BENJAMIN K. BISSELL vs. DAVID BISSELL

It is not alleged in the plea, in this case, that, Jonathan Parker had any other authority to execute the warrant, which was directed and delivered to him, than what he derived from the warrant itsell. The question then is, whether the justice was, under the circumstances, authorized in the absence of a sheriff, deputy sheriff, and constable, to require a private individual to execute the warrant ? The statute of February 9, 1791, enacts, “ every justice of “ the peace, for the preservation of the peace, or upon the “ view of any breach of the peace, or of any other transgres- “ sion of law, proper to his cognizance, done or committed, il by any person or persons whatever, shall and hereby is “ authorized and empowered, in the absence of a sheriff, u deputy sheriff, or constable, to require any person or per-44 sons to apprehend, and bring before him, any offender or “ offenders.” 1 N. H. Laws 59.

Upon this clause in the statute it seems to us extremely clear, that a justice of the peace has authority to require persons, who are not officers, to arrest offenders only in cases, where the offence is committed in his presence. The object of the statute was to enable justices, when a crime is committed in their presence, to apprehend the offender, on the spot, and prevent his escape. This is to be done, we apprehend, without a warrant; and the offender can be thus detained only until a regular complaint and warrant can be procured, and a proper officer to serve it. 2 Wilson 158, Davis’ Justice 13 and 34.—1 Mass. Rep. 494.

In this ease there is no allegation, that the plaintiff had committed any offence either in the presence of the justice, or any where else. Indeed the warrant is alleged to have been issued upon a complaint under oath made to the justice. In such a case it ⅛ clear, that the statute dees not apply.

At the common law a justice might direct his warrant to a private person. 1 Chitty's C. L. 38.—Hawkins, book 2, chap. 13, sec. 11.—Davis’ Justice 64.

But the common law, on this subject, seems never to have been adopted here. In the form of the oath prescribed in the provincial act of 4 Geo. I. chap. 63, (Province Laws 80) to be taken by justices of the peace, justices engaged themselves not to direct their warrants to the parties, but to the sheriff, his under sheriff, or deputy, constable, tythingman, or other officer, proper for the execution of the same. The statute of February 8, 1791, imposes a penalty upon sheriffs and constables for neglect to serve precepts. 1 N. H Laws 135. But no mention is made of any private person, who may neglect to*serve a precept to him directed. In Massachusetts it has been decided, that a justice of the peace cannot direct his warrant toa private pe; son. 1 Mass Rep. 488, Commonwealth vs Samuel Foster. And we are of opinion, that the plea in this case must be adjudged bad.