peace of our Lady the Queen: whereupon the defendant then requested the plaintiff to cease ringing the said door-bell of the said dwelling-house, and to cease and discontinue making such noise and disturbance as aforesaid, which he the plaintiff then wholly refused to do, and continued making the said noise and disturbance, and so with force and violence wilfully and wantonly ringing at the door-bell of the said dwelling-house of the defendant as aforesaid, without any lawful excuse for so doing, for a long space of time, to wit, for the space of one hour; and thereupon the defendant, in order to preserve the peace, and restore good order and tranquillity in his said house, then gave charge of the plaintiff to a certain policeman, to wit, one John Murray, the said policeman then being a constable belonging to the metropolitan police force, and then requested the said policeman, so being such constable as aforesaid, to take the [126] plaintiff into his custody to be dealt with according to law; and the said policeman so being such constable as aforesaid, at such request of the defendant as aforesaid, then gently laid his hands on the plaintiff for the cause aforesaid, and did then take the plaintiff into his custody, in order to carry and convey him to the said metropolitan police court, to wit, the Marylebone Police Office aforesaid, to be there dealt with according to law, for his said offence and breach of the peace; and, because it was then late at night, and an unseasonable time for the said policeman to carry and convey the said plaintiff to such metropolitan police office as aforesaid, the said policeman, so being such constable as aforesaid, for that reason, and for the cause aforesaid, did necessarily and unavoidably force and compel the plaintiff to go as a prisoner and in custody into, through and along the said public streets and highways unto the said police-station in the declaration mentioned, the same being the nearest police-station to the said dwelling-house of the defendant, and, inasmuch as the day next following such taking of the plaintiff into custody as aforesaid was Sunday, did necessarily and unavoidably then and there imprison the plaintiff for the time in the declaration mentioned, and until he the plaintiff did procure such bail and surety as in the declaration in that behalf mentioned, and did afterwards, to wit, on the 11th of April in the declaration in that behalf mentioned, force and oblige the plaintiff to attend at the said police court in the declaration in that behalf mentioned, to answer the said charge of the defendant, and did there then necessarily and unavoidably detain the plaintiff for the said time in the declaration in that behalf mentioned, as he lawfully might for the cause aforesaid; which were the same alleged trespasses in the introductory part of that plea mentioned, and whereof the plaintiff had above complained against the defendant. Verification.

[127] Special demurrer, assigning for causes-that it did not appear in or by the said plea that the plaintiff was committing any breach of the peace at the time he was given in charge by the defendant to the said police constable, or that there was any reasonable ground to apprehend that he would commit any breach of the peace, or that it was necessary to preserve the peace that the plaintiff should be given into custody as aforesaid; that, for any thing that appeared in or by the said plea, the said supposed breach of the peace might have wholly ceased, and there might have been no reason to apprehend a repetition or continuation thereof at the time the defendant gave the plaintiff in charge to the said police constable; that the defendant had no authority by law to arrest or imprison or give the plaintiff in charge to a constable in order that he might be punished for a past breach of the peace, as stated in the plea, but only in order to prevent him from committing a breach of the peace (vide ante, vol. ii. 461); and it should have appeared distinctly clearly in and by the said plea that there was good and probable reason to suspect that the plaintiff would commit a breach of the peace unless he were arrested and imprisoned; that it did not appear in or by the said plea that the said noise, disturbance and ringing at the said door-bell, which it was alleged the plaintiff made after the request of the defendant in the plea mentioned, was made by the plaintiff in breach of the peace of our Lady the Queen; that it did not appear in or by the said plea that either the defendant or the police constable saw or had view or heard the said noise, disturbance, or ringing ; that the said ringing of the door-bell was, at the most, a mere civil trespass, and for which the defendant could not proceed criminally against the plaintiff, and could not even require from him surety of the peace; that it did not appear that the defendant [128] attempted to justify the arrest and imprisonment of the plaintiff under any statute, but by virtue of the common law, and the common law does not give the defendant any authority to arrest or imprison the plaintiff under the circumstances

stated in the plea; and that it did not appear that either the defendant or the constable had authority to arrest or imprison the plaintiff under any statute, since it did not appear that the supposed offence was committed by the plaintiff in any thoroughfare or public place, or within the limits of the metropolitan police district, or that the plaintiff, by ringing the said door-bell, wilfully and wantonly disturbed any inhabitant of any dwelling-house (a). Joinder.

Bompas Serjt., for the plaintiff. The question raised by the pleadings amounts to no more than this, whether the ringing at a door-bell amounts to a breach of the peace, so as to justify the arrest of a party by a private individual; Hawk. P. C. bk. 1, c. 63, 8. 11. [Tindal C. J. The defendant certainly, instead of pleading evidence, ought to have alleged that the plaintiff was committing a breach of the peace.] The plea clearly does not shew any breach of the peace. In Timothy v. Simpson (1 C. M. & R. 757, 5 Tyrwh. 244), the plea justifying the imprisonment of the plaintiff, alleged that an affray had been committed. [Cresswell J. And it appeared that there was danger of [129] its immediate renewal.] So in Ingle v. Bell (1 M. & W. 516. Tyrwh. & G. 801) the plea shewed an existing riot or unlawful assembly. [Tindal C. J. The disturbance mentioned in this plea may have taken place at midnight.] It is not stated that it did. If the ringing mentioned in the plea amounts to a breach of the peace, the ringing for one minute would equally do so; as the time makes no difference. If a party is in the house of another and will not go out on request, the owner of the house may turn him out by force; but he cannot give him in custody unless there has been an actual breach of the peace (see Lewis v. Arnold, 4 C. & P. 354). In Cohen v. Huskisson (2 M. & W. 477) the plea expressly alleged that the plaintiff was making a noise and disturbance in the defendant's shop, in breach of the peace. [Tindal C. J. The plea here alleges that the plaintiff was making a noise and disturbance at the defendant's house.] The slightest ringing would satisfy that averment. Suppose the plaintiff had rung to inquire if some particular person lived there: would that have justified the defendant in giving him in custody? There is no averment of any alarm to the neighbourhood, or even that the house was situated in a public thoroughfare. [Tindal C. J. The court certainly cannot take judicial notice that Mortimer Street is a thoroughfare; although the word "street"-via strata-would rather imply a thoroughfare. But the real vice in the plea is that it does not allege in distinct terms that there was any breach of the peace.] Nor is it averred that any was apprehended. Even if there had been a breach of the peace, a constable could not, at common law, take the offender in custody unless a repetition of the offence were apprehended. [130] Talfourd Serjt., for the defendant. It is submitted that the plea sufficiently discloses a breach of the peace at the time of the arrest. After stating that the plaintiff "with force and arms came to the house and violently rang the bell, and continued so doing after being requested to desist, it states that "thereupon" (which must mean instanter) the defendant gave him in charge. In Baynes v. Brewster (2 Q. B. 375; 1 G. & D. 669) a plea justifying the plaintiff's arrest for creating a disturbance by rapping at the defendant's door was held bad because it appeared that the disturbance was over at the time of the arrest. [Tindal C. J. And that, although the plea stated that the defendant gave the plaintiff in charge "in order to preserve the peace." Cresswell J. What allegation is there in this plea of any thing having been done in breach of the peace?] It alleges that the disturbance took place "against the peace of our Lady the Queen." [Tindal C. J. Those are mere verba sonantia. One party eannot arrest another for a mere unlawful act. Cresswell J. Every trespass is laid as a breach of the peace. Suppose the plaintiff had blown a horn in the front of the defendant's house, that might have been a breach of the metropolitan police act (2 & 3

(a) The metropolitan police act (2 & 3 Vict. c. 47), sec. 54, enacts "that every person shall be liable to a penalty of not more than forty shillings, who, within the limits of the metropolitan police district, shall, in any thoroughfare or public place, commit any of the following offences; that is to say.

"16. Every person who shall wilfully and wantonly disturb any inhabitant by pulling or ringing any door-bell or knocking at any door without lawful excuse: . . . "And it shall be lawful for any constable belonging to the metropolitan police force to take into custody, without warrant, any person who shall commit any sucn offence within view of any such constable."

peace.

Vict. c. 47. See sect. 54, div. 14); but it would not have been a breach of the Tindal C. J. To make this a good defence there should be a direct allegation either of a breach of the peace committing at the time of giving the plaintiff into custody, or that a breach had been committed, and that there was reasonable ground for apprehending its renewal.

The learned serjeant then prayed and obtained
Leave to amend.

[131] THE WARDENS AND COMMONALTY OF THE MYSTERY OF FISHMONGERS OF THE CITY OF LONDON v. JOHN ROBERTSON, JOHN GYLLYATT BOOTH, FRANCIS WILLIAM STAINES, AND FOUR OTHERS. Jan. 19, 1843.

[S. C. 6 Scott, N. R. 56; 12 L. J. C. P. 185. Discussed, Copper Miners' Company v. Fox, 1851, 16 Q. B. 237. Referred to, South of Ireland Colliery Company v. Waddle, 1868-69, L. R. 3 C. P. 471; L. R. 4 C. P. 617. Discussed, Kidderminster Corporation v. Hardwick, 1873, L. R. 9 Ex. 20. For subsequent proceedings see 1 C. B. 60; 3 C. B. 970.]

A declaration in assumpsit by a corporation, stated that the defendants had presented a petition to the House of Commons for leave to bring in a bill for draining certain slob or waste lands in Ireland, the introduction of which bill was opposed by the plaintiffs, and also by A.; and that by a certain agreement made "between B. on behalf of the plaintiffs, of the first part, C. on behalf of A. on the second part, and the defendants of the third part, it was agreed that the plaintiffs and A. should withdraw all opposition to the bill; that the clauses therein should be settled by the solicitors of the parties, in order that the bill might be as perfect and beneficial as it could be made; that the plaintiffs and A. should use all reasonable means and endeavours to promote the progress of the bill; that part of the slob should be allotted to the plaintiffs, and part to A.; that the defendants would, on the passing of the act, pay the plaintiffs 10001.; and that the defendants would pay all costs of obtaining the act; that by a memorandum indorsed upon the agreement, with the consent of all parties, and signed by D. as agent to the defendants, it was declared that the plaintiffs and A. were severally and jointly bound; that the 10001. was to be paid to the plaintiffs for expenses incurred by them in a survey and for plans, &c. of which the defendants were to have the benefit; but that the plans, &c. were to be returned to the plaintiffs if the 10001. were not paid. The declaration then stated, that in consideration of the agreement and memorandum, and of the premises, and that the plaintiffs would perform all things in the said agreement, &c. on their part, the defendants promised to perform all things therein on their part, so far as concerned the interest of the plaintiffs; that the plaintiffs delivered the plans, &c.; that they withdrew all opposition to the bill; that A. did the same, &c., whereof the defendants had notice.-Held, that it might be inferred that the contract was not under seal.-Held also, that it was not such a contract as would fall within the exceptions to the general rule requiring corporate contracts to be by deed. But -Held also, that the contract having been executed on the part of the corporation, and the defendants having received the full consideration, the latter were bound by the contract, and the plaintiffs were entitled to sue thereon.-Semble, that if the contract had remained executory, the fact of the corporation having put it in suit would have amounted to an admission on record of their liability under it, so as to estop them from disputing such liability in a cross action.-Semble also, that up to the time of the corporation adopting the contract by performing the condition on their part, there was a want of mutuality, as they could not be compelled to perform the contract; and consequently that the defendants during that interval had the power to retract.-Held, that, the interest of the plaintiffs and of A. being several, the latter was properly omitted to be made a co-plaintiff.-Held also, that the agreement declared upon was not illegal as being an agreement against public policy.Held also, that a plea-that the bill was not as perfect and beneficial as it might have been made, was no answer to the action.-Held also, that the using by the plaintiffs of all reasonable means and endeavours to procure the bill to pass, was not a condition precedent, and therefore that a plea traversing that averment was bad. -Held also, that a plea stating that the plaintiffs had presented a petition to the

House of Lords against the preamble of the bill was bad, as amounting at least to an argumentative traverse of one of the two averments,-that the plaintiffs withdrew their opposition, and that they used all reasonable means to promote the bill. -Semble, that a plea directly traversing the averment, that the plaintiffs withdrew their opposition, was good.

Assumpsit. The first count of the declaration stated, that before and at the time of the making and entering into the articles of agreement therein-[132]-after in that count mentioned and set forth, a petition had been presented to the House of Commons, and was then pending, at the instance and on behalf of the defendants, that is to say, for leave to bring into the said House of Commons a bill for draining, embanking and reclaiming certain slob or waste lands in Lough Swilly and Lough Foyle, in the counties of Donegal and Londonderry, in Ireland; that the plaintiffs, before and until and at the time of making of the said articles of agreement thereinafter next mentioned, had opposed, and were then opposing, and objected to, the bringing in and passing of such bill: that one Robert Ogilby at those times also objected to, and opposed, the introduction of the same bill, separately and apart from the plaintiffs, and on his own behalf: that theretofore, to wit, on the 17th of March, 1838, by certain articles of agreement in writing then made and entered into by and between J. D. Towze, for and on behalf of the plaintiffs, therein described as the wardens and commonalty of the mistery [133] of fishmongers of the City of London, commonly called the Fishmongers' Company, of the first part, T. G. Kensit, for and on behalf of the said R. O., of the second part, and the defendants of the third part: after reciting that a petition had then lately been presented to the House of Commons at the instance and on behalf of the defendants, the parties thereto of the third part, for leave to bring in a bill for draining, embanking and reclaiming the slob or waste land in Lough Swilly and Lough Foyle, in the said counties of Donegal and Londonderry (being the petition thereinbefore mentioned), and that certain proceedings had been thereupon had, and that the plaintiffs and the said R. O. were then respectively seised, possessed of, or otherwise entitled to, certain lands abutting upon, or adjacent to, certain parts of the said slob or waste land in Lough Foyle aforesaid, and, in respect of such lands, then were or claimed to be entitled to the slob or waste land adjacent thereto, and to certain rights and privileges in, over and upon the same; and also reciting that the plaintiffs and the said R. O. then objected to the said intended bill, and the powers and authorities thereby sought to be obtained, as injurious to their said respective rights, and had by their agents opposed the proceedings necessary for the introduction thereof into Parliament (being the opposition by the plaintiffs and by the said R. O. respectively, thereinbefore mentioned) it was by the said agreement, for the purpose of preventing the expense of further opposition to the said intended bill, and for settling and adjusting the rights of the plaintiff's and R. O. respectively to the said slob or waste land so sought to be reclaimed, mutually agreed by and between the said parties to the said agreement, and they did thereby mutually agree each with the others and other of them, in manner following, that is to say, that the plaintiffs and the said R. O. should respectively withdraw all opposition [134] to the further progress of the bill to be brought into Parliament, and promoted by the defendants, the parties thereto of the third part, for draining, embanking and reclaiming the said slob or waste land in Lough Foyle aforesaid; that the several powers and authorities to be granted by the said bill, and the several clauses, provisoes and restrictions and stipulations therein to be contained, should be agreed upon and settled by and between the solicitors of the said parties to the said agreement before any proceedings should take place thereupon in committee of either House of Parliament to the intent and with the object that the said bill might be as perfect and beneficial for the interest of all the said parties in the reclamation of the said slob or waste land as it could be made; and that, if, in framing and perfecting the said bill, any difference or dispute should arise between the said parties, or any of them, in regard to any clause, matter or thing which any of the said parties might desire to insert or have omitted in the said bill, such difference or dispute should be referred forthwith to a certain person in the said agreement described as P. B. Brodie, Esq., of Lincoln's Inn Fields, for his opinion and determination, which should be final and conclusive on the said parties; that the plaintiffs and R. O. respectively should, by petition or otherwise, at the expense of the defendants, use all reasonable means and endeavours to promote the progress of the bill, and

procure an act of parliament to pass thereupon; that such part of the said slob or waste land as was opposite to the plaintiffs' estate, bounded by the canal on the one side and by Mr. Maxwell's property on the other, and extending to the site of the proposed embankment, as laid down in Mr. M'Neil's plan, should be allotted and given to the plaintiffs; that a proportion equal to one-tenth part of the whole of the slob or waste land opposite to the frontage of the lands of the said R. O., which should be [135] reclaimed under the powers of the intended act, should be allotted and given to the said R. O., such proportion of the said slob or waste land to be part of the slob opposite such frontage as aforesaid, and to be selected by the said R. O., and the defendants, with due regard to the convenience and interest of the said R. O., so far as the same could be accomplished consistently with an arrangement for the cession of further portions of the said slob entered into by one of the defendants, with certain other persons; it being understood that such arrangement was not to affect or prejudice any right of the said R. O.; that such respective allotments or proportions should be absolutely reserved in the said intended act to the plaintiffs and their successors, and to the said R. O. and his heirs, respectively, free and indemnified, of and from and against all costs, charges and expenses attending the embanking, draining and reclaiming of the said slob or waste land, or any other charge, stipula tion, restriction or condition whatsoever: and the defendants did also in and by the said agreement undertake and agree that they would, on the passing of the said intended act, pay to the plaintiff's the sum of 10001., and that the defendants should and would pay all costs and expenses of, and attendant upon, the application for and obtaining the said act and lastly, it was in and by the said articles agreed, by and on the part of the plaintiffs and of the said R. O. that the aforesaid proportions or allotments of the said slob or waste land, when reclaimed, which should be allotted to them respectively as aforesaid, should be received and taken by them respectively, in full of all rights and claims of the plaintiffs and the said R. O. respectively, or any of their respective tenants, claiming from or under them or him, in respect of the said slob or waste land; and the plaintiffs and the said R. O. respectively would protect and indemnify the defendants from and against any right or [136] claim derived from or under the plaintiffs and the said R. O. respectively, which should or might be made by any of their said tenants respectively in, to, or upon the said slob or waste land, or any part thereof, save and except as to any contract or engagement which might have been then entered into by the defendants, or any or either of them, in respect thereof: That after the making of the said articles of agreement, to wit, on the said 17th of March 1838, by a certain memorandum then written and indorsed on the said articles of agreement, by and with the consent and approbation of all the said parties to the said articles of agreement, and then signed by one J. M. Pearce as the solicitor and agent of the defendants, it was declared to be understood between the said parties to the said articles of agreement, that the plaintiff and the said R. O. were only severally, and not jointly, held and bound for the fulfilment of the said agreement on their own respective parts, but not for each other; and that the sum of 10001. so in the said articles of agreement mentioned to be paid to the plaintiffs was for certain costs and expenses which they the plaintiffs had been put to during the then present year, partly in a certain survey made by Mr. M'Neil, and for his plans and valuations, which survey, plans and valuations the defendants were to have the benefit of; but that they were to be forthwith returned to the plaintiffs if the said sum of 10001. should not be duly paid as mentioned in the said agreement; and it was also thereby agreed that the said agreement for withdrawing the opposition to the bill and facilitating the same as in the said articles of agreement mentioned, should only be and remain in force for the then present session of parliament 1837-1838. And that the said articles of agreement and the said memorandum, so indorsed thereon as aforesaid, having been so made as aforesaid, afterwards to wit, on the said 17th of March in the year last aforesaid, in consideration thereof, and of the pre-[137]-mises aforesaid, and also in consideration that the plaintiffs would then observe, perform, fulfil and keep all things in the said articles of agreement and memorandum contained on their part and behalf to be observed, performed, fulfilled and kept, the defendants then promised the plaintiffs that they the defendants would observe, perform, fulfil and keep all things in the said articles of agreement and memorandum contained on their part and behalf to be observed, performed, fulfilled and kept, so far as concerned the interest of the plaintiffs. That thereupon afterwards, to wit, on, &c., last afore