Odger's English Common Law

478 TRESPASS TO THE PERSON.
(b) Where the arrest is made without a warrant, it may
yet be justified by special circumstances, e.g., by the relations
existing between the parties. Take, first, the case where the
defendant is a private person. He would be justified, if a
father or guardian, in subjecting his child or ward to some
forms of detention, provided such punishment did not go to
the length of actual cruelty. 1
This would also be true of a
schoolmaster or tutor, who stands in loco parentis to his pupil.
A private person may also arrest any one for whom he has
become bail, in order to secure his attendance at the time and
place named in the bail bond. 2
Again, the common law of England grants to private per-
sons the power of arrest in certain circumstances for the
preservation of the peace. Thus, a private person is justified
in arresting any of the King's subjects if there be a breach of
the peace actually continuing, or if he has reasonable ground
to believe that a breach of the peace which has been com-
mitted will be renewed. 3
It is also clear that any bystander
may and ought to interfere to part those who are breaking
the peace, and to stay those who are going to join them.
" Any person present may arrest the affrayer at the moment
of the affray, and detain him till his passion has cooled, and
his desire to break the peace has ceased, and then deliver him
to a peace officer." 4
Thus, where a man stationed himself " opposite to another's house,
making a disturbance, exciting others to disturbance and riot, and obstruct-
ing the public way," it was held that the householder was justified in
giving him into custody, for his acts amounted to a breach of the peace. 5
Again, a private person may justify breaking and entering the plaintiff's
house and imprisoning his person in order to prevent him from murdering
his wife: 6
But a private individual who has seen an affray committed is not
justified, after the affray has entirely ceased, after the offenders have quitted
the place where it was committed, and when there is no danger of its
renewal, in giving either of them in charge to a constable who had not
seen the affray. 7
If, however, a constable has seen a breach of the peace
1 See R. v. Jackson, [1891] 1 Q. B. 671.
2 Ex parte Lyne (1822), 3 Stark. 132.
' Price v. Seeley (1843), 10 CI. & P. 28.
i Per Parke, B., in Timothy v. Simpson (1835), 1 Or. M. & R. at p 762
« Per Erie, J., in Webster v. Watts (1847), 11 Q. B. at p. 324.
e Handcock v. Baker and others (1800), 2 B. & P. 260.
7 Baynes v. Brewster (1841), 2 Q. B. 375.