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tion, (a) namely, that he had before deliberately resolved upon
a bailiff pushed abruptly and violently into a gentleman's chamber
(a) i East. P. C. c. 5. s. 78. p. 311. (e) i Hale 470, case at Newgate,
(c) Cook's case, 1 Hale 458. Cro. (f ) Mackally's case, 9 Co. 69. Car. 537. W. Jones 429.
(g) Pew's case, Cro. Car. 183. I (d) I Hale 458, et sequ.
1 Hawk. Hale 458. P. C. c. 31. S. 49, 50. Fost. 310.
of 1 hed
wise the persons engaged may, in the heat and bustle of the
With regard to such ministers of justice as, in right of their As to notice
, 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
(h) Fost. 310, 311.
justice's warrant. 3. Because, after
his retreat, and before the man slain,
(1) i Hale 46). Fost. 311.
constable, and arrest in the King's name. (0) And this kind of notification by implication of law will hold also in cases where public officers, having warrants, directed to them as such, to execute, are resisted, and killed in the attempt. (p) Thus, where a warrant had been granted against the prisoner by a justice of peace for an assault, and directed to the constable of Pattiskal, and delivered by the person who had obtained it to the deceased, to execute, as constable of the parish, and it appeared that the deceased went to the prisoner's house in the daytime to execute the warrant, had his constable's staff with him, and gave notice of his business, and further, that he had before acted as constable of the parish, and was generally known as such; it was determined that this was sufficient evidence and notification of the deceased being constable, although there were no proof of his
appointment, or of his being sworn into the office. (9) To what per
It is laid down in one case, that if, upon an affray, the constable, sons in an af
or others in his assistance, come to suppress it, and preserve the fray notice shall be held peace, and be killed in executing their office, it is murder in law, to extend; and although the murderer knew not the party killed, and though the of notice in the case of
affray were sudden; because he set himself against the justice of third persons
the realm. (r) It is said, however, that in order to reconcile this interposing with other authorities, it seems that the party killing must have
had implied notice of the character in which the peace officer and his assistants interfered, though not a personal knowledge of them. (s) For it is elsewhere laid down, that if there be a sudden affray, and the constable come in, and, endeavouring to appease it, be killed by one of the company who knew him, it is murder in the party killing, and in such of the others as knew the constable, and abetted the party in the fact; but only manslaughter in those who knew not the constable :(() and that others continuing in the affray, neither knowing the constable, nor abetting to his death, would not be guilty even of manslaughter. (u) But these positions do not apply to an affray deliberately engaged in by parties determined to make common cause, and to maintain it by force. (W)
It is however agreed, that if a bailiff or other officer be resisted otherwise as to the writ or process arrested. 9 Co. 69 b. against the party. Both a public and (0) 1 Hale 383. private bailiff, where the party sub- (p) 1 East. P. C. c. 5. s. 81. p. 315. mits to the arrest and demands it, are (q) Rex v. Gordon, Northamplon bound to shew at whose suit, for what Spr. Ass. 1789, cor. Thomson, B. afcause, and out of what court the pro- terwards considered at a conference of cess issues, and where returnable. 5 all the Judges, 26th June, 1789. See Co. 54 a. 9 Co. 69 a.: but it will be 1 East. P. C. c. 5. s. 81. p. 315. no excuse that he did not tell the party (r) Young's case, 4 Co. 40 b. 3 if the party resisted so as not to give Inst. 52. time for telling, 9 Co. 69 a. And in (8) I East. P. C. c. 5. s. 82. p. 316. no case is the bailiff required to part (1) i Hale 438, 446, 461. Kel. 115, with the possession of the warrant; 116. neither is a constable, whether acting (u) i Hale 446. Lord Hale adds, within or without his jurisdiction. I quod tamen quære, but (as it is said MS. Sum. 250. 1 East. P. C. c. 5. S. i East. P. C. c. 5. s. 82. p. 316.) per84. p. 319. By a known bailiff is baps over cautiously, if in truth there meant one who is commonly known were no abetment. to be so: it is not necessary that he (w) See as to the cases of that kind, should be known to the party to be ante, p. 24, 25.
in the regular discharge of his duty in executing process against a
In all cases, whether criminal or civil, where doors may be Notice before *
broken open. notification of the business, and a demand to enter on the one hand, and a refusal on the other, before the parties proceed to that extremity.(b) In a case where an outer door had been broken open by two constables and a gamekeeper, to execute a warrant granted by 22 and 23 Car. 2. c. 25. s. 2. to search for, and seize any guns, &c. for destroying game : and it appeared, that the door was broken open without the party having been previously requested to open it; the court held, that, in a case of misdemeanor, a previous demand of admittance was clearly necessary, before an outer door was broken open. Abbott, C. J. said, “it is not at present necessary to decide how far in the case of a
person charged with felony it would be necessary to make a pre“ vious demand of admittance, before you could justify breaking,
open the outer door of the house; because I am clearly of opi
(-2) 1 Hawk. P. C. c. 31. s. 57. Keb. under similar circumstances,washolden 87. 4 Co. 40 b. 1 East. P. C. c. 5. S. not to be guilty of murder. This case 82. p. 316.
is differently reported by Kelyng; and (y) 1 East. P. C. c. 5. s. 82. p. 316. Keble, reporting the same case very
(2)' I Hawk. P. C. c. 31. s. 59. 1 shortly, says,- it was adjudged, that East. P. C. c. 5. s. 82. p. 316, 317, if any casually assist against the law, where the grounds upon which the law and kill the bailiff, it is murder, espein each of these cases may be sup- cially if he knew the cause. 1 Keb. ported, and considered as reconcile. 584.; and see i East. P. C. c. 5. s. 83. able, are more fully stated.
(a) See the case of Sir C. Standlie (6) Fost. 320. 2 Hawk. P. C. c. 14. and Andrews, Sid. 159, where Andrews, $. 1. 1 East. P. C. c. 5. 5. 87. p. 324..
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“nion, that, in the case of a misdemeanor, such previous demand “ is requisite.” Bayley, J. said, generally,“ even in the execu“ tion of criminal process, you must demand admittance, before
you can justify breaking open the outer door. That point “ was mentioned in the judgment of the Court in Burdett v. “ Abbott.”(6) The question as to what should be considered as due notice was much considered in a case where two officers went to the workshop of a person, against whom they had an escape warrant; and, finding the shop door shut, called out to the person, and informed him that they had an escape warrant against him, and required him to surrender, otherwise they said they would break open the door ; and, upon the person's refusing to surrender, they broke open the door, and one of their assistants was immediately killed. Nine of the Judges were of opinion, that no precise form of words was required in a case of this kind; and that it is sufficient if the party has notice that the officer comes not as a mere trespasser, but claiming to act under a proper anthority. The Judges who differed, thought that the officers ought to have declared, in an explicit manner, what sort of warrant they had; and that an escape does not, ex vi termini, nor in the notion of law, imply any degree of force, or breach of the peace; and, consequently, that the prisoner had not due notice that they came under the authority of a warrant grounded on a breach of the peace; and that, for want of this due notice, the officers were not to be considered as acting in discharge of their duty, but as mere
trespassers. (c) Notice by pri- In the case of a private or special bailiff, either it must appear vate bailiff.
that the party knew that he was such officer, as where the party said, “ Stand off, I know you well enough; come at your peril; or, that there was some such notification thereof that the party might have known it, as by saying, “ I arrest you.” These words, or words to the like effect, give sufficient notice; and if the person using them be a bailiff, and have a warrant, the killing of such officer will be murder. (d) A private bailiff ought also to shew the warrant upon which he acts, if it is demanded : (e) and with respect to the writ or process against the party, both the public and private bailiff, in case the party submit to the arrest and make the demand, are bound to shew at whose suit, and for what cause the arrest is made, out of what court the process issues, and when and where returnable. (f) In no case, however, is he required to part with the warrant out of his own possession : for that is his
justification. (8) As to the re- It may be observed generally, that where an officer, in executing gularity of the his office, proceeds irregularly, and exceeds the limits of his auproceeding.
thority, the law gives him no protection in that excess : and if he () Launock v. Brown, 2 B. & A. rest, 1 Hale 458. And see 1 Hale 459,
where it is said that a justice of peace (c) Rex v. Curtis, Fost. 136, 137.
may issue his warrant to a private d) i Hale 461. Rex v. Mackally, person; but then such person must 9 Co. 69 b.
shew his warrant, or signify the con(e) 1 Hale 583. That is, the warrant tents of it. by which he is constituted bailiff ;
(f) i Hale 458, note (8). 5 Co. 54 which a bailiff or officer, juratus et a. 9 Co. 69 a. cognitus, need not shew upon the (8) i East. P. C. c. 5. s. 83. p. 319.