step was like the plaintiff's, without barking; that a person resembling the plaintiff was the said person, and was seen to pass, and did pass through the said gate, within a few minutes after the said felony was committed, and in such time as a person might have come swiftly from the place where the said felony was committed, and the said person did then take to flight along the said highway; that the plaintiff, on the occasion and at the time aforesaid, or any part thereof, had not any business or right to be in the said house or close of the said Joseph Baxendale, or to pass through the said gate; that human footsteps were, on the morning of the day after the committing of the said felony, seen near the said house, on the said close, in the direction. taken by the said person who so passed through the said gate as aforesaid, which footsteps resembled the plaintiff's, and which the defendant then, and before, and at the said times, when, &c., believed to be the plaintiff's; that the said felony was committed by the said person who passed through the said gate on the occasion aforesaid: that the defendant never had any reason or ground to believe or suspect that any other person than the plaintiff was guilty of the said felony, and the defendant, before and at the said time, when, &c., being informed of and knowing the premises, and having reasonable and probable cause to suppose, suspect, and believe, and then supposing, suspecting, and believing, that the plaintiff had committed the said felony, did forthwith, to wit, at the said time, when, &c., cause the plaintiff to be arrested and taken, for the purpose of being carried before a justice of the peace, to answer the premises, and be dealt with according to law in respect thereof; that, for the purposes aforesaid, the defendant, at the said *time, when, &c., necessarily caused the plaintiff to be gently *144] assaulted and laid hold of, and to be gently compelled to go in custody, as in the declaration mentioned; that, because it was very late in the evening when the plaintiff was arrested, and an unreasonable time to take him before such justice as aforesaid, the defendant unavoidably detained him for a reasonable time, and in a reasonable manner, in the said house in the declaration mentioned, the same being a reasonable and convenient place; that the defendant did, at and within a reasonable time, and in a reasonable manner, after the said arrest, cause the plaintiff to be taken in custody before the said justice of the peace, to answer the premises and be dealt with according to law; that the defendant, on the occasion aforesaid, did no more than was necessary for the purpose of arresting the plaintiff and keeping him in safe custody, until he could be carried before a justice of the peace, to answer the premises, and be dealt with according to law; and that these were the same supposed trespasses whereof the plaintiff had above complained against the defendant,-verification.

To this plea the plaintiff replied de injuriâ; whereupon issue was joined.

The cause was tried before WILDE, C. J., at the sittings at Westminster after Michaelmas term, 1848. The facts which appeared in evidence were as follows:-The defendant occupied a large mansion in the neighbourhood of Finchley. The plaintiff had been in his service in the capacity of coachman, and consequently was well acquainted with the premises, and knew where the plate was kept. The plaintiff was dismissed from the defendant's employ in February, 1848, since which time he had resided at Gloucester Mews, London. On the 6th of March, about 9 o'clock in the evening, the butler missed a tray full of plate from a *closet in his pantry, where it had been seen [*145 safe a short time before, and, notwithstanding immediate search was made for it, it could not be found. On the following morning, the defendant's bailiff, crossing the lawn, discovered the empty tray under a tree in the shrubbery. On the afternoon and evening of the day on which the robbery took place, the plaintiff was seen at Whetstone, in the immediate vicinity of the defendant's house, and had made an appointment to meet a person at a public-house there at a later hour in the evening, but did not keep it. He returned home to Gloucester Mews, on the night in question, in a cab, the horse attached to which appeared very much distressed, as if he had come a considerable distance, and had travelled fast.

It further appeared, that the plaintiff, when he was in the service of the defendant, had the care of the dogs; that, about 9 o'clock on the evening of the robbery, the defendant's then coachman, who lived at the porter's lodge, heard a person coming from the house towards the gate; and that one of the defendant's dogs, which was in the habit of barking at strangers, was heard to "sniff" at the man, as if he recognised him, but did not bark. And a witness who saw the man come out at the gate, but was unable to identify him, described him as having had on a round jacket, resembling one which the plaintiff wore when seen that night at Whetstone.

The only fact in the plea which was not proved distinctly as alleged, was, that the plaintiff had been seen by one Osman in the neighbourhood of the defendant's house on the evening in question, shortly before the robbery, and, when accosted by Osman, requested him not to inform the defendant, or any of the family or servants, that he had seen him. The fact itself was proved, but the name of the witness was Hawley, and not Osman.

*On the part of the defendant, it was submitted, that the plea [*146 was divisible, and that it was enough to prove so much of it as would justify the suspicion that the felony had been committed by the plaintiff: and the learned judge was asked to amend the plea, by substituting the name of Hawley for that of Osman. This was objected to by the plaintiff's counsel, who said they came prepared to cross

examine Osman, but were not prepared to deal with the witness proposed to be substituted for him.

The learned judge declined to allow the amendment, reserving to the defendant leave, on motion, to question the propriety of such refusal.

The lord chief justice told the jury that they must exclude from their consideration what had been shown to have passed between the plaintiff and Hawley; and he left it to them to say whether the other facts, so far as they had been proved to their satisfaction, and which were known to the defendant at the time he caused the plaintiff to be apprehended, were sufficient to justify a reasonable man, acting with ordinary caution, and without prejudice, in suspecting that the felony had been committed by the plaintiff.

The jury returned a verdict for the plaintiff, damages 251.

Byles, Serjt., in Hilary term last, moved for a new trial, on the ground of misdirection, an improper refusal to amend the plea, and that the verdict was against evidence. Since the case of Panton v. Williams, 2 Q. B. 169 (E. C. L. R. vol. 42), 1 Gale & D. 504, all that is for the jury to determine, is, what are the facts, which of them were within the knowledge of the defendant at the time, and did the defendant act bonâ fide; the question of reasonable and probable cause *being *147] entirely a question of law for the judge. Here, the whole, the law as well as the fact, was left to the jury. The plea,-which was founded upon the case of Mure ". Kaye, 4 Taunt. 34,-was substantially proved. It was clear that a felony had been committed, and that the defendant acted with bona fides. [WILDE, C. J.-The plea was entirely proved, with the exception of the statement about Osman.] It was not necessary to prove the whole of the facts stated in the plea: it was enough to prove so much of them as showed reasonable ground for suspicion. The part which was not proved was not material: the defendant was not bound to prove the name of the person with whom the conversation was alleged to have taken place. [MAULE, J.-Would the plea be a good one, omitting the name?] That is not the true test. [MAULE, J.-I should say, that, if it is necessary to specify a particular person, the plea must in terms be proved,-like a day that is laid as matter of substance. WILDE, C. J.-Suppose the plea had alleged a confession to A. B.; would you have proved your plea, by showing a confession to C. D. ?] It would not be necessary to state in the plea the name of the person to whom the confession was made. The sole object of the plea, is, to enable the court to see whether or not the cir cumstances form a ground of reasonable suspicion. [MAULE, J.-If you substitute a different person, you prove a different ground of suspicion. You do not allege suspicion, but upon this ground as well as others.] The defendant is not bound to prove all the grounds of suspicion alleged. [MAULE, J.-In the case of a plea justifying the dismissal of a servant, the cause of dismissal alleged need not be entirely proved. But that is

not quite a parallel case: the whole is not tied together as being the ground of one suspicion.] The learned judge clearly erred in leaving *it to the jury to say whether or not there was reasonable ground [*148 of suspicion. In Wedge v. Berkeley, 6 Ad. & E. 663 (E. C. L. R. vol. 33), 1 N. & P. 665, W. W. & D. 271, the direction was in that form: but the law has since been settled the other way, in Panton v. Williams.

A rule nisi having been granted,

Wilkins, Serjt., Hawkins, and Bailey, now showed cause.-The plea is bad, and therefore, as a verdict for the defendant would not avail him, the court will not send the cause down to a new trial. In Mure v. Kaye, 4 Taunt. 34, it was held that a plea justifying an arrest by a private person, on suspicion of felony, must show the circumstances, from which the court may judge whether the suspicion was reasonable. [MAULE, J.-Suppose the plaintiff does not choose to demur? It is not for the judge at nisi prius to inquire whether the plea is good or not.] Whether there was reasonable or probable cause or not, depends upon a variety of facts, all of which must not only exist, but must have been communicated to the defendant, and have been believed by him to be true; and they must be such as furnish ground for the arrest of the plaintiff. The former being found by the jury, the latter is for the consideration of the judge. Here, the lord chief justice told the jury, in effect, that the facts alleged in the plea afforded reasonable ground of suspicion, if they, the jury, were satisfied that they were communicated to the defendant, and he bona fide acted upon them. The jury found that enough was not proved, to amount to a justification. In Davis v. Russell, 5 Bingh. 354 (E. C. L. R. vol. 15), 2 M. & P. 590, the defendant, a constable, being told by one A. that the plaintiff had robbed her, and the information being countenanced by a supposed intercepted letter which was shown to him, apprehended the [*149 *plaintiff, a respectable inhabitant of Cheltenham, at her lodgings, and took her from her bed, at night, to prison. The charge proving unfounded, the plaintiff sued the constable for the false imprisonment; and the judge at the trial directed the jury to consider whether the foregoing circumstances afforded the defendant reasonable ground to suppose that the plaintiff had committed a felony, and whether, in his situation, they would have acted as he had done: and the court held that this direction was substantially correct. In Beckwith v. Philby, 6 B. & C. 635 (E. C. L. R. vol. 13), 9 D. & R. 487, the direction was almost in terms the same as here. [WILLIAMS, J.—In Davis v. Russell, the jury found for the defendant: and, in Beckwith v. Philby the direction was not objected to. The leading case now upon this subject is Panton v. Williams, 2 Q. B. 169 (E. C. L. R. vol. 42), 1 Gale & D. 504. It was there laid down by the Exchequer Chamber, •hat, in an action for indicting maliciously and without probable cause,

if the defendant set up facts as showing probable cause, the judge must determine whether the facts, if proved, or any of them, constitute such cause the jury are only to decide whether the facts, or facts inferred from them, exist; and this, however complicated or numerous the facts may be. MAULE, J.-The defendant pleads that he had reasonable cause to suspect, and did suspect. The facts were in dispute. The lord chief justice left it to the jury to say whether the facts proved, amounted to such reasonable and probable cause as would justify a reasonably prudent man in suspecting the plaintiff. It may be that the jury found that a number of facts existed, but found for the plaintiff because they thought those facts did not amount to reasonable and probable cause. The summing up certainly does seem, implicitly, to leave the question of reasonable and probable cause to the jury.] The rule is thus laid down by Lord *DENMAN, in Turner v. Ambler, 10 Q. *150] B. 252, 260 (E. C. L. R. vol. 59): "The prevailing law of reasonable and probable cause, is, that the jury are to ascertain certain facts, and the judge is to decide whether those facts amount to such But, among the facts to be ascertained, is, the knowledge of the defendant, of the existence of those which tend to show reasonable and probable cause; because, without knowing them, he could not act upon them; and also the defendant's belief that the facts amounted to the offence which he charged; because otherwise he will have made them the pretext for prosecution, without even entertaining the opinion that he had a right to prosecute. In other words, the reasonable and probable cause must appear, not only to be deducible in point of law from the facts, but to have existed in the defendant's mind at the time of his proceeding: and, perhaps, whether they did so or not, is rather an independent question for the jury, to be decided on their view of all the particulars of the defendant's conduct, than for the judge, to whom the legal effect of the facts only is more properly referred." It was impossible that the lord chief justice could have forgotten the rule now so long and so well settled, that reasonable and probable cause is for the judge only. In substance, it is submitted, the direction was right.

cause.

The learned judge was also right in refusing to allow the proposed amendment. The plea alleged the conversation to have taken place with Osman to have permitted the name of another person to be substituted for Osman's, would clearly have prejudiced the plaintiff in the conduct of his action. In Boucher v. Murray, 6 Q. B. 362 (E. C. L. R. vol. 51), a declaration on a guarantee stated, that, in consideration that the plaintiff would make advances of money by way of loan to B., the defendant promised to repay the plaintiff such sums as he should so *advance, if B. should make default; and alleged for breach, *151] that B. made default, and that the defendant did not pay plaintiff. To this the defendant pleaded, that the plaintiff did not make the said advances to B., in manner and form, &c. At the trial, the