Page images
PDF
EPUB

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) Of the trial. · 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 qnestion 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. (8) Inhabitants of Inhabitants of counties may be witnesses in prosecutions against

be private persons or corporate bodies for not repairing bridges. admitted as witnesses in The 1 Ann. stat. 1. c. 18. s. 13. reciting that many private perprosecutions sons, or bodies politic or corporate, were of right obliged to repair against pri

decayed bridges, and the highways thereunto adjoining, and that vate persons, &c.

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 neces

sity. (a) Of the judg As a prosecution for a nuisance to a public bridge has for its ment. object the removal of the obstruction, or the effecting of the ne

cessary 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 forfe ture, 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. Of staying the Where a county indicted for not repairing a bridge had pleaded judgment. a plea which their evidence did not support, and were in conse

(u) Rex v. the Inhabitants of Ox- 6 Mod. 307. and see 1 Salk. 380. 2 Ld. fordshire, 16 East. 223.

Raym. 1174. (w) Rex v. the Inhabitants of Nor- (2) Rex v. the luhabitants of Norwich, 5 Geo. I. cited in 2 Burr. 859, wich, 1 Str. 177. 3 Chit. Crim. L. 593. 860. 1 Burn. Just. Bridges, V.

(a) Rex v. Carpenter, 2 Show. 47. (2') I Hawk, P.C. c. 77. s. 6.

(6) Ante, 335. (y) Reg. v. the Inhabitants of Wills,

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)

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 certioruri 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. (f)

[ocr errors]

(c) Rex v. the Inhabitants of Ox- 354. And see ante, 334. fordshire, 16 East. 223.

(e) Rex v. the Inbabitants of Ham(d) Rex v. the Inhabitants of Cum- worth, 2 Str. 900. I Baroard. 445. See berland, 6 T. R. 194. The case was as to the stat. 5 W. & M. ante, 334. afterwards brought before the House of) Dalt. 504. 1 Burn's Justice, of Lords by a writ of error ; and the Bridges, V. judgment was affirmed, 3 Bos. & Pul.

360

CHAPTER THE THIRTY-FIRST.

OF OBSTRUCTING PROCESS, AND OF DISOBEDIENCE TO ORDERS OF

MAGISTRATES.

SECT. I.

Of Obstructing Process.

A party oppos- THE obstructing the execution of lawful process is an offence ing an arrest against public justice of a very high and presumptuous nature; upon criminal process be

and more particularly so when the obstruction is of an arrest upon comes parti- 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. it is not felony in the party himself, c. 17. s. 1., where Hawkins submits who is attacked in order to be arrestthat it is reasonable to understand the, ed, to save himself from the arrest by books which seem to contradict this such resistance. opinion to intend no more than that

priviles themselves from ce of their havinkound necessary top as

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 & 9W.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 The arrest offence of obstructing an officer, or the process which such officer

bese which w for must be lawful

to make a parmay be about to execute, unless the arrest is lawful. And in an ty guilty of an indictment for this offence it must appear that the arrest was made obstruction. 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

(a) Rex v. Buckle, cor. Garrow, B. of Olive's crime at the time that he Gloucester Spring Ass. 1821. Olive had rendered the assistance. died by suicide soon after the defend (6) The White Friars and its enviant's attempt to prevent his arrest, so rons, the Savoy, and the Mint in Souththat the defendant could not have been wark, were of this description. effectively prosecuted as an accessory (c) 4 Bla. Com. 128, 129. after the fact to the forgery, even if it (d) Anle, p. 117, et seq. could have been proved that he knew (e) 2 Chit. Cr. L. 145, note (a).

arrest

with an

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.() 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) But where the But where the process is regular, and executed by the proper

is law officer, it will not be competent even for a peace officer to obstruct ful, though the i execution of it him, on the ground that the execution of it is attended with an be attended affray and disturbance of the peace; for it is an established prin

affray, ciple that if one, having a sufficient authority, issue a lawful comeven a peace officer must mand, it is not in the power of any other, having an equal authonot interpose rity in the same respect, to issue a contrary command; as that and obstruct

would be to legalize confusion and disorder.(h) The following the officer endeavouring to case upon an indictment for an assault and rescue proceeded upon effect it. 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 accord

ingly.(i) Of obstructing In cases where the obstruction of process by the rescue of a process by the

be party arrested is accompanied, as is usually the case, with cirparty arrested. cumstances 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. (h) i East. P. C. c. 5. s. 71. p. 304.

(g) Id. ibid. Judgment was accord (0) Anon. Exeter Sum. Ass. 1793. ingly arrested.

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

« EelmineJätka »