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will be shewn more fully in a subsequent Chapter, (j) the rescue, or attempt to rescue a party arrested on a criminal charge is usually punished by that mode of proceeding. And the offence of rescuing a person arrested on mesne process, or in execution after judgment, subjects the offender to a writ of rescous, or a general action of trespass vi et armis, or an action on the case; in all which damages are recoverable.(k) And it has also been the frequent practice of the courts to grant an attachment against such wrongdoers, it being the highest violence and contempt that can be offered to the process of the court.(1)
It may be mentioned in this place, that the forcibly rescuing Of rescuing goods distrained, and the rescuing cattle by the breach of the goods dispound in which they have been placed, have been considered as tra
have been considered as trained; and
as of poundoffences at common law, and made the subject of indictment. (m) breach. It has before been stated, that an indictment will lie for taking goods forcibly, if such taking be proved to be a breach of the peace : (n) but, as a mere trespass, without circumstances of violence, is not indictable, (o) it has been doubted whether even a pound-breach, which has been considered as a greater offence at common law than a rescue, (p) is an indictable offence, if unaccompanied by a breach of the peace. (9) But, on the other hand, it has been submitted that, as pound-breach is an injury and insult to public justice, it is indictable as such at common law. (r) The civil remedy, however, given by the 2 W. & M. c. 5. s. 4. will, in most cases of a pound-breach, or a rescue of goods distrained for rent, be found the most desirable mode of proceeding, where the offenders are responsible persons. That statute enacts that, upon pound-breach, or rescous of goods distrained for rent, the person grieved shall, in a special action of the case, recover treble damages and costs against the offenders, or against the owner of the goods, if they come to his use. (s)
It is laid down in the books that, if a rescue be made upon a distress, &c. for the king, an indictment lies against the rescuer. (1) And we have seen that a lessee, resisting with force a distress for rent, or forestalling or rescuing the distress, will be guilty of the offence of a forcible detainer. (u)
(j) Post. Chap. xxxiv. Of Rescue, 86. kie's Crim. Pl. 617. 2 Chit. Criin. L. (K) 6 Bac. Abr. Rescue (C). 6 Com. 201. precedents of indictments for resDig. Rescous, (D).
cuing goods distrained for rent: and (1) 6 Bac. Abr. ibid. 6 Com. Dig. Cro. Circ. Comp. 410. . 2 Chit. Crim. Rescous,(D.6). But, in order to ground L. 204, 206, precedents of indictments an attachment for a rescue, it seeins for pound-breaches. there must be a return of it by the (n) Ante, 51. Anon. 3 Salk. 187. sheriff ; at least, if it was on an arrest (0) Ante, 51. on mesne process, 6 Bac. Abr. ibid. 2 (p) Mirror, c. 2. s. 26. Hawk. P. C. c. 22. s. 34. Anon. 6 Mod. (9) 2 Chit. Crim. L. 204. note (b.) 141. And see, as to the return of the referring to 4 Leon. 12. rescue by the sheriff, 6 Com. Dig. Res. (r) 2 Chit. Crim. L. 204. note (b.) cous, (D. 4.) (D. 5.) 6 Bac. Abr Rescue, and the authorities there cited. : (E). Rex v. Belt, 2 Salk. 586. Rex v. (8) See, as to the proceedings upon Elkins, 4 Burr. 2129. Anon. 2 Salk. this statute, Bradby on Distresses, 282, 586. Rex ». Minify, 1 Str. 642. Rex et sequ. 6 Bac. Abr, Rescue (C.) v, Ely, I Lord Raym. 35. Anon. 1. (1) F. N. B. 102 G. 6 Com. Dig. Salk. 586. ] Lord Raym. 589.
Rescous, (D. 3.) (m) Cro. Cire. Comp. 409. 2 Slar (u) Ante, 289.
Of Disobedience to Orders of Magistrates.
Disobedience DisobedIENCE to an order of the justices of the peace at their to an order of sessions, made by them in the due exercise of the powers of sessions.
their jurisdiction, is an indictable offence. Thus, a party has been holden to be guilty of an indictable offence, in disobeying an order of sessions for the maintenance of his grandchildren. (10) In this case it was moved, in arrest of judgment, that, as the act of parliament (43 Eliz, c. 2. s. 7.) had annexed a specific penalty, and a particular mode of proceeding, the course prescribed by the act ought to have been adopted, and that there could be no proceeding by indictment: but, after able argument, and great deliberation, the court were of opinion that the prosecutor was at liberty to proceed at common law, or in the method prescribed by the statute ; and that there could be no doubt but that an indictment would lie at common law, for disobedience to an order of
sessions. (x) Disobedience Upon the same principle it was holden that, where an act of to an order of parliament gave power to the king in council to make a certain council.
order, and did not annex any specific punishment to the disobeying it, such disobedience was an indictable offence, punishable as
a misdemeanor at common law. (y) Disobedience Disobeying an order of one or more Justices, when duly made,
o an order of is also a common law offence, and therefore punishable by indictjustices.
ment. (z) Thus, it has been holden to be an indictable offence to disobey an order of Justices directing a highway to be widened, under the 13 Geo. 3. c. 78. (a) And it seems that an indictment will lie for disobedience to an order of Justices placing out an apprentice pursuant to the statute, when such disobedience is either by not receiving, turning off, or not providing for such apprentice. (b) So a power to remove a pauper being given to two Justices, by the 13 & 14 Car. 2. c. 12., the not removing him is a disobedience of that statute for which an indictment will lie. (c) And, by Foster, J. “ In all cases where a Justice has “ power given him to make an order, and direct it to an inferior “ ministerial officer, and he disobeys it, if there be no particular
“ remedy prescribed, it is indictable.” (d) Every person
Where such an order is made, any person mentioned in it, and required by an required to act under it, should, upon its being duly served upon order to do (w) Rex v. Robinson, 2 Burr. 799, v. Fearnley, 1 T. R. 316.
(a) Id. ibid. (x) Id. ibid. See the principles upon (6) Reg. v. Gould, i Salk. 381. ? which this decision proceeded ante, Nol. c. 33. s. 3. 47, et sequ.
(c) Rex v. Davis, 1 Bott. 338. Say. (y) Rex v. Harris, 4 T. R. 202. 2 163. 4 Burn. Just. Poor. Sect. XIX. Leach. 549.
him, lend his aid to carry it into effect. Thus where, upon a any act, should complaint made by an excluded member of a friendly society,
lend his aid to two persons, A. and B., the then stewards of the society, were effect. summoned, and an order made by two Justices that such stewards and the other members of the society should forthwith reinstate the complainant; it was holden, that though this order was not served upon A. and B. until they had ceased to be stewards, yet it was still obligatory upon them, as members of the society, to attempt to reinstate the complainant; and that their having ceased to be stewards was no justification of entire neglect on their part. (e) Lord Ellenborough, C. J., said, at the trial, “ The a order is not confined to the stewards alone, but is made upon “ all the members of the society; and the defendants were mem“bers of the society independently of their being stewards, and “ were bound, as members, to see that the order was obeyed ; “ or, at least, to have taken some steps for that purpose. As 6 members, they might have done something; as stewards in“ deed, they might, with greater facility, have enforced obe“ dience to the order; but each member had it in his power to “ lend some aid for the attainment of that object.” And when in the ensuing term a motion was made that a verdict might be entered for the defendants, on the ground that, having ceased to be stewards when the notice was served, they had not been guilty of a criminal default; the court said, that if the defendants had shewn that they did every thing in their power to restore the party, in obedience to the order, they might have given it in evidence by way of excuse. (f)
There must be personal service of an order on all persons who The order are charged with a contempt of it: and it was held, upon demurrer, should be perto be a decisive objection to an indictment for a disobedience and
sonally served. contempt of an order of sessions, that it charged a contempt by six persons of an order which was only stated to have been served on four of them. (g)
It appears to have been holden not to be necessary, in an in- of the indictdictment against a public officer for disobedience of orders, to aver ment. , that the orders have not been revoked; for the orders, being stated to have been given by those who were empowered by certain statutes to give them, must be taken to remain in force until they were revoked or contradicted. (h) But an indictment for disobeying an order of justices must shew explicitly that an order was made; and it is not sufficient to state the order by way of recital.(i) It is said to be more safe to aver that the defendant was requested
(e) Rex v. Gash and another, i cided that the magistrates of Middlesex Starkie 441.
had jurisdiction. See 33 Geo. 3. c. 54. (f) Id. ibid. The motion was also and 49 Geo. 3. c. 125. s. I. made on another ground; namely, a (g) Rex v. Kingston and others, 8 defect in the jurisdiction of the ma- East. 41. gistrates : two magistrates of the (h) Rex v. Holland, 5 T. R. 607. county of Middlesex, where the meet- 624., a case of an indictment against ings of the society were held, having the defendant for malversations in made the order, though the society office while he was one of the council had been originally established in Lon. at Madras. don, and its rules enrolled at the ses- () Rex v. Crowhurst, 2 Lord Raym. sions for London. But the court de- 1363.
to comply with the terms of the order. (k) But if the statement of the order having been served on all the defendants (which, as has been before observed, is a necessary statement) be omitted, the want of such an allegation will not be supplied by averring that they were all requested to perform the duties required by the
order. ( Legality of
On a motion to arrest the judgment upon an indictment for disconviction cannot be
obeying an order of justices for the payment of a fine upon a coninquired into viction, the court of King's Bench refused to hear any objections on motion to the conviction which did not appear upon the face of it. (m) in arrest of judgment.
Before this subject is concluded, it may be proper, shortly, to 33 Geo. 3.
notice the statute 33 Geo. 3. c. 55. s. 1, which gives power to jusc. 55. s. l. tices of the peace assembled at any special or petty sessions, upon gives a power complaint upon oath of any neglect of duty, or of any disobedience to justices, at a petty ses
ses- of any lawful warrant, or order of any justice or justices of the sions, to im- peace, by any constable, overseer of the poor, or other peace or pose fines upon parish officer, (such constable, &c. having been duly summoned) to constables,&c. for neglect of impose, upon conviction, any reasonable fine or fines, not exceedduty, and disa ing forty shillings; and, by warrant under the hands and seals of obedience to
any two or more of such justices so assembled, to direct the fines orders of justices.
to be levied by distress and sale of the offender's goods. And it is provided, that any person aggrieved by such fine, warrant, &c. may appeal to the next quarter sessions; giving, at least, ten days' notice.
(k) 2 Chit. Crim. L. 279. note (g) give any opinion upon the point. citing 1 T. R. 316. which is the case (1) Rex v. Kingston and others, 8 of Rex.v. Fearnley, where an objec- East. 41, 53. tion was taken to an indictment that it (m) Rex v. Mitton, 3 Esp. R. 200. did not contain such statement; but in the note, the court did not find it necessary to
CHAPTER THE THIRTY-SECOND.
An escape is, where one who is arrested gains his liberty before he is delivered by the course of the law. (a) And it may be by the party himself; either without force before he is put in hold, or with force after he is restrained of his liberty; or it may be by others; and this also either without force, by their permission or negligence, or with force, by the rescuing of the party from custody. Where the liberation of the party is effected either by himself or others, without force, it is more properly called an escape; where it is effected by the party himself, with force, it is called prison-breaking; and where it is effected by others, with force, it is commonly called a rescue.(b) In the present Chapter it is proposed to consider of those acts without force, which more properly come under the title of escape.
There is little worthy of remark in the books respecting an Of an escape escape effected by the party himself, without force : but the ge- by the party neral principle appears to be, that, as all persons are bound to submit themselves to the judgment of the law, and to be ready to be justified by it, those who, declining to undergo a legal imprisonment when arrested on criminal process, free themselves from it by any artifice, and elude the vigilance of their keepers, before they are put in hold, are guilty of an offence in the nature of a high contempt, and punishable by fine and imprisonment.(c) And it is also criminal in a prisoner to escape from lawful confinement, though no force or artifice be used on his part to effect such pur. pose. Thus, if a prisoner go out of his prison without any obstruction, the doors being opened by the consent or negligence of the gaoler, or if he escape in any other manner, without using any kind of force or violence, he will be guilty of a misdemeanor; and if his prison be broken by others, without his procurement or.consent, and he escape through the breach so made, he may be indicted for the escape. (d)
It was decided, upon an indictment for an escape from the House Evidence. of Correction, after conviction for a capital offence and conditional
(a) Terms de la ley.
(0) i Hale 590. 2 Hawk.P.C. c. 17, 18, 19, 20, 21.
(c) 2 Hawk. P. C. c. 17. s. 5. 4
Blac. Com. 129.
(d) I Hale 611. 2 Inst. 589, 590. Summ. 108. Staund. P.C. 30, 31. 2 Hawk. P. C. c. 18. s. 9, 10.