after stating the case delivered the opinion of the Court:
The third exception raises the question sought to be raised by the counsel for the defendant. That exception is as follows:
*314“The defendant offered to show to the jury, in justification of the defendant, that there was no malice; that after the investigation of the larceny by said Kelly, and a few seconds before the arrest of the plaintiff by said Kelly, said defendant counseled and advised with said officer Kelly, and the said officer stated to the said defendant that he was sure the said plaintiff had committed said larceny, and that when said plaintiff was arrested he, the defendant acted. bona fide upon the opinion and advice, of said Kelly, and he believed from what said Kelly told him he had just cause of complaint against said plaintiff.”
This exception presents the question whether a party who procures the arrest of a person without warrant can j ustify or excuse the act, by showing that he thus acted upon the advice of a police officer. We think not. (See 4th American Law Register, 284; Ross vs. Inness.)
This is, perhaps, all that need be said in this case, but, as the question has frequently arisen in this Court as to the authority of private persons and police officers to arrest without warrant, it may be useful to state what we deem to be the law upon the subject.
1st. As to the right of private persons to arrest. It has long been the settled law, that all persons whatever who are present when a felony is committed or a dangerous wound is given, not only may apprehend the offender, but that it is their duty to do so. 1 Arch, Cr. Pl., 21; 2 Hawk. P. C., 157; East P. C., 377; Halley vs. Mix, 350.
So any person whatever, if an affray be made to the breach of peace, may, without warrant, restrain any of the offenders in order to preserve the peace, but it would seem that even this restraint cannot be continued after the peace has been restored. See Phillips vs. Trull, 11 Johns., 406.
Neither a private person nor an officer can arrest a person charged with a crime of less degree than a felony without a warrant if not committed in their presence. An officer has no right to arrest a person without warrant guilty *315of a misdemeanor after the offense has been committed. See Proper vs. Adler, 3 Park; 2 Hawkins P. C., 121; 2 C & P., 585.
Both private persons and officers may arrest without warrant persons guilty of felonies. Upon this subject Chief Justice Savage, in the 3d Wend., 535, states the case as follows: “ My understanding of the law is, that if a felony has in fact been committed by the person arrested upon suspicion by a private individual, such individual is excused if a felony in fact was committed and there was a reasonable ground to suspicion the party arrested; but if no felony was committed by any one and a private individual is arrested without warrant, such arrest is illegal, though an officer would be justified if lie had acted upon information which he had reason to rely on.”
Justice Denny, in Rohan vs. Savior, 5 Cushing, 285, says the public safety and the due apprehension of criminals charged with heinous (felonious) offenses imperiously require that such arrests should be made without warrant by officers of the law. As to the right appertaining to private individuals to arrest without a warrant, it is a much more restricted authority, and is confined to cases of the actual guilt of the party arrested, and the arrest can only bo justified by proving such guilt; but as to constables and other peace officers acting officially the law clothes them with greater authority, and they are held to be justified if they act in making the arrest in probable and reasonable grounds for believing the party to be guilty of a felony. * * * A peace officer may, therefore, justify an arrest on a reasonable charge of felony without a warrant, although it should afterwards appear that no felony had been committed, but a private individual cannot. See Samuel vs. Payne, 1 Doug. R., 359; 2 Hale P. C., 83, 84, 89. We think the true rule of law is laid down in the case of Rohan vs. Savoir, and the ruling of the justice at the Circuit Court must be sustained.