Ward and another against Green and another, 11 Conn. 455

Waite, J. Several questions were presennted the motion, in this case, for the consideration of the court. 1. It is claimed, that the court erred in admitting evidence that the plaintiffs came into Milford from New-Haven. on the Sabbath day, and had been riding up and down the streets, going from one public house to another, and what their course of conduct had been, for the purpose of showing, that they were travelling contrary to law. The statute declares, that no traveller shall travel on the Lord’s day, except from necessity or charity. Stat. 385. tit. 82. s. 1.

The act of riding on the Sabbath was an equivocal act. It might have been lawful or unlawful, according to the nature and object of the plaintiffs. If it was done from necessity or charity, it was lawful. The conduct of the plaintiffs immediately preceding the arrest, was, with great propriety, admitted as evidence to enable the jury to determine with what intent the plaintiffs were riding at the time of the arrest. 2. The defendants offered evidence by record, that the plaintiffs were, upon complaint made, arrested, and brought before a justice, and convicted of having unlawfully travelled on the Sabbath.

The court admitted it, for the purpose of proving the fact, that the complaint was pursued, and to repel the plaintiffs’ claim, that they were not arrested. It is difficult to perceive in what manner the defendants could have better shown the fact that they pursued their complaint, than by the production of the record, showing the defendants’ complaint against the plaintiffs, and the prosecution of it to the conviction of the plaintiffs. 3.

The court instructed the jury, that if the plaintiffs were unlawfully travelling on the Sabbath, and not from necessity or charity, the defendants might, on sight, stop and arrest them. This power is expressly given by statute.

The statute, after prohibiting certain persons from travelling on the Lord's day, provides, that “ every sheriff, constable, grand-juror and tythingman shall have power, and they are hereby directed. to apprehend and carry before a justice of the peace, all persons transgressing this act, to be dealt with according to law, provided they are taken on sight, or immediate information of others.” Stat. 385, 6. tit. 82. s. 1, 6. A previous warrant is not necessary, in such cases, to enable a grand-juror to arrest. 4.

With respect to the stopping of the plaintiffs’ horse and gig, the law upon that subject was correctly stated, by the court, to the jury. It might, in many cases, be extremely difficult to arrest a person travelling in a carriage, unless the person making it has power, in the first instance, to stop the carriage. The defendants, in this case, had a right to do all that was reasonable and necessary to enable them to make the arrest; a duty imposed upon them by law. The question whether the means used by the defendants were reasonable and necessary, was properly submitted to the jury. 5.

The court further instructed the jury, that the fact that the plaintiffs were not carried before a magistrate, by the defendants, upon the charge, made no difference, if it arose from the fact that the plaintiffs avoided the arrest. A contrary doctrine would enable the plaintiffs to take advantage of their own wrong. The defendants were required, by law, to make the arrest; and the plaintiffs were bound to submit to it. If the plaintiffs, by their own act, have prevented the defendants from doing what they endeavoured to do, they have no ground of complaint. 6.

Grand-jurors are known officers, and as such, are not bound to declare their character, nor the cause of arrest, until the party submit to the arrest, or at least demand the cause. They are required to be annually chosen ; and their duties are prescribed, by a public statute. Stat. 259, 260. tit. 45. We are. therefore, of opinion, that no error has been shown in the proceedings of the court below, in this case ; and that, consequently, a new trial must be denied. The other Judges concurred in this opinion. New trial not to be granted.