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Of the trial.

Inhabitants of

admitted as

witnesses in prosecutions against private persons, &c.

dence that the estate of Marsuck was part of a larger estate; which part Marsack purchased of the Lord Cadogan, who had retained the rest in his own hands, and had repaired the bridge as well before as after the purchase. (u)

The 1 Ann. st. 1. c. 18. s. 5. enacts, that all matters concerning the repairing and amending of bridges and the highways thereunto adjoining shall be determined in the county where they lie, and not elsewhere: but it seems that objection may be made to the justices where they are all interested, and that in such case the trial shall be had in the next county. (w) And no inhabitant of a county ought to be a juror for the trial of an issue, upon the question whether or not the county be bound to repair. (x) So that where the matter concerns the whole county, a suggestion may be made of any other county's being next adjacent: (y) and if the bridge lies within the county of a city, and the question is, whether the county of the city, or the county at large, ought to repair, on a suggestion of these facts on the record, the venire will be awarded into the county adjacent to the larger district. (z)

Inhabitants of counties may be witnesses in prosecutions against counties to be private persons or corporate bodies for not repairing bridges. The 1 Ann. stat. 1. c. 18. s. 13. reciting that many private persons, or bodies politic or corporate, were of right obliged to repair decayed bridges, and the highways thereunto adjoining, and that the inhabitants of the county, riding, or division, in which such decayed bridges or highways lay, had not been allowed, upon informations or indictments against such persons or bodies for not repairing them, to be legal witnesses; enacts, that in all informations or indictments in the courts of record at Westminster, or at the assizes or quarter sessions, the evidence of the inhabitants of the town, corporation, county, &c. in which such decayed bridge or highway lies shall be taken and admitted. Even before this statute such evidence had been thought admissible from necessity. (a)

Of the judg

ment.

Of staying the judgment.

As a prosecution for a nuisance to a public bridge has for its object the removal of the obstruction, or the effecting of the necessary reparations, the judgment of the Court upon a conviction will generally be regulated by the same principles as those which have been mentioned in relation to the judgment for a nuisance to a highway.(b) The stat. 1 Ann. stat. 1. c. 18. s. 4. enacts, that no fine, issue, penalty, or forfeiture, upon presentments or indictments for not repairing bridges, or the highways at the ends of bridges, shall be returned into the Exchequer, but shall be paid to the treasurer, to be applied towards the repairs. But this seems only to relate to county bridges.

Where a county indicted for not repairing a bridge had pleaded a plea which their evidence did not support, and were in conse

(u) Rex v. the Inhabitants of Oxfordshire, 16 East. 223.

(w) Rex v. the Inhabitants of Nor-
wich, 5 Geo. 1. cited in 2 Burr. 859,
860. 1 Burn. Just. Bridges, V.

(2) 1 Hawk. P. C. c. 77. s. 6.
(y) Reg. v. the Inhabitants of Wilts,

6 Mod. 307. and see 1 Salk. 380. 2 Ld. Raym. 1174.

(z) Rex v. the Iuhabitants of Norwich, 1 Str. 177. 3 Chit. Crim. L. 593. (a) Rex v. Carpenter, 2 Show. 47. (b) Ante, 335.

quence found guilty, but the evidence seemed strongly to shew that they were not liable to repair; the Court of King's Bench, upon a motion for a new trial, or for a stay of judgment against the defendants until another indictment was tried, directed a rule to be drawn up for staying the judgment upon payment of the costs of the prosecution: and Lord Ellenborough, C. J., added that, if the public exigency required it, the county must repair without prejudice to their case; and Le Blanc, J., said, that the county might proceed to indict the parties whom they contended to be liable. (c)

rari.

The 1 Ann. st. 1. c. 18. s. 5. enacts that no presentment or in- Of the certiodictment for not repairing bridges, or the highways at the ends of bridges, shall be removed by certiorari out of the county into any other court. But it has been decided that, notwithstanding these general words of the statute, an indictment for not repairing a bridge may be removed by certiorari at the instance of the prosecutor. (d) And it has been resolved that this clause of the act extends only to bridges where the county is charged to repair; and that where a private person or parish is charged, and the right will come in question, the act of 5 W. & M. c. 11. had allowed the granting a certiorari. (e) A certiorari lies to remove an order made by the justices concerning the repair of a bridge, pursuant to a private act of parliament; and the justices ought to retain the private act upon which their order is founded. (ƒ)

(c) Rex v. the Inhabitants of Oxfordshire, 16 East. 223.

(d) Rex v. the Inhabitants of Cumberland, 6 T. R. 194. The case was afterwards brought before the House of Lords by a writ of error; and the judgment was affirmed, 3 Bos. & Pul.

354. And see ante, 334.

(e) Rex v. the Inhabitants of Ham-
worth, 2 Str. 900. 1 Barnard. 445. See
as to the stat. 5 W. & M. ante, 334.
(f) Dalt. 504. 1 Burn's Justice,
Bridges, V.

CHAPTER THE THIRTY-FIRST.

OF OBSTRUCTING PROCESS, AND OF disobedienCE TO ORDERS OF
MAGISTRATES.

A party opposing an arrest

upon criminal process becomes parti

SECT. I.

Of Obstructing Process.

THE obstructing the execution of lawful process is an offence against public justice of a very high and presumptuous nature; and more particularly so when the obstruction is of an arrest upon criminal process. So that it has been holden that the party opposceps criminis. ing an arrest upon criminal process becomes thereby particeps criminis; that is, an accessory in felony, and a principal in high treason. (a)

And it should seem that the giving assistance to a person suspected of felony and pursued by the officers of justice, in order to enable such person to avoid being arrested, is an offence of the degree of misdemeanor, as being an obstruction to the course of public justice. Thus, in a late case, an indictment was preferred against the defendant for a misdemeanor in the obstruction of public justice by rendering assistance to one Olive, who was suspected of forgery and pursued by the officers of justice, in order to enable Olive to avoid being arrested. It appeared in evidence that Olive had committed a forgery, as stated in the indictment; and had afterwards, in a state of desperation, thrown himself from the top of a house, by which he was greatly hurt; and that the defendant, who was a relation and commiserated his wretched condition, conveyed him secretly on board a barge from Gloucester to Bristol, and was actively employed at the latter place in endeavouring to enable him to escape from this country in a West

(a) 4 Bla. Com. 128. 2 Hawk. P. C. c. 17. s. 1., where Hawkins submits that it is reasonable to understand the, books which seem to contradict this opinion to intend no more than that

it is not felony in the party himself, who is attacked in order to be arrested, to save himself from the arrest by such resistance.

India vessel. It also appeared that advertisements had been printed and circulated, stating the charge against Olive, and offering a large reward for his apprehension: but it was not proved that any one of these advertisements had come to the knowledge of the defendant, or that the defendant was acquainted with the particular charge against Olive, or knew that he had been guilty of forgery, as alleged in the indictment. Upon this ground the defendant was acquitted: but no other objection was taken to the indictment. (a)

Formerly, one of the greatest obstructions to public justice, both of the civil and criminal kind, was the multitude of pretended privileged places, where indigent persons assembled together to shelter themselves from justice (especially in London and Southwark) under the pretence of their having been ancient palaces of the Crown, or the like:(b) and it was found necessary to abolish the supposed privileges and protection of these places by several legislative enactments. The 8 & 9 W. 3. c. 27., 9 Geo. I. c. 28., and 11 Geo. 1. c. 22., enact that persons opposing the execution of any process in the pretended privileged places therein mentioned, or abusing any officer in his endeavours to execute his duty therein, so that he receives bodily hurt, shall be guilty of felony, and transported for seven years: and persons in disguise, joining in or abetting any riot or tumult on such account, or opposing any process, or assaulting and abusing any officer executing, or for having executed the same, are declared to be felons without benefit of clergy.(c)

In some proceedings, particularly in those relating to the execution of the revenue laws, (d) the Legislature has made especial provision for the punishment of those who obstruct officers and persons acting under proper authority. But in ordinary cases, where the offence committed is less than felony, the obstruction of officers in the apprehension of the party will be only a misdemeanor, punishable by fine and imprisonment. (e)

It should be observed that a party will not be guilty of this offence of obstructing an officer, or the process which such officer may be about to execute, unless the arrest is lawful. And in an indictment for this offence it must appear that the arrest was made by proper authority. Thus where an indictment for an assault, false imprisonment, and rescue, stated that the judges of the court of record of the town and county, &c. of P. issued their writ, directed to T.B., one of the serjeants at mace of the said town and county, to arrest W., by virtue of which T. B. was proceeding to arrest W. within the jurisdiction of the said court, but that the defendant assaulted T. B. in the due execution of his office, and prevented the arrest; the Court held that it was bad, as it did not appear that T. B. was an officer of the court; a serjeant at of Olive's crime at the time that he rendered the assistance.

(a) Rex v. Buckle, cor. Garrow, B. Gloucester Spring Ass. 1821. Olive had died by suicide soon after the defendant's attempt to prevent his arrest, so that the defendant could not have been effectively prosecuted as an accessory after the fact to the forgery, even if it could have been proved that he knew

(b) The White Friars and its envi-
rons, the Savoy, and the Mint in South-
wark, were of this description.
(c) 4 Bla. Com. 128, 129.
(d) Anle, p. 117, et seq.
(e) 2 Chit. Cr. L. 145, note (a).

The arrest must be lawful ty guilty of an obstruction.

to make a par

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mace ex vi termini meaning no more than a person who carries a mace for some one or other. And the Court also held that there could not be judgment, after a general verdict on such a count, as for a common assault and false imprisonment; because the jury must be taken to have found that the assault and imprisonment were for the cause therein stated; and that cause appeared to have been the attempt by the officer to make an illegal arrest. (f) Lord Ellenborough, C. J., said, "process ought always to be directed "to a proper known officer; otherwise, if it may be directed to any stranger, it might be resisted for want of knowledge that "the party is an officer of the court. Then, taking the whole "count together, the jury in effect find that there was an assault "and imprisonment, but committed under circumstances which "justified the defendant. For if a man without authority attempt "to arrest another illegally, it is a breach of the peace; and any "other person may lawfully interfere to prevent it, doing no more "than is necessary for that purpose; and nothing further appears "in this csse to have been done." (g)

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But where the process is regular, and executed by the proper officer, it will not be competent even for a peace officer to obstruct him, on the ground that the execution of it is attended with an affray and disturbance of the peace; for it is an established principle that if one, having a sufficient authority, issue a lawful command, it is not in the power of any other, having an equal authority in the same respect, to issue a contrary command; as that would be to legalize confusion and disorder. (h) The following case upon an indictment for an assault and rescue proceeded upon this principle. 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 it was thought for some time that he had killed her; whereupon, and before her recovery was ascertained, the constable was sent for, and charged with the 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 the constable proceeded to take them into custody upon the charge of murder, and at first offered to take care also of their prisoner; but their prisoner was soon rescued from them by the surrounding mob. The next morning, the woman having recovered, the bailiffs were released by the constable. Upon these facts, Heath, J., was clearly of opinion that the constable and his assistants were guilty of the assault and rescue, and directed the jury accordingly.(i)

In cases where the obstruction of process by the rescue of a party arrested is accompanied, as is usually the case, with circumstances of violence and assault upon the officer, the offence may be made the subject of a proceeding by indictment: and, as

(f) Rex v. Osmer, 5 East. 304.
(g) Id. ibid. Judgment was accord-
ingly arrested.

(h) 1 East. P. C. c. 5. s. 71. p. 304. (1) Anon. Exeter Sum. Ass. 1793.

1 East. P. C. c. 5. s. 71. p. 305.

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