
    The Commonwealth against Deacon.
    The keeper of the prison ¡abound tore, an-estertTn™ }>;’ousht to him by a constable, and charged with a breach of the peace in his presence.
    THIS was an indictment found in the Mayor’s Court J of the city of Philadelphia, against Israel Deacon, keeper of the prison of Philadelphia, and removed to this Court by certiorari. It charged the defendant with refusing to receive into his custody, Albert Canjire, who was arrested ¡-,y John Topham, a constable of the said city, for committing a breach of the peace in his presence. The indictment was tried in December last, before Duncan J. at Nisi Prius, when a verdict was found for the Commonwealth, subject to the opinion of the Court, whether the offence described in the indictment was indictable.
    
      Kilter a, for the Commonwealth.
    The inspectors of the prison wish the question decided, whether the keeper of the prison is bound to receive into his custody, persons arrested by a constable, under the circumstances described in the indictment. There can be no doubt that the constable had a right to arrest the party, and keep him safe till he could have a hearing before a magistrate. Where is he to keep him? His own house is not safe. The authorities shew, that in every case of treason, feiony, and actual breach of the peate, the offender may be apprehended without warrant; and even though no crime were actually committed, a peace officer would be justified if he acted on the information of another. 6 Bac. Ab. 572. 1 Chitt. Cr. L. 14. 16. 40. Hawk. B. 2. Ch. 16. S. 3. A justice who detains one for further hearing, (which should not exceed three days,) should keep him in the common jail.
    Bradford, contra.
    The object is to settle the law as respects the duty of the keeper. We contend, that he is not bound to receive a prisoner without a previous warrant from a justice. Dalton, (Justice 4,) lays it down, that if any man shall make an affray or assault upon another, in the presence of the constable, or threaten to kill, beat, or hurt another, or shall be in a fury ready to break the peace, the constable may commit the offender to the stocks, or to some other safe custody for the present, as his or their quality requireth, and after, may carry them before some justice of the peace or to the jail, until they shall find surety for the peace, which the constable may take by obligation, &c. Hawkins, in treating of this subject, confines it to cases of felony or treason. It would be of dangerous consequence to say that a constable .may arrest whom he chooses to charge, and lodge him in jail. This Court has held, that common report will not justify a Judge ia issuing a warrant. 3 Binn. 38. At all events, if the constable can commit, he should do it in writing, so that the ground of it may be distinctly stated.
   Gibson J.

delivered the opinion of the Court.

Although the authorities are not decisive on this subject, they go a considerable length to establish the right of a constable to deposit a prisoner arrested without warrant, in the common jail for safe keeping, till he can be carried before a magistrate. Even a private person, who may have apprehended another for treason or felony, may convey him to the jail of the county; although it is said, the safer course is to cause him, as soon as convenience will permit, to be brought before a justice of the peace, and I cannot see any reason why a private person should not have the same authority on an arrest during an affray, which has taken place in his presence. A constable may put a party arrested for an affray in the stocks; and, in case of any offence for which the party suspected may be arrested, may convey him to the Sheriff, or jailer of the county ; although in this case also, and in every other of the kind, it is said to be the safest and best course, to carry the offenders before a magistrate as soon as circumstances will permit. This is the sum of what is found in the books on the subject; and without saying what would be the duty of a jailer in case of an arrest by a private person, I think it may fairly be inferred, he is bound to receive a prisoner offered by a constable for safe keeping. A constable is ■ a known officer, charged with the conservation of the peace, and whose business it is to arrest those who have violated it. It would therefore be strange if, while all private persons are bound to obey and assist him in suppressing an affray, an officer of justice should be at liberty to refuse the most efficient assistance of all, the confinement of the parties engaged. The officers of justice are bound to assist each other in their several departments, and to afford each other all the facilities which the public means have put in their power. There may be cases of such urgency as not to admit of delay till a warrant of commitment can be procured,-— as in the case of an affray near the jail; and there the necessity of the case would prove that the jailer ought to take charge of the parties actually engaged ; and if he is bound ■ t0 receive in one case, on the bare charge of a peace officer, I know not why he should not be in another. There is no danger to the liberty of the citizen in this ; for if the arrest anc* detention be improper, the prisoner can have instant redress by the writ of habeas corpus, and the constable may be punished by-indictment, or subjected to damages in an action of trespass. On the other hand, were the law otherwise, .the means- of securing the. persons of prisoners, and of acting with decisive effect in quelling affrays and riots, would be greatly and unnecessarily lessened. I am therefore of opinion, that the indictment is sufficient.  