the peace of the family, although no assault had been committed, the master of the house might turn him out or call a policeman to do so; and if the plaintiff had assaulted his master and misconducted himself in the manner described by the defendant's witnesses, the defendant would be justified in giving the plaintiff in charge to the policeman, to be dealt with according to law. (a) It has sometimes happened that police officers have taken opposite parties in an affray, and the death of one of them has ensued; as in the case put by Lord Hale, where A. and B., being constables of the vill of C., and a riot or quarrel happening between several persons, A. joined with one party, and commanded the adverse party to keep the peace, and B. joined with the other party, and in like manner commanded the adverse party to keep the peace, and the assistants and party of A. in the tumult killed B. (b) This, Lord Hale says, seems but manslaughter, and not murder, inasmuch as the officers and their assistants were engaged one against the other, and each had as much authority as the other: (e) but upon this it has been remarked, that perhaps it had been better expressed to have said, that inasmuch as they acted not so much with a view to keep the peace, as in the nature of partisans to the different parties, they acted altogether out of the scope of their characters as peace officers, and without any authority whatever. (d) And in another case, Lord Hale says, that if the sheriff have a writ of possession against the house and lands of A., and A., pretending it to be a riot upon him, gain the constable of the vill to assist him, and to suppress the sheriff or his bailiffs, and in the conflict. the constable be killed, this is not so much as manslaughter; but if any of the sheriff's officers were killed, it would be murder, because the constable had no authority to encounter the sheriff's proceeding when acting by virtue of the King's writ. (e)

Some sheriff's officers having apprehended a man by virtue of a writ against him, a mob collected and endeavoured by violence to rescue the prisoner. In the course of the scuffle, which was at ten o'clock at night, one of the bailiffs having been violently assaulted, struck one of the assailants, a woman, and, as it was thought for some time, had killed her: whereupon, and before her recovery was ascertained, the constable was sent for, and charged with the I custody of the bailiff who had struck the woman. The bailiffs, on the other hand, gave the constable notice of their authority, and represented the violence which had been previously offered to them; notwithstanding which he proceeded to take them into custody upon the charge of murder; and at first, offered to take care also of their prisoner, but the latter was soon rescued from them by the surrounding mob. The woman having recovered, the bailiff's were released by the constable the next morning. Upon an indictment for an assault and rescue, Heath, J., was clearly of opinion that the constable and his assistants were guilty of the assault and rescue, and directed the jury accordingly. (f)

(a) Shaw v. Chairitie, 3 C. & K. 21. (b) 1 Hale, 460.

(c) Id. ibid.

(d) 1 East, P. C. c. 5, s. 71, p. 304.

(e) 1 Hale, 460.

(f) Anon. Exeter Sum. Ass. 1793. 1 East, P. C. c. 5, s. 71, p. 305.

There are many recent statutes giving constables special powers of arrest. The following statutes may be here noticed:

By the 24 & 25 Vict. c. 96 (larceny), s. 104, 'Any constable or peace officer may take into custody, without warrant, any person whom he shall find lying and loitering in any highway, yard, or other place, during the night, and whom he shall have good cause to suspect of having committed, or being about to commit any felony against this Act, and shall take such person, as soon as reasonably may be, before a justice of the peace, to be dealt with according to law.'

Similar provisions are contained in the 24 & 25 Vict. c. 97 (malicious injuries to property), s. 57, and the 24 & 25 Vict. c. 100 (offences against the person), s. 66.

So by the Rural Police Act, 10 & 11 Vict. c. 89, s. 15, 'any person found committing any offence punishable either upon indictment, or as a misdemeanor upon summary conviction, by virtue of this or the special Act, may be taken into custody, without a warrant, by any of the said constables, or may be apprehended by the owner of the property on or with respect to which the offence is committed, or by his servant or any person authorised by him, and may be detained until he can be delivered into the custody of a constable; and the person so arrested shall be taken, as soon as conveniently may be, before some justice to be examined and dealt with according to law: provided always, that no person arrested under the powers of this or the special Act shall be detained in custody by any constable or other officer, without the order of some justice, longer than shall be necessary for bringing him before a justice, or than forty hours at the utmost.'

By the 27 & 28 Vict. c. 47, which contains provisions as to licences to be granted to convicts, it is provided (sec. 6), that any constable or police officer may without warrant take into custody any holder of such licence whom he may reasonably suspect of having committed any offence, or having broken any of the conditions of his licence, and may detain him in custody until he can be taken before a justice of the peace or other competent magis-. trate, and dealt with according to law.' (ff)

It has been shewn that though, even in civil cases, an officer may repel force by force, where his authority to arrest or imprison is resisted, and may do this to the last extremity in cases of reasonable necessity; (g) yet if the party against whom the process has issued fly from the officer endeavouring to arrest him, or if he fly after an arrest actually made, or out of custody, in execution for debt, the officer has no authority to kill him, though he cannot overtake or secure him by any other means. (h)

The authority of an officer, in civil cases, must be regulated and limited by the writ or process which he is empowered to execute, and by the extent of the district in which he is privileged to act. It is only in the character of officer that he can proceed to arrest

(ff) See vol. i. p. 78, et seq.
(g) Ante, p. 73.

(h) 1 Hale, 481. Fost. 271.

or imprison, as no private person can of his own authority arrest in civil suits. (i)

If a ship's sentinel shoot a man, because he persists in approaching the ship when he has been ordered not to do so, it will be murder, unless such an act was necessary for the ship's safety. And it will be murder, though the sentinel had orders to prevent the approach of any boats; had ammunition given to him when he was put upon guard; and acted under the mistaken impression that it was his duty. The prisoner was sentinel on board the Achille, when she was paying off. The orders to him from the preceding sentinel were, to keep off all boats, unless they had officers with uniforms in them, or unless the officer on deck allowed them to approach; and he received a musket, three blank cartridges, and three balls. The boats pressed; upon which he called repeatedly to them to keep off; but one of them persisted and came close under the ship; and he then fired at a man who was in the boat, and killed him. It was put to the jury to find, whether the sentinel did not fire under the mistaken impression that it was his duty; and they found that he did. But a case being reserved, the judges were unanimous that it was, nevertheless, murder. They thought it, however, a proper case for a pardon; and further, they were of opinion, that if the act had been necessary for the preservation of the ship, as if the deceased had been stirring up a mutiny, the sentinel would have been justified. (0)

Warrants. The party taking upon himself to execute process, whether by writ or warrant, must be a legal officer for that purpose, or his assistant; and if an officer make an arrest out of his proper district, or have no warrant or authority at all, or if he execute process out of the jurisdiction of the Court from whence it issues, he will not be considered as a legal officer entitled to the special protection of the law; and therefore, if a struggle ensue with the party injured, and such officer be killed, the crime will be only manslaughter. (p) And it has been ruled, that homicide committed upon a bailiff, attempting to execute a writ within an exclusive liberty, such writ not having a non-omittas clause, will not amount to murder. (q) Where a warrant was directed to C. S., one of the collectors of the parish of W., the constables of the said parish, and all others His Majesty's officers,' to levy a distress, it was held that the constable of W. had no authority to execute it out of the parish. of W.; the rule of law being, that where a warrant is directed to officers, as individuals, or to individuals who are not officers, they may execute it anywhere within the extent of the magistrate's jurisdiction; but where it is directed to men by the name of their office, it is confined to the districts in which they are officers. (r) But the law as to the latter point was altered by the 5 Geo. 4, c. 18, which was repealed by the 11 & 12 Vict. c. 43, s. 36, but re-enacted by sec. 3 of that Act and the 11 & 12 Vict. c. 42, s. 10, by which warrants to apprehend may be directed either to any constable or

(i) 1 Hawk. P. C. c. 28, s. 19.

(0) R. v. Thomas, East. T. 1816. MS. Bayley, J. The prisoner was tried at Nisi Prius, 4 M. & S. 441.

(p) 1 Hale, 457, 458, 459. 1 East, P. C. c. 5, s. 80, pp. 312, 314.

(7) R. v. Mead and another, 2 Stark. C. 205. 1 Hale, 459. 2 Hawk. P. C. c. 13, ss. 27, 30.

(r) R. v. Weir, 1 B. & C. 288. 2 D. & R. 444. Sec per Lord Holt in R. v. Chandler, 1 Lord Raym. 545.

other person by name, or generally to the constable of the parish or other district within which the same is to be executed without naming him, or to such constable and all other constables or peace officers in the county or other district within which the justice or justices issuing such warrant has or have jurisdiction, or generally to all the constables or peace officers within such last-mentioned county or district, and such warrant may be executed by apprehending the offender or defendant at any place within the county, riding, division, liberty, city, borough, or place within which the justice or justices issuing the same shall have jurisdiction, or in case of fresh pursuit at any place in the next adjoining county or place and within seven miles of the border of such first-mentioned county, riding, division, liberty, city, borough or place, without having such warrant backed; and in all cases where such warrant shall be directed to all constables or other peace officers within the county or other district within which the justice or justices issuing the same shall have jurisdiction, it shall be lawful for any constable, head-borough, tithing-man, borseholder, or other peace officer for any parish, township, hamlet, or place within such county or district, to execute the said warrant within any parish, township, hamlet, or place situate within the jurisdiction for which such justice or justices shall have acted when he or they granted such warrant, in like manner as if such warrant were directed specially to such constable by name, and notwithstanding the place in which such warrant shall be executed, shall not be within the parish, township, hamlet, or place, for which he shall be such constable, tithing-man, borseholder, or other peace officer. (8)

Where, since these Acts, a search warrant was directed to the constable of Dauntsey,' and headed Wilts (to wit);' but, instead of being delivered to that constable, it was delivered to a county policeconstable appointed under the 2 & 3 Vict. c. 98, s. 3, who was attached to the district in which Dauntsey was situated, and executed by him in Dauntsey; it was held that the execution of the warrant was illegal, as it could only be executed by a constable of Dauntsey. (t)

6

The 11 & 12 Vict. c. 42, s. 11, provides for the endorsement of warrants in cases of indictable offences, and enacts that the endorsement shall be sufficient authority to the person bringing such warrant, and to all other persons to whom the same was originally directed; and also to all constables and other peace officers of the county or place where such warrant shall be so endorsed to execute the same in such other county or place.' And the 11 & 12 Vict. c. 43, s. 3, extends this provision to all warrants and commitments issued under that Act.

The 5 Geo. 4, c. 18, did not extend to the warrant of a judge of the King's Bench, but only to the warrants of persons having authority as justices of the peace within the limited jurisdictions

(s) This statement is framed from the 11 & 12 Vict. c. 42, s. 10, and 11 & 12 Vict. c. 43, s. 3, which vary in terms, but agree in substance. See 31 & 32 Vict. c. 107, entitled 'An Act to amend the law relating to

the endorsing of warrants in Scotland, Ireland, and the Channel Islands.'

(t) Freegard v. Barnes, 7 Exch. R. 827. R. v. Saunders, 36 L. J. M. C. 87; L. R. 1 C. C. R. 75, post, p. 97.

therein expressed, (u) and it is clear the new clauses are not more extensive. It may be observed, that if a warrant be directed to several persons, any of them may execute it. (v)

Upon an indictment under the 9 Geo. 4, c. 31, it appeared that a warrant issued by commissioners of bankrupt was directed to J. Adams and W. Smith our messengers and their assistants;' and that the prosecutor, who was the assistant of Smith, having obtained the warrant from him, went in pursuit of the prisoner, who, on the prosecutor overtaking him, and saying he had the warrant, wounded the prosecutor with a stone; neither Smith nor Adams being present at the time, nor anywhere near the place, where the attempt to arrest occurred: it was objected that the prosecutor was not authorised by the warrant to arrest the prisoner except in the presence, actual or constructive, of either Adams or Smith, and that the word 'assistants' only extended to persons who went with Adams and Smith to assist in taking the prisoner. Williams, J., said, 'I think it is not sufficient that the prosecutor should have been deputed to act on the warrant by the messenger; and I think also, that to authorise him to act, he must derive his authority direct from the commissioners themselves. It appears to me that the term "assistant" would apply to any person, whom Adams or Smith directed to go in aid of them. It therefore remained uncertain who those assistants might be, till either Smith or Adams had named them; and I think that is not a legal execution of the warrant, unless it be executed in the presence, actual or constructive, of either Adams or Smith, who are named in it.'(x)

Where a warrant to arrest one Galliard for disobedience to a bastardy order was directed to the constable of the township of Nantwich, in the county of Chester, and all Her Majesty's officers of the peace in and for the said county,' and was given to the superintendent of police, and by him given to the police at Coppenhall, and it had been for a time in the possession of police-constable Dyson, and he and Sharman, being on duty in uniform as constables in Coppenhall, arrested Galliard under the warrant, but they had not the warrant in their possession at the time, it being at the stationhouse at Coppenhall, in the possession of their superior officer; it was held that this arrest was illegal, as the officers were bound to have the warrant ready to be produced, if required. (y)

In the preceding case, as no point seemed to have been raised upon any omission of the police to inform Galliard of the nature of the charge, the Court said, 'It may be presumed that they did tell him, not only that they arrested him under the warrant, but what the charge was. As they were obviously police-constables, we think that they were not bound in the first instance to produce the warrant at the time they made the arrest; but that, as this was not the charge of a felony, but rather in the nature of a civil

(u) Gladwell v. Blake, 5 Tyrw. 186. (v) 1 Hale, 459.

(x) R. v. Whalley, 7 C. & P. 245. See Blatch v. Archer, Cowp. 63, where Aston, J., said, it is not necessary that the bailiff should be actually in sight, but he must be so near as to be near at hand, and acting in

the arrest.' R. v. Patience, 7 C. & P. 775. See this case, post, p. 104.

(y) Galliard v. Laxton, 2 B. & S. 363. The Court erroneously treated the 5 Geo. 4, c. 18, as not repealed. See R. v. Chapman, 12 Cox, C. C. 4, and R. v. Carey, 14 Cox, C. C. 214.