Mich. 2 Car.
HE was indicted before a Justice of the Peace in the county, for that being of evil same, and minus honestis conversationis suit nocte vagrans and that on such a day, &c. he frequented a bawdy-house. The indictment was removed in the King’s Bench, and
Crawly, Serj.
moved that it be quashed. For the last part of the indictment being bad, it is as if he had been indicted for night-walking only; which is not a crime, for one may have occasion to go out at night. 4 H. 7. 12. Any man may arrest a night-walker and keep him until day, to be examined, ergo, a man may lawfully go out at night. But in the leet, it is to be inquired of those who vigilant nocte et interdiu dormiunt. Rastal title Robberies. 2. Watchmen may arrest a stranger going out at night, and if nothing suspicious appear, may let him go.
Doderidge, J.
The indictment is well on that part: for it is said that Willow, being of evil same, &c. suit nocte vagrans. and this is to be intended communis nocte vagrans. At common law, every man may arrest a night-walker, and Rastal says that the statute of Winton is the common law; but he shall be dismissed if nothing suspicious appears: but it is otherwise here. Even if the indictment was good in part and bad in part, it would not be quashed.
Whitlock, J. assented.
Whereupon Willow was fined 40s.