sioned officer, the execution of it by another person will be illegal. As in a case where the lieutenant of a press-gang, to whom the execution of a warrant was properly deputed, remained in King Road, in the port of Bristol, while his boat's crew went some leagues down the channel, by his directions, to press seamen. This was illegal; and when, in the furtherance of that service, one of the press-gang was killed by a mariner in a vessel which they had boarded with intent to press such persons as they could meet with, it was ruled to be only manslaughter, though no personal violence had been offered by the press-gang.(8) And upon the same principles, where the mate of a ship and a party of sailors, without either the captain who had the press-warrant or the lieutenant who was regularly deputed to execute it, impressed a man, and upon his making some resistance, one of the party struck bim a violent blow with a large stick, of which he died some days after, it was adjudged murder. (h) An.., in another case, the delegation of the power of impressing by a lieutenant (to whom the warrant had been directed) to a petty officer and several others, to whom he had given verbal orders to impress certain seafaring men, of whom he had received intelligence, was decided to be clearly bad; though it was found to be the constant usage and invariable custom of the navy for all commissioned officers, having in their custody such press-warrants, to give verbal orders to such petty officers whom they might think fit to employ upon the impress service, and that such petty officers usually acted without any other authority than such verbal orders. (i)

If a ship's sentinel shoot a man, because he persists in ap- Murder by a proaching the ship when he has been ordered not to do so, it will ship's sentinel be murder, unless such an act was necessary for the ship's safety. persons from And it will be murder, though the sentinel had orders to prevent approaching the approach of any boats; had ammunition given to him when he the ship. was put npon 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

L

(8) Broadfoot's case, Fost. 154. But (i) Borthwick's case, Dougl. 207.
if a warrant be directed to several, one The warrant enjoined all mayors, &c.
of them may execute it. Hale 459. to aid and assist the officer to whom it

(h) Dixon's case, 1 East. P. C. c. 5. was directed, and those employed by
S. 80. p. 313.: and see also Browoiog's him in the execution thereof.
case, 1 East. P. C. c. 5. s. 80. p. 312.

preservation of the ship, as if the deceased had been stirring up a

mutiny, the sentinel would have been justified. («) The authority The party taking upon himself to execute process, whether by to arrest and

writ or warrant, must be a legal officer for that purpose, or his imprison can only be exer- assistant: and if an officer make an arrest out of his proper discised by a trict, or have no warrant or authority at all, or if he execute prolegal oficer within the

cess out of the jurisdiction of the court from whence it issues, he proper district. will not be considered as a legal officer entitled to the special pro

tection of the law: and therefore, if a struggle ensue with the party injured, and such officer be killed, the crime will be only manslaughter. (k) 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. (x) It has been held, that if the constable of the vill of A. come into the vill of B. to suppress some disorder, and in the tumult the constable be killed in the vill of B., this will be only manslaughter, because he had no authority in B. as constable.(1) But it was considered, that if the constable of the vill of A. had a particular precept from a justice of peace directed to him by name, or by his name of office as constable of A., to suppress a riot in the vill of B., or to apprehend a person in the vill of B. for some misdemeanor within the jurisdiction and conusance of the justice of peace, and in pursuance of that warrant he went to

arrest the party in B., and in executing his warrant was killed in 5 Geo.

4. c. 18. B., this amounted to murder. (m) A late important statute, 5 G. 8. 6. Constables may exe

4. c. 18., recites, that warrants addressed to constables, headcute warrants boroughs, tithing-men, borsholders, or other peace officers of out of their precincts, pro

parishes, townships, hamlets, or places, in their characters of and vided it be as constables, headboroughs, tithing-men, borsholders, or other within the ju. peace officers of such respective parishes, townships, hamlets, or risdiction of the justice

places, cannot be lawfully executed by them out of the precincts granting or thereof respectively, whereby means are afforded to criminals and backing the others of escaping from justice; and then for remedy thereof

enacts, “that it shall and may be lawful to and for each and every “ constable, and to and for each and every headborough, tithing

man, borsholder, or other peace officer, for every parish, town. ship, hamlet, or place, to execute any warrant or warrants of any justice or justices of the peace, or of any magistrate or

magistrates, within any parish, township, hamlet, or place, “ situate, lying, or being within that jurisdiction for which such “justice or justices, magistrate or magistrates, shall have acted " when granting such warrant or warrants, or when backing or “indorsing any such warrant or warrants, in such and the like

manner as if such warrant or warrants had been addressed to

same.

(c) Rex v. Thomas, East. T. 1816. 13. s. 27, 30. It may be here menMS. Bayley, J.

tioned, that by 24 Geo. 2. c. 44. s. 6. (k) í Hale 457, 458, 459. 1 East. if a warrant is irregular in the frame P. C. c. 5. s. 80. p. 312, 314.

of it, the officer executing it ministe(x) Rex v. Mead and another, 2 rially is indemnified against any action Stark. C. 205.

for damages by the party injured, (1) 1 Hale 459.

though the magistrate by whom it was (m) i Hale 459.2 Hawk. P. C. Ç. issued exceeded bis jurisdiction.

66

“ such constable, headborough, tithing-man, borsholder, or other

peace officer, specially, by his name or names, and notwith-
standing the parish, township, hamlet, or place, in which such

warrant or warrants shall be executed, shall not be the parish,
“township, hamlet, or place, for which he shall be constable,
“ headborough, tithing-man, or borsholder, or other peace officer;

provided that the same be within the jurisdiction of the justice “or justices, magistrate or magistrates, so granting such warrant “ or warrants, or within the jurisdiction of the justice or justices, “ magistrate or magistrates, by whom any such warrant or war“rants shall be backed or indorsed.” (a) It may be observed, that if a warrant be directed to several persons, any of them may execute it. (n)

Where an officer endeavouring to execute process is resisted As to the leand killed, the crime will not amount to murder, unless the

gality of the
pro-

process.
cess is legal; but by this is to be understood only that the pro-
cess, whether by writ or warrant, must not be defective in the
frame of it, and must issue in the ordinary course of justice from
a court or magistrate having jurisdiction in the case. (o) There-
fore, though there may have been error or irregularity in the pro-
ceeding previous to the issuing of the process, it will be murder
if the sheriff or other officer should be killed in the execution of
it; for the officer to whom it is directed must, at his peril, pay
obedience to it. (p) And for this reason, if a capias ad satisfa-
ciendum, fieri facias, writ of assistance, or any other writ of the
like kind issue, directed to the sheriff, and he or any of his of-
ficers be killed in the execution of it, it is sufficient, upon an
indictment for this murder, to produce the writ and warrant,
without shewing the judgment or decree. (9) But it seems that
the writ, as well as the sheriff's warrant to the bailiff, must be
produced. (z) So, though the warrant of a Justice of peace be
not in strictness lawful, as if it do not express the cause with
sufficient particularity; yet, if the matter be within his jurisdic-
tion, the killing of the officer executing the warrant will be mur-
der; for it is not in the power of the officer to dispute the validity
of the warrant, if it be under the seal of the Justice. (r) It may
be observed also, that in all kinds of process, both civil and cri-
minal, the falsity of the charge contained in such process will
afford no matter of alleviation for killing the officer; for every

1

(a) It has been decided that this signed such process, and the process
statute only authorizes constables to was in the oame and under the seal of
execute the warrants therein men- his superior, aud it was process against
tioned out of their own parishes, &c. the goods only.
but does not compel them to do so. (p) Fost. 31). I Hale 457.
Gimbert v. Coyney and another, Ex- (9) Rogers's case, Cornwall Sum.
cheq. Trin. T. 1825.

Ass. 1735, ruled by Lord Hardwicke.
(n) i Hale 459.

Fost. 311, 312, ante, 474.
(0) Fost. 311. An attachment is- (z) Kex v. Mead and another, %
sued, and signed by the county clerk Stark. C. 205, an arrest upon mesne
in his own cause, is legal process: for process.
it was held, that in issuing it the (r) i Hale 459, 460. It is said, how-
county clerk acted merely in a minis- ever, that this must be understood of
terial capacity, and not as judge in a warrant containing all the essential
bis own cause. Baker's case, 1 Leach. requisites of one. 1 East. P. C. c. 5.
112.

He was the only officer who s. 78. p. 310.

Process defective in the frame of it.

man is bound to submit himself to the regular course of justice :(s) and therefore, in the case of an escape warrant, the person executing it was held to be under the special protection of the law, though the warrant had been obtained by gross imposition on the magistrate, and by false information as to the matters suggested in it. (t)

A serjeant at mace in the city of London having authority, according to the custom of the city, by entry in the porter's book at one of the counters, to arrest one Murray for debt, arrested him between five and six in the evening of the 8th November, saying at the same time, “ I arrest you in the King's name, at the “ suit of Master Radford;” but he did not produce his mace: Murray resisted, and one of his companions killed the officer. Upon a special verdict it was urged that the arrest in the night was illegal, that the serjeant should have shewn his mace, and that a custom stated in the verdict to arrest without process first against the goods was illegal : but the objections were overruled; and judgment was given for the King, and one of the prisoners was executed. (a)

But if the process be defective in the frame of it, as if there be a mistake in the name or addition of the person on whom it is to be executed; or if the name of the officer or the party be inserted without authority, and after the issuing of the process; and the officer endeavouring to execute it be killed; this will amount to no more than manslaughter in the person whose liberty. is so invaded. (u)

It appears to have been formerly a very common practice to issue blank warrunts, notwithstanding their illegality; a practice exceedingly reprehensible, and which, in the following case, afforded, to a desperate and atrocious offender, a shelter from the capital punishment which he well merited, by extenuating his crime of killing the person who assisted in executing the warrant to manslaughter. The prisoner Stockley, about Lady-day 1753, had been arrested by Welch, the deceased, at the suit of one Bourn, but was rescued; and he afterwards declared, that if Welch offered to arrest him again, he would shoot him. A writ of rescue was made out at the suit of Bourn, and carried to the office of a Mr. Deacle (who acted for the undersheriff of Staffordshire) to have warrants made out upon such writ. The custom of the undersheriff was to deliver to Deacle sometimes blank warrants, sometimes blank pieces of paper, under the seal of the office, to be afterwards filled up as occasion required. Deacle made out a warrant against Stockley upon one of these blank pieces of paper; and delivered it to Welch, who inserted therein the names of Thomas Clewes and William Davil, on the 12th July, 1753. On the 19th of September following, Welch, Davil, Clewes, and one Howard, the person to whom Stockley had declared he would shoot Welch, went to arrest Stockley on this warrant. Clewes and Davil, having the warrant, went into

warrants.

Stockley's house first, and called for refreshment; but, an alarm being given that Welch was coming, the door was locked: upon which Clewes arrested Stockley on this illegal warrant, who thereupon fell upon Clewes, and thrust him out of doors, but kept Davil within, and beat hiin very dangerously, he crying out murder. On hearing this, Welch and Howard endeavoured to get into the house : and Welch broke open the window, and had got one leg in, when Stockley shot and killed him. Stockley then absconded, and was not apprehended till December, 1771. At the Lent Assizes following he was tried for murder, when the jury expressly found that the deceased attempted to get into the house to assist in the arrest of Stockley. Howard, Clewes, and Davil, being dead, their depositions before the coroner were read, and minutes were taken of the above facts for a special verdict : but, to save expense, the case was referred to the Judges of the King's Bench; who certified that the offence amounted, in point of law, only to manslaughter. (W)

This practice of issuing blank warrants was reprobated in a Other cases as more recent case, where the sheriff having directed a warrant to to the ille, A. by name, and all his other officers, the name of another of the gality of blauk sheriff's officers B. was inserted after the warrant was signed and sealed by the sheriff; and, therefore, an arrest by B. was holden illegal. () And in another case it was considered that the arrest was illegal, where the warrant was filled up after it had been sealed. (y)

But if the name of the officer be inserted before the warrant is sent out of the sheriff's office, it seems that the arrest will not be illegal, on the ground that the warrant was sealed before the name of the officer was inserted. Banks and Powell had a warrant from the sheriff of Salop upon a writ of possession against the prisoner's house; and their names were interlined after the warrant was sealed, but before it was sent out of the office. The prisoner refused them admittance; and, on their bursting open the door, shot at Banks, and wounded him severely. Upon an indictment for wilfully shooting, upon the 43 G. 3. c. 58., objection was taken that the warrant gave Banks and Powell no authority, because their names were inserted after it was sealed. But the prisoner having been convicted, and the point reserved for the consideration of the Judges, all who were present (viz. 11) held that the conviction was right. But where a magistrate who kept by him a number of blank warrants ready signed, on being applied to, filled up one of them, and delivered it to the officer, who, in endeavouring to arrest the party, was killed; it was held that this was murder in the person killing the officer, and he was accordingly executed. (2)

It may be proper to remark a circumstance in the preceding case of Stockley, which has been thought to deserve considera

(2) Stockley's case, 1772, Serjeant (i) Rex v. Harris, East. T. 1801. Forster's MS. 1 East. P. C. c. 5. s. 78. MS. Bayley, J. p. 310, 31). The case was so decided (z) Per Lord Kenyon, in Rex v. without argument.

the Inbabitants of Winwick, 8 T. R. (1) Housin v. Barrow, 6 T. R. 122. 454, who there mentions it as a case And see a case referred to by Lord determined by the Judges some years Kenyon, 6 T. R. 123.

before. (y) Stevenson's case, 19 St. Tr. 846.

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VOL. I.