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"such constable, headborough, tithing-man, borsholder, or other
Where an officer endeavouring to execute process is resisted
(a) It has been decided that this statute only authorizes constables to execute the warrants therein mentioned out of their own parishes, &c. but does not compel them to do so. Gimbert v. Coyney and another, Excheq. Trin. T. 1825.
(n) 1 Hale 459.
(0) Fost. 311. An attachment issued, and signed by the county clerk in his own cause, is legal process: for it was held, that in issuing it the county clerk acted merely in a ministerial capacity, and not as judge in his own cause. Baker's case, 1 Leach, 112. He was the only officer who
signed such process, and the process
(p) Fost. 311. 1 Hale 457.
(4) Rogers's case, Cornwall Sum. Ass. 1735, ruled by Lord Hardwicke. Fost. 311, 312. ante, 474.
(z) Rex v. Mead and another, 2 Stark. C. 205, an arrest upon mesne process.
(r) 1 Hale 459, 460. It is said, however, that this must be understood of a warrant containing all the essential requisites of one. 1 East. P. C. c. 5. s. 78. p. 310.
As to the legality of the process.
Process defective in the frame of it.
Of the illegality of blank
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 warrants, 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
(s) 1 East. P. C. c. 5. s. 8. p. 310.
see Fost. 312.
(a) M'Allay's case, 9 Co, 65 b.
(u) 1 Hale 457. 1 Hawk. P. C. c. 31. s. 64. Fost. 312. 1 East. P. C. c. 5. s. 78. p. 310. Sir Henry Ferrers's case, Cro. Car. 371.
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 him 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)
gality of blank
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 illeA. by name, and all his other officers, the name of another of the 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. (x) 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. (i) 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. (z)
It may be proper to remark a circumstance in the preceding case of Stockley, which has been thought to deserve considera
(w) Stockley's case, 1772, Serjeant Forster's MS. 1 East. P. C. c. 5. s. 78. p. 310, 311. The case was so decided without argument.
(x) Housin v. Barrow, 6 T. R. 122. And see a case referred to by Lord Kenyon, 6 T. R. 123.
(y) Stevenson's case, 19 St. Tr. 846. VOL. I.
(i) Rex v. Harris, East. T. 1801. MS. Bayley, J.
(z) Per Lord Kenyon, in Rex v. the Inhabitants of Winwick, 8 T. R. 454, who there mentions it as a case determined by the Judges some years before.
tion, (a) namely, that he had before deliberately resolved upon shooting Welch in case he offered to arrest him again, which in all probability it might be his duty to do. It certainly resembles a former case, where, upon some officers breaking open a shopdoor to execute an escape warrant, the prisoner, who had viously sworn that the first man that entered should be a dead man, killed one of them immediately by a blow with an axe. A few of the Judges to whom this case was referred, were of opinion that this would have been murder, though the warrant had not been legal, and though the officers could not have justified the breaking open the door, upon the grounds of the brutal cruelty of the act, and of the deliberation manifested by the prisoner, who, looking out of a window with the axe in his hand, had sworn, before any attempt to enter the shop, that the first man that did enter should be a dead man. (b) But in another case, prior to either of these, where the cruelty and the deliberation were of a similar kind, the crime was considered as extenuated by the illegality of the officer's proceeding. A bailiff having a warrant to arrest a person upon a capias ad satisfaciendum, came to his house, and gave him notice; upon which the person menaced to shoot him if he did not depart: the bailiff did not depart, but broke open the window to make the arrest; and the person shot him, and killed him. It was holden that this was not murder, because the officer had no right to break the house; but that it was manslaughter, because the party knew the officer to be a bailiff. (c)
The parties whose liberty is interfered with must have due notice of the officer's business; or their resistance and killing of rity to arrest. such officer will amount only to manslaughter. (d) Thus, where
As to notice of the autho
a bailiff pushed abruptly and violently into a gentleman's chamber early in the morning, in order to arrest him, but did not tell his business, nor use words of arrest, and the party not knowing that the other was an officer, in the first surprise, snatched down sword, which hung in his room, and killed the bailiff; it was ruled to be manslaughter. (e) But it will be otherwise, if the officer and his business be known; (f) as where a man said to a bailiff who came to arrest him, "Stand off, I know you well enough, come at your peril," and, upon the bailiff taking hold of him, ran the bailiff through the body and killed him, it was held to be murder. (g) This will apply as well to a special bailiff as to a known officer: but where the party does not shew by his conduct that he is acquainted with the officer and his business, material distinctions arise as to notice of a known officer, and one whose authority is only special. With regard to private persons inter. fering, as they may do, in case of sudden affrays, in order to part the combatants, and prevent bloodshed, it is quite necessary that they should give express notice of their friendly intent; other
(a) 1 East. P. C. c. 5. s. 78. p. 311.
(d) 1 Hale 458, et sequ.
(e) 1 Hale 470, case at Newgate, 1657. And see Kel. 136. (f) Mackally's case, 9 Co. 69. (g) Pew's case, Cro. Car. 183, 1 Hale 458.
wise the persons engaged may, in the heat and bustle of the affray, imagine that they come to act as parties. (h)
the case of
With regard to such ministers of justice as, in right of their As to notice offices, are conservators of the peace, and in that right alone in- by officers interpose in the case of riots and affrays, it is necessary, in order terposing in to make the offence of killing them amount to murder, that the riots and afparties engaged should have some notice of the intent with which they interpose; for the reason which was mentioned in relation to private persons; lest the parties engaged should, in the heat and bustle of an affray, imagine that they come to take a part in it. (i) But, in these cases, a small matter will amount to a due notification. It is sufficient if the peace be commanded, or the officer, in any other manner, declare with what intent he interposes. Or if the officer be within his proper district, and known, or but generally acknowledged, to bear the office he assumes, the law will presume that the party killing had due notice of his intent; especially, if it be in the daytime. (k) In the night some further notification is necessary; and commanding the peace, or using words of the like import, notifying his business, will be sufficient. (1) Killing a watchman in the execution of his office is not the less murder for being done in the night; and the killing of an officer who arrests on civil process may be murder, though the arrest be made in the night; and in the case of an affray in the night where the constable, or any other person who comes to aid him to keep the peace, is killed, after the constable has commanded in the King's name to the keeping of the peace, such killing will be murder; for though the parties could not discern or know him to be a constable, yet if it were said at the time that he was such officer, resistance was at their peril. (a) Therefore though the saying of a learned Judge, "that a constable's staff will not make a constable," is admitted to be true; yet if a minister of justice be present at a riot or affray within his district, and in order to keep the peace produce his staff of office, or any other known ensign of authority, in the daytime when it can be seen, it is conceived that this will be a sufficient notification of the intent with which he interposes; and that, if resistance be made after this notification, and he or any of his assistants killed, it will be murder in every one who joined in such resistance. (m) For it seems, that in the case of a public bailiff, a bailiff juratus et cognitus, acting in his own district, his authority is considered as a matter of notoriety; and, upon this ground, though the warrant by which he was constituted bailiff be demanded, he need not shew it; (n) and it is sufficient if he notify that he is the
justice's warrant. 3. Because, after
(h) Fost. 310, 311.
(i) Fost. 310. Kel. 66, 115. (k) 1 Hale 460, 461. Fost. 310, 311. So in the case of Sissinghurst-house, 1 Hale 462, 463, it was resolved, that there was sufficient notice that it was the constable before the man was killed:-1. Because he was constable of the same vill. 2. Because he notified his business at the door before the (n) 1 Hale 458, 461, 583. assault, viz. that he came with the ally's case, 9 Co. 69 a.