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.(7) A private bailiff ought also to show the warrant upon which he acts, if it is demanded;(m) 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 show at whose suit, and for what cause the arrest is made, out of what court the process issues, and when and where returnable.(n) In no case, however, is he required to part with the warrant out of his own possession; for that is his justification.(o)

It may be observed generally, that where an officer, in executing his office, proceeds irregularly, and exceeds the limits of his authority, the law gives him no protection in that excess; and if he be killed, the offence will amount to no more than *841] manslaughter in the person whose liberty is so invaded. (p) He should be careful, therefore, to execute process only within the *jurisdiction of the court from whence it issues; as, if it be executed out of such jurisdiction, the killing the officer attempting to enforce the execution of it will be only manslaughter.(q) But, if the process be executed within the jurisdiction of the court or magistrate from whence it is issued, it will be sufficient, though it be executed out of the vill of the constable, provided it be directed to a particular constable by name, or even by his name of office. (r) And the officer must also be careful not to make an arrest on a Sunday, except in cases of treason, felony, or breach of the peace; as, in all other cases, an arrest on that day will be the same as if done without any authority.(s) But process may be executed in the night time, as well as by day.(t)

The right of officers to break open windows or doors, in order to make an arrest, has been a subject of some litigation; but many of the points have been settled, and require to be shortly noticed. And the general rule must be kept in mind, that in every case, whether criminal or civil, in which doors may be broken open in order to make an arrest, there must be a previous 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.(u)

Where a felony has been committed, or a dangerous wound given, the party's house is no sanctuary for him; and the doors may be forced, after the notification, demand, and refusal which have been mentioned. (v) So, where a minister of justice comes armed with process, founded on a breach of the peace, doors may be broken.(w) And it is also settled, upon unquestionable authorities, that where an injury to the public has been committed, in the shape of an insult to any of the courts of justice, on which process of contempt is issued, the officer charged with the execution of such process may break open doors, if necessary, in order to execute it.(x) And the

(2) 1 Hale 461; Mackally's case, 9 Co. 69 b. (m) 1 Hale 583.

That is, the warrant by which he is constituted bailiff; which a bailiff or officer, juratus et cognitus, need not show upon the arrest: 1 Hale 458. And see 1 Hale 459, where it is said that a justice of peace may issue his warrant to a private person; but then such person must show his warrant, or signify the contents of it.

(n) 1 Hale 458, note (g); 6 Co. 54 a; 9 Co. 69 a.

(0) 1 East P. C. c. 5, s. 83, p. 319.

(p) Fost. 312.

(g) 1 Hale 458, 459; 1 East P. C. c. 5, s. 80, p. 314.

(r) 1 Hale 459; 2 Hawk. P. C. c. 13, s. 27, 30; 1 East P. C. c. 5, s. 80, p. 314. And see the new statutes. Ante, p. 824.

(s) 29 Car. 2, c. 27; 1 East P. C. c. 5, s. 88, p. 324, 325. The statute makes void all process, warrants, &c., served and executed on a Sunday, except in the cases mentioned in the text.

(t) 9 Co. 66 a; 1 Hale 457; 1 Hawk. P. C. c. 31, s. 62.

(u) Fost. 320; 2 Hawk. P. C. c. 14, s. 1. Ante, p. 839.

(v) Fost. 320; 1 Hale 459. And see 2 Hawk. P. C. c. 14, s. 7, where it is said that doors may be broken open, where one known to have committed a treason or felony, or to have given another a dangerous wound, is pursued, either with or without a warrant, by a constable or private person.

(w) Fost. 320; 1 Hale 459; 2 Hawk. P. C. c. 14, s. 3; Curtis's case, Fost. 135. (z) Burdett v. Abbott, 14 East 157, where the process of contempt proceeded upon the

officer may act in the same manner upon a capias utlagatum, or capias pro fine,(y) or upon an habere facias possessionem.(z) The same force may be used where a forcible entry or detainer is found by inquisition before justices of peace, or appears upon their view;(a) and also where the proceeding is upon a warrant of a justice of peace, for levying a penalty on a conviction grounded on any statute, which gives the whole or any part of such penalty to the King.(b) But in this latter case the *officer executing the warrant must, if required, show the same to the person

whose goods and chattels are distrained, and suffer a copy of it to be taken.(c) [*842

But though a felony has been actually committed, yet a bare suspicion of guilt against the party will not authorize a proceeding to this extremity, unless the officer comes armed with a warrant from a magistrate, grounded on such suspicion. (d) For where a person lies under a probable suspicion only, and is not indicted, (e) it is said to be the better opinion, that the breaking open doors without a warrant, in order to apprehend him, cannot be justified;(f) or must at least be considered as done at the peril of proving that the party, so apprehended on suspicion, is guilty.(g) But a different doctrine appears to have formerly prevailed upon this point; by which it was held, that if there were a charge of felony laid before the constable, and reasonable ground of suspicion, such constable might break open doors, though he had no warrant. (h) A plea justifying the entering a house without warrant, the door being open, on suspicion of felony, ought distinctly to show the purpose for which the house was entered, viz., either to search for the stolen property or to arrest the plaintiff, as well as that there was reason to believe that the stolen property or the plaintiff was there.(i)

It is said, that if there be an affray in a house, the doors of which are shut, whereby there is likely to be manslaughter or bloodshed, and the constable demand entrance, and be refused by those within, who continue the affray, the constable may break open the doors to keep the peace, and prevent the danger :(k) and it is also said, that if there be disorderly drinking or noise in a house at an unreasonable time of night, especially in inns, taverns, or ale-houses, the constable or his watch demanding entrance, and being refused, may break open the doors to see and suppress the disorder.() And further, that where an affray is made in a house in the view or hearing of a constable, or where those who have made an affray in his presence fly to a house, and are immediately pursued by him, and he is not suffered to enter in order to suppress the affray in the first case, or to apprehend the affrayers in either case, he may justify breaking open the doors. (m)

But this mode of proceeding, by breaking the doors of the party, is founded upon the necessity of the measure for the public weal, and is not permitted to the particular interest of an individual. In civil suits, therefore, the principle that a man's house is his castle, for safety and repose to himself and his family, is admitted; and, accordingly, in such cases, an officer cannot justify the breaking open an outward door or window to execute the process. (n) If he do so, he will be a trespasser; and if the occupier of the house resist him, and in the struggle kill him, the offence will be only manslaughter;(o) for if the occupier of the house do not know him. to be an officer, and have reasonable ground of suspicion that the house is [*843 broken with a felonious intent, the killing such officer will be no felony.(p)

It has been considered, however, that this rule of every man's house bein ghis castle has been carried as far as the true principles of political justice will warrant, order of the House of Commons; and see Semayne's case, Cro. Eliz. 909; and Brigg's case, 1 Rol. Rep. 336.

(y) 1 Hale 459; 2 Hawk. P. C. c. 14, s. 4.

(a) 2 Hawk. P. C. c. 14, s. 6.

(c) 27 Geo. 2, c. 20.

(e) Ante, p. 801.

(g) 1 East P. C. c. 5, s. 87, p. 322.

(z) 1 Hale 458; 5 Co. 95 b. (b) Ibid. 5.

(d) Fost. 321.

(ƒ) 2 Hawk. P. C. c. 14, s. 7.

(h) 1 Hale 583; 2 Ibid. 92, 13 Ed. 4, 9 a.

(1) Smith v. Shirley, 3 C. B. 142 (54 E. C. L. R.).

(k) 2 Hale 95.

(7) Ibid.; and it is added, “This is constantly used in London and Middlesex."

see ante, p. 409, et seq.

(m) 2 Hawk. P. C. c. 14, s. 8.

(n) Cook's case, Cro. Car. 537; Fost. 319.

(p) 1 Hale 458; 1 East P. C. c. 5, s. 87, p. 321, 322.

(0) Ibid.

But

VOL. 1.-43

and that it will not admit of any extension. (q) It should be observed, therefore, that it will apply only to the breach of outward doors or windows; to a breach of the house for the purpose of arresting the occupier or any of his family; and to arrests in the first instance.

Outward doors or windows are such as are intended for the security of the house against persons from without endeavoring to break in.(") These are protected by the privilege which has been before mentioned; but if the officer find the outward door open, or it be opened to him from within, he may then break open any inward door, if he find that necessary in order to execute his process. (s) Thus, it has been holden that an officer, having entered peaceably at the outer door of a house, was justified in breaking open the door of a lodger, who occupied the first and second floors, in order to arrest such lodger.(t) And in a late case it was decided, that a sheriff's officer in execution of mesne process, who had first gained peaceable entrance at the outer door of the house of A., might break open the windows of the room of B., a person residing in such house; B. having refused to open the door of the room, after being informed by the officer that he had a warrant against him.(u) But it seems that if the party, against whom the process is issued, be not within the house at the time, the officer can only justify breaking open inner doors in order to search for him, after having first demanded admittance.(v) Though in case the person, or the goods of the defendant, are contained in the house which the officer has entered, he may break open any door within the house without any further demand.(w) If, however, the house is the house of a stranger, and not of the defendant, the officer must be careful to ascertain that the person or the goods (according to the nature of the process) of the defendant are within, before he breaks open any inner door; as, if they are not, he will not be justified.(x)

In a case where an outward door was in part open (being divided into two parts, the lower hatch of which was closed, and the upper part open), and the officer put his arm over the hatch, to open the part which was closed, upon which a struggle ensued between him and a friend of the prisoner, and, the officer prevailing, the prisoner shot at and killed him; it was held to be murder.(y)

*The privilege only extends to the dwelling-house, but it should seem that *844] within that term are comprehended all such buildings as are within the curtilage, and as are considered as parcel of the dwelling-house at common law. In trespass the defendant justified an entry into a close and breaking into a barn under a fieri facias; the plaintiff replied that the door of the barn was shut, and it was adjudged upon demurrer that in such a case the sheriff can break open the door of the barn without a request, in order to take the goods; for it shall be intended to be a barn in a field, and not a barn which is parcel of a house. For the Court agreed that if the barn had been adjoining to and parcel of the house, it could not be broken open.(z)

This personal privilege of an individual, in respect to his outer door or window, is confined also to cases where the breach of the house is made in order to arrest the occupier or any of his family, who have their domicile, their ordinary residence, there for if a stranger, whose ordinary residence is elsewhere, upon a pursuit, take refuge in the house of another, this is not the castle of such stranger, nor can he

(9) Fost. 319, 320.

(s) 1 Hale 458; 1 East P. C. c. 5, s. 87, p. 323.

(1) Lee v. Gansel, Cowp. 1.

(r) Fost. 320.

(u) Lloyd v. Sandilands, 2 Moore 207; 8 Taunt. 250 (4 E. C. L. R.). See Hodgson . Towning, 5 Dowl. P. R. 410.

(v) Ratcliffe v. Burton, 3 Bos. & Pull. 223.

(w) Per Gibbs, J., in Hutchinson v. Birch and another, 4 Taunt. 619.

(x) Cook v. Birt, Taunt. 765 (1 E. C. L. R.); Johnson v. Leigh, 6 Taunt. 240 (1 E. C. L. R.). Post, p. 845.

(y) Baker's case, 1 Leach 112; 1 East P. C. c. 5, s. 87, p. 323. It should be observed that in this case there was proof of a previous resolution in the prisoner to resist the officer, whom he afterwards killed in attempting to attach his goods in his dwellinghouse, in order to compel an appearance in the county court. The point reserved related to the legality of the attachment. Ante, p. 827.

(z) Penton v. Browne, 1 Sid. 186. See the authorities as to what is comprehended under the term dwelling-house at common law, under the titles of Burglary and Arson.

claim in it the benefit of sanctuary.(a) But it should be observed, that in all cases where the doors of strangers are broken open, upon the supposition of the person sought being there, it must be at the peril of finding him there; unless, as it seems, where the parties act under the sanction of a magistrate's warrant (b) And an officer cannot even enter the house of a stranger, though the door be open, for the purpose of taking the goods of a defendant, but at his peril as to the goods being found there or not; and if they be not found there, he is a trespasser.(c) A sheriff's officer is not justified in entering and searching the house of a stranger, though the door be open, for the purpose of arresting a defendant under a capias ad satisfaciendum, although the defendant may have resided there immediately before the entry, and although the officers have reasonable cause *to suspect that the defendant is in the house; if it turned out that he was not in the [*845 house at the time; for a party who enters the house of a stranger to search for and arrest a defendant, can be justified only by finding him there. But if a sheriff enters the house of the defendant for the purpose of arresting him or taking his goods, he is justified if he has reasonable grounds for believing that the party or his goods are there.(d) And it has been decided that a sheriff cannot justify breaking the inner doors of the house of a stranger, upon suspicion that a defendant is there, in order to search for such defendant, and arrest him on mesne process.(e)

And the privilege is also confined to arrests in the first instance. For if a man, being legally arrested, (f) escape from the officer, and take shelter, though in his own house, the officer may, upon fresh suit, break open doors in order to retake him, having first given due notice of his business, and demanded admission, and been refused.(g) If it be not, however, upon fresh pursuit, it seems that the officer should have a warrant from a magistrate: and it should be observed, that the officer will not be authorized to break open doors in order to retake a prisoner in any case where the first arrest has been illegal. (h) Therefore, where an officer has made an illegal arrest on civil process, and was obliged to retire by the party's snapping a pistol at him several times, and afterwards returned again with assistants, who attempted to force the door, when the party within shot one of the assistants: it was ruled to be only manslaughter.(i)

(a) Fost. 320; 5 Co. 93. Mr. Smith, in his learned note to Semayne's case, 1 Sm. Lead. Cas. 45, after citing the observations of Lord Loughborough in Sheere v. Brookes, 2 H. B!. 120, says, "it seems to follow from this that, as a house in which the defendant habitually resides is on the same footing with respect to executions as his own house, the sheriff would not be justified in breaking the outer door of such a house, even after demand of admittance and refusal."

(b) 2 Hale 103; Fost. 321; 1 East P. C. c. 5, s. 87, p. 324. Mr. Smith, in the same note, says, "there may, perhaps, be another case in which the sheriff might justify entering the house of a stranger upon bare suspicion, viz., if the stranger were to use fraud, and to inveigle the sheriff into a belief that the defendant was concealed in his house for the purpose of favoring his escape, while the officers should be detained in searching, or for any other reason, it might be held that he could not take advantage of his own deceit so as to treat the sheriff who entered under the false supposition thus induced as a trespasser; or, perhaps, such conduct might be held to amount to a license to the sheriff to enter." It certainly is reasonable in such a case that the party should not be permitted to show that in fact the defendant was not concealed in this house, and this would be in accordance with the principles established by Pickard v. Sears, 6 A. & E. 469 (33 E. C. L. R.); Heane v. Rogers, 9 B. & C. 586 (17 E. C. L. R.); Kieran v. Sanders, S A. & E. 515 (33 E. C. L. R.), and Gregg v. Wells, 10 A. & E. 90 (37 E. C. L. R.), in which last case it was held that a party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact, which he can contradict, cannot afterwards dispute that fact in an action against the person whom he has himself assisted in deceiving. C. S. G.

(c) Cooke v. Birt, 5 Taunt. 765 (1 E. C. L. R.).

(d) Morrish v. Murrey, 13 M. & W. 52.

(e) Johnson v. Leigh, 6 Taunt. 246 (1 E. C. L. R.), ante, p. 843.

(f) Laying hold of the prisoner, and pronouncing the words of arrest, is an actual arrest: Fost. 320. But bare words will not make an arrest; the officer must actually touch the prisoner: Genner v. Sparkes, 1 Salk. 79; Berry v. Adamson, 6 B. & C. 528 (13 E. C. L. R.)

(g) Fost. 320; Genner v. Sparkes, 1 Salk. 79; 1 Hale 459; 2 Hawk. P. C. c. 14, s. 9. (h) 1 East P. C. c. 5, s. 87, p. 324.

(i) Stevenson's case, 10 St. Tr. 462.

In all cases where the officer or his assistants, having entered a house in the execution of their duty, are locked in, they may justify breaking open the doors to regain their liberty.(k) So where a sheriff being lawfully in a house makes a lawful seizure of the goods of the owner of the house, and cannot take the goods out of the house without opening the outer door, and neither the owner nor any one else is there so that he can request them to open the door, he may break the door open to take out the goods.(1)

It has been deemed a question worthy of great consideration how far third persons, especially mere strangers, interposing in behalf of a party illegally arrested, are entitled to insist upon the illegality of the arrest, in their defence, as extenuating their guilt in killing the officer.

The point was raised in the following case :-One Bray, who was a constable of St. Margaret's parish in Westminster, came into the parish of St. Paul, Covent Garden, where he was no constable, and consequently had no authority;(m) and there took *up one Anne Dekins, under suspicion of being a disorderly person, but who *846] had not misbehaved herself, and against whom Bray had no warrant. The prisoners came up; and though they were all strangers to the woman, drew their swords, and assaulted Bray, for the purpose of rescuing the woman from his custody; upon which he showed them his constable's staff, declared that he was about the Queen's business, and intended them no harm. The prisoners then put up their swords, and Bray carried the woman to the round-house in Covent Garden. A short time afterwards, the woman being still in the round-house, the prisoners drew their swords again, and assaulted Bray, on account of her imprisonment, and to get her discharged. Bray called some persons to his assistance, to keep the woman in custody, and to defend himself from the violence of the prisoners; upon which a person named Dent came to his assistance; and before any stroke received, one of the prisoners gave Dent, while assisting the constable, a mortal wound. This case was elaborately argued; and the Judges were divided in opinion; seven of them holding that the offence was manslaughter only, and five that it was murder.(n) The seven Judges who held that it was manslaughter thought that it was a sudden action, without any precedent malice or apparent design of doing hurt, but only to prevent the imprisonment of the woman, and to rescue her who was unlawfully restrained of her liberty; and that it could not be murder, if the woman was unlawfully imprisoned ;(o) and they also thought that the prisoners, in this case, had sufficient provocation; on the ground that if one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people, out of compassion, and much more where it is done under a color of justice ;(p) and that, where the liberty of the subject is invaded, it is a provocation to all the subjects of England. But the five judges who differed thought that, the woman being a stranger to the prisoners, it could not be a provocation to them; otherwise if she had been a friend or servant; and that it would be dangerous to allow such a power of interference to the mob.

The case of Hugget, and also that of Sir Henry Ferrers, appear to have been relied upon in support of the argument of the seven Judges, who in the preceding case held the offence to be manslaughter. Hugget's case, in the fuller report of it,(9) appears to have been thus:-Berry and two others pressed a man without any warrant for so doing; to which the man quietly submitted, and went along with them.

(k) 2 Hawk. P. C. c. 14, s. 11; 1 East P. C. c. 5, s. 87, p. 324. (1) Pugh v. Griffith, 7 A. & E. 827 (34 E. C. L. R.).

(m) One judge only thought that Bray acted with authority, as he showed his staff, and that, with respect to the prisoners, he was to be considered as constable de facto. (n) Reg. v. Tooley, 2 Lord Raym. 1296. "That case has been overruled," per Alderson, B.: Rex v. Warner, R. & M. C. C. R. 385; and per Pollock, C. B.; Reg. v. Davis, I L. & C. 64.

(0) For this Young's case, 4 Co. 40, was cited, and Mackally's case, 9 Co. 65.

(p) In Rex v. Osmer, 5 East 304, ante, p. 571, Lord Ellenborough, C. J., said, "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."

(7) Hugget's case, Kel. 59.