Barnardiston king b ware against dunce and Norton how far a prisoner may be  retake upon a escape sit at guildhall in a action of trespass and false  imprisonment for take and detain the plaintiff two several day namely the that  of march last and the that of April follow the defendant dunce plead a special  justification as to the imprisonment on the first of these day he plead that  he be a shoemaker and that the plaintiff bring he six skin of shamois leather  to sell that the defendant examine he what right he have to sell they and that  the plaintiff inform he that he sell they for one Mr dunce who happen to be  the defendant brother the defendant upon this send for his brother and he tell  he it be a imposition and for this reason this defendant send for the other  defendant Norton who be a constable and the plaintiff be take into custody by  he and carry to a spunginghouse for about three hour when the plaintiff be at  the spunginghouse it be too late to carry he before a justice of the peace it  be about of the clock on the Saturday evening or for the plaintiff to send for  his friend to show how he come by the good upon the plaintiff request he be  discharge out of custody for the present upon his agree to leave the good with  the defendant brother and promise to come again to the defendant brother on  the Monday morning follow and then to justify his right to the good but he do  not come accord to promise as to the imprisonment on the second of these day  the defendant plead that he send for the other defendant Norton to retake the  plaintiff for his have escape and to carry he before a justice of peace which  be accord do the other defendant be a constable plead not guilty as to the  whole this cause come now to be try before the chief justice the justification  on the first day be full prove and the chief justice think it to be a good one  in point of Barnardiston king b er p law but as to the second justification he  at first doubt whether what the plaintiff do can be call a escape however upon  far recollection he say that when the plaintiff be lawful in custody in the  hand of the constable he can not legal be discharge out of that custody but by  a justice of peace and therefore what the plaintiff do be a escape but then he  say he can not be retake for the escape but by a justice of peace warrant for  although for necessity sake on suspicion of felony the law allow a constable  or even a private person to arrest another that be so suspect without a  warrant yet to justify a retake for a escape he think such warrant be  necessary and therefore incline to think that the second justification be bad  however because upon the plaintiff evidence the whole transaction appear to be  do out of a honest design he direct the plaintiff to go into the proof of his  case and say he will leave the matter to the jury the plaintiff go into his  proof accord and show that though the plaintiff do not come to Mr dunce  brother Barnardiston king b at the time appoint yet afterward a friend of his  do come to he and full satisfy he he be well entitle to the good Mr dunce the  defendant be acquaint with this but Norton know nothing of it upon this the  chief justice direct the jury to find a verdict for the defendant dunce upon  the first justification against he upon the second and to find a verdict for  Norton upon the whole which they accord do