by jury was essential to the protection of the individual. Then, too, the matters coming before the courts involved very little law and few facts, and the men filling the jury box were, we are sorry to say, far more intelligent and educated, in proportion to the rest of the community, than they now are. To-day, under changed conditions, we find a jury trial so cumbrous, dilatory and uncertain, that the more confident a party is that he has right on his side the less willing he is to submit his cause to the determination of that time-honored tribunal. In fact, the decision of a jury, except in the class of cases we have named, possesses so many elements of chance that speculative persons very frequently, after all the evidence is in, lay wagers upon the result, basing their opinions, not upon the effect of the testimony given, but upon their personal knowledge of the prejudices of individual jurymen, or the improper outside influence which has been brought to bear to affect the verdict. In criminal actions we should by all means retain the present system, as there the contingent harm is more than balanced by the certain good. In civil actions, however, it is worthy of a consideration whether the time for a change has not already arrived. Briefless Barrister Pope asks, is there no bright revision in the sky? That is clearly a question which only a lawyer can answer. WHAT CONSTITUTES AN ARREST. Blackstone says "" an arrest must be by corporeal? seizing or touching the defendant's body. 3 Black. 288. An arrest is well described in the old books as the beginning of imprisonment when a man is first taken and restrained of his liberty by power of a lawful warrant. 2 Shep. Abr. 299. As the restraint of a person's liberty by the actual seizure or apprehension of his body, or otherwise, in execution of some legali process. Burrill's Law Dic. vol. 1, 130. Mr. Chitty has perhaps the most satisfactory definition. He says: "To constitute an arrest the party against whom the process is awarded must either be actually touched by the officer or confined in a room, or must submit himself, either by words or actions, to be in custody." 1 Chitty's Crim. Law, 48. We see here that in the light of more modern authority an arrest is not exclusively a corporal seizing or touching the body. Each of the above definitions refers to arrests by virtue of process, but the same principles and law is applicable to arrests made without process, for, indeed, a great many arrests are made without process with the full sanction of the law. The question as to what constitutes an arrest has arisen both in England and in the United States in actions for false imprisonment, or in actions of a kindred character. Sometimes it has been a question whether there was any submission to the officer's authority, and sometimes a question whether what was complained of was only the voluntary act of the party. And although the definition given by Mr. Chitty is clear and precise, though somewhat comprehensive, yet what constitutes submission or custody in a legal point of view are questions to be determined only by the peculiar circumstances of each case. It may be justly inferred from Mr. Chitty's definition of the term Arrest that it is settled that no manual touching of the body is necessary to constitute an arrest. All of the books agree that it is a restraint upon personal liberty as one of its conditions, but what degree of restraint, and how it must be exercised or imposed to constitute an arrest, presents an extensive field of inquiry. Mr. Stevens in his treatise on the law of nisi prius says: "In all the cases it seems the plaintiff must, by the act or order of the defendant, be deprived of his personal freedom for some portion of time, however short. Bare words, without laying hold of the plaintiff's person, or restraint on submission without force, will not constitute an arrest. Although mere words will not constitute an arrest, yet in ordinary practice words are sufficient to constitute an arrest if they impose a restraint upon the person, and the party is accordingly restrained, for he is not obliged to run the risk of personal violence and insult by resisting until actual violence is used." 3 Starkie Ev. (3d ed.) 1113. be by body ld b ARP That bare words are not sufficient to constitute an rrest is well illustrated in the case of Genner v. Sparks, Salk. 79. In that case the bailiff having a warant against Sparks went to him in a yard, and being it some distance told him he had a warrant and said e arrested him. Sparks kept him off with a fork nd retreated into his house. It was held that this was no arrest, that bare words will not make an rrest, but if the bailiff had touched him and the party ad instantly run away, that would have been an rest. There was no restraint here and certainly no 30 submission, for Sparks put the officer at defiance. There must be in all cases some degree of restraint, but not necessarily submission even where there is no he seizing or touching the person, as where a person is locked up or confined in a room. The difficulty which arises in most cases is the determination as to Tewhat constitutes a restraint. In those cases where it has been judically determined that no legal arrest was made, the facts show there was no restraint of the party by the officer; and what we mean by restraint is a deprivation of personal freedom of action in some degree. Lord Mansfield said in Arrowsmith v. Messurier, 2 N. R. 211: "I suppose an arrest may take place without any actual touch, as if a man be locked up in a room, but here the plaintiff went voluntarily before S the magistrate. The constable brought a warrant but did not arrest him. How can a man walking freely to the magistrate prove himself to be In arrested." It was also held that the warrant had been used as a summons, and it does not appear that there was any restraint of personal freedom of physical action exercised by him. Where an officer sent word to the plaintiff that he had a writ against him, and requested that he would fix a time for attending at the officer's house and give bail, and he did so, it was held that, as there was only one notice of the writ given, there was no arrest. Berry v. Adamson, 6 Barn. & Cress. 534. When an officer, having a warrant for the arrest of a party, said: "I know you; I will take your word; but you must give bail," and went away; this shows there was no restraint imposed by the officer; that is, he did not consider an arrest was made, as the language he used plainly indicates, although he made a return that he had arrested him. It was held that this was not an arrest, but that if the party had gone with him it would have been sufficient. George v. Radford, 3 Car. & Payne, 464. In Russen v. Lucas, 1 Car. & Payne, the officer having a warrant for one Hamer went to a tavern where he was and said, "Mr. Hamer, I want you." Hamer replied, "Wait for me outside the door, and I will come to you." The officer went to wait and Hamer went out of another door and got away. Abbott, C. J., says: "Mere words will not constitute an arrest, and if the officer says, 'I arrest you,' and the party runs away, it is no escape; but, if the party acquiesce in the arrest, and goes with the officer, it will be a good arrest. If Hamer had gone with the officer into the passage, the arrest would have been complete." In a note to this case it was said, "the question in the principal case was, whether directing the officer to go and wait for him was not an acquiescence in the arrest, though it certainly appears to have been, not an acquiescence, but a trial to evade the officer and run away;" there was no submission to the authority of the officer. It is not necessary, to constitute false imprisonment, that the person restrained of his liberty should be touched. If he is ordered to do or not to do a thing, to move or not to move against his own free will; if he is not left to his own option to go or stay when he pleases and force is offered or threatened, and the means of coercion are at hand ready to be used, or there is reasonable ground to apprehend that coercive In Lansing v. Case & Smith, Ontario Com. Pleas, 4 Legal Obs. 222, E. Fitch Smith, first judge, said: "There is no doubt the rule is well settled, that, if the officer exercises a controlling authority over the person of the party while within his power, and imperatively directs that he must go with him, or that he must do, or must not do, a particular act, and obedience is yielded, or the party, being in the power of the officer, does go or does another act against his will, in order to prevent actual force being used, this will amount to an arrest and imprisonment." The question of submission to an officer where no force has been used has quite frequently arisen. In Homer v. Battyn, Buller's Nisi Prius, 62, it is said, "if the bailiff, who has the process against one, says to him when he is on a horse or in a coach, 'you are my prisoner, I have a warrant against you,'" upon which he submits, turns back, or goes with him, though the bailiff never touched him, yet it is an arrest, because he submitted to the process. See also Pacock v. Moore, Ryan & Moody, 321. Where the defendant, for purposes of extortion, had placed a writ in the hands of a sheriff's officer, with instructions to arrest the party unless he would give up some property, and the officer, finding his way to the party's sick bed, produced the writ and demanded the property, telling the party unless it was delivered up to him a man would be kept with him, and the party yielded to the pressure and gave up the property, it was held that these facts amounted in judgment of law to an arrest. Grainger v. Hill, 5 Scott, 580. There was, in this case, the clearest evidence of restraint exercised by the officer and submission by the party. So, in Gold v. Bissell, 1 Wend. 210, no force was used. Bissell was informed by the constable of the process he had against him, and Bissell went with him some distance, and then procured a person to engage that he would appear the next day before the justice. It was held that, as the party was in the power of the officer, and, while thus in his power, submitted to his authority, and went with him, this amounted to an arrest. So that, in this case, there was also both restraint and submission. Restraint is the primary element in all arrests, and submission is but the evidence of such restraint. Judge Smith, in Lansing v. Case and ano., cited above, refers to what he terms a class of cases which show that mere words, unaccompanied by any act of submission, will not constitute an arrest. And, as we might anticipate, in each of these cases there was no restraint to submit to. Words are not material things which, of themselves, possess physical power, but, in some cases, restraint only begins with submission. As if A. (an officer having the proper authority) say to B., "I arrest you," using no force, and B. turns and goes away, there is no restraint imposed on B.; but if B. submits by word or act to A.'s authority, then there is restraint, and, therefore, an arrest. cer who has the power and the intention to use force, if necessary, in the execution of process against him, and this is known or communicated to him in his presence? Has he perfect freedom of action? We think not. And, although he may not accompany the officer, and, in fact, be not taken away at all, yet for a short time at least he may be under his control and may be considered fairly under arrest, there being no resistance and no objection, a submission to the officer's authority may be justly inferred, for, if he resist or object, violence might ensue and he is not obliged, as we have seen above, to run that risk. Again, we think that if an officer has a party within his power and can exert, if necessary, a controlling force over him, and informs him he has a warrant for his arrest, and that he has come for that purpose, or uses words of arrest, and commands him to appear before the magistrate and give bail, and he does So, it is an arrest, even though there is no touching of the person, or no promise to give bail, for. assuming that non-resistance alone, unconnected with subsequent facts, is not submission to the officer's authority in his presence (which we do not admit), still, the fact of going afterward before a magistrate and giving bail as commanded, is strong evidence of the fact of submission to the authority of the officer, while in his presence and power and was, therefore, to some extent, under restraint and was really Such is the principle decided in Genner v. Sparks in his custody. and Russen v. Lucas. It is not necessary that there should be any very formal declaration of arrest. If the officer goes for the purpose of executing his warrant, has the party in his presence and Joan Rte party so understands it, and, in consequence thereof, submits, this is an arrest. Pike v. Hanson, 9 N. H. 491., Inch arabestry, 18.NH 200Mbpds, Justice, said: "In brief, if the intention to make an arrest, and the power of doing so in-form, e-exist and are made known to the party who does not resist, then an arrest is made, and no more is required." It may be supposed, at first view, that this proposition conflicts with the principle that "bare words do not constitute an arrest," upon which so much stress is laid in Genner v. Sparks and Russen v. Lucas, cited above; but in Genner v. Sparks there was no restraint, and the officer was kept at a distance by Sparks by the bold attitude which he assumed, and hence there was no submission. In Russen v. Lucas it does not appear that Hamer knew that when the officer said to him, "I want you," and Hamer replied, "Wait for me outsitle the door, and I will come to you," he intended to arrest him; hence, there was no restraint in what the officer did. At all events, whether he knew it or not, his apparent acquiescence was a trick, for he immediately left the house by another door, and left the officer waiting for him. But can it be said there is no restraint of a party when he makes no resistance or objection to an offi In such cases a promise to give bail at a future day is frequently made, and the party is suffered to go at large; in fact, this is the constant practice among officers, when the offense is light. It may be supposed that this view conflicts with Arrowsmith v. Messurier and George v. Radford. The former was considered as of doubtful authority, in Pike v. Hanson, except upon the ground of the warrant being used as a summons; in fact, the case seems based upon the ground that the officer did not exercise any control or authority over the party. In the latter, there was a manifest intent on the part of the officer not to put the party under restraint. See Lansing v. Case, above cited. We do not claim that what takes place beyond the presence of the officer is submission, but what is done after the exercise of authority, as we have described, and in pursuance of what was commanded or promised at the time, may be important facts in determining the intention to submit, or as showing that he considered himself in custody of the officer while in his presence. In Lansing v. Case, it was said, "it may be well doubted whether there be any such thing as an arrest by submission, in the absence of the officer or some one acting under his authority and direction, for power in the officer with the means of coercion must exist and combine with the act of submission by the party arrested. It is true that when an arrest is made by an actual manual touch or by coercive power or control, that the officer who has the warrant need not be the hand that arrests, nor in the presence of the person arrested, nor within sight, nor within any exact distance; it is enough if the person making the arrest is acting in aid of the officer and under his authority and direction, provided they are both pursuing the same object. 1 Cowper, 63; 13 Mass. 322. But a partial restraint of the will of a person is not sufficient to constitute an imprisonment. Thus where a part of a public footway on a bridge was taken and appropriated for seats to view a regatta, and separated for that purpose from the adjoining carriage road by a temporary fence, and the plaintiff insisted upon a right of way across the part so appropriated and climbed over the fence, but was stopped by two policemen who prevented him from proceeding onward, but at the same time told him he might go back if he pleased, which the plaintiff refused to do, and remained where he was for half an hour, it was held that this was no imprisonment. Bird v. Jones, 7 Q. B. 742. We see here that the officers did not exercise full control over the party, and therefore there was no arrest. It is that entire restraint upon the will which leaves no option or freedom of action which may be produced by direct application of power or force, or by a show of authority or power, accompanied with an apparent intention to enforce such authority by means of physical power, inducing a just apprehension of violence unless an immediate submission to custody takes place, that constitutes an arrest. CURRENT TOPICS. The indefeasible right of the free-born American citizen to lounge in public places has been recently upheld, in a decision of the highest court of Illinois, in the case of O'Hara v. King. It seems that Mr. King, finding, one evening, that time was hanging heavy on his hands, concluded to relieve himself of the unwelcome burden by visiting some place where men were accustomed to congregate, and selected for that purpose the office of the clerk of a recorder's court. He had scarcely arrived at his chosen destination, when the clerk, Mr. O'Hara, with unwarrantable curiosity, desired to learn if Mr. King had any business to be attended to. Upon receiving a negative answer, Mr. O'H. suggested that Mr. K.'s absence from the place of their interview was, at that moment, very desirable. Mr. K., however, declined to adopt the suggestion, whereupon Mr. O'H. cast him forth into the outer darkness. For all which Mr. K. brought suit, and the courts, thinking that he had as much right in the clerk's office as the other man, ordered Mr. O'H. to pay $166 damages, besides costs. To read the communications appearing in English law newspapers one would suppose that the legal profession there were losing all their business from the encroachments of "unqualified" persons, who, having no professional standing, pay little regard to the customs of the lawyers, and resort to every means to obtain employment. The lawyers of Leeds, however, do not mean that any improper advocacy shall be permitted in their borough. At a recent sitting of what is known as the "licensingsession" of that borough, on an application for a renewal of license, one Whittaker, a temperance advocate, rose to object to such renewal. Says a local paper: Upon this all the legal gentlemen in the court rose simultaneously to protest against Mr. Whittaker being heard. They were led by Mr. Cornwall, who protested as a legal practitioner, and on behalf of his colleagues, against Mr. Whittaker addressing the court. He argued that he, as a lawyer, paid six guineas a year for the privilege of addressing the court, and maintained that Mr. Whittaker had no locus standi upon which to address the court, except through an advocate. Mr. Williamson followed in a similar strain. Mr. Whittaker, however, refused to be silenced. He demanded, as a burgess, to be heard in accordance with the law laid down in "Burn's Justice of the Peace," and all the powers in the world could not prevent him. The law was laid down, that any burgess who had any cause of complaint could appear and state it to the bench. Mr. Williamson, however, protested against this, and was supported by Mr. Richardson, another solicitor. The magistrates' clerk advised the bench not to hear Mr. Whittaker. At this the latter gentleman became excited, and said a person in a similar capacity had been heard at Bingley. As the bench refused to hear him, he left the court, exclaiming, "I protest against your ruling-it's illegal," and the license was renewed. After a lapse of time, however, Mr. Whittaker re-appeared in the court armed with a volume of "Burn's Justice of the Peace,' and wished to explain the authority upon which he had acted. Mr. Richardson protested against the thing being re-opened, and Mr. Williamson said, the authority quoted was obsolete. Mr. Whittaker again protested loudly. The magistrates' clerk ruled that he had no right to speak, except through an advocate. Mr. Whittaker said he had produced his authority for what he had done, and was about to hand the book to the bench, when Mr. Williamson objected to its being put in, and Mr. Whittaker, thus baffled, left the court, exclaiming, "It's too bad; it is too bad, gentlemen," and protesting against its decision. They have, or at least had, before the present regime in France, a tribunal known as the court of accounts, whose province it was to overlook the financial dealings of public officers. It was made the duty of such officers to submit before this court, annually, a statement of all their money transactions, and, if any one failed to obey this requirement within the proper period, he might, without more ado, be punished for his default. It is to be presumed that the existence of this body had a favorable influence, not only upon the action of those handling government money, but upon the feelings and habits of the French people generally, for it is said that even the managers of the Commune, when the power passed |