had done more than was necessary, or if he struck any blow, it would in case of death have been manslaughter merely, and they must acquit the prisoner. R. v. Bourne, 5 Car. § P. 120. The rule however is not confined to those who are present, so as to have ocular proof of the fact, or to those who first come to the knowledge of it; for in these cases, if fresh suit be made, and à fortiori if hue and cry be levied, all who join in aid of those who began the pursuit, are under the same protection of the law as the others are, and stand precisely on the same footing. Fost. 309, 310. A robbery is committed, the country rise and pursue the robbers, who turn and make resistance, and in the struggle one of the robbers is killed, this, on the part of the pursuers, is justifiable homicide; but if one of the pursuers be killed by the robbers, it is murder. Fost. 310. 1 Hale, 464. In arresting upon suspicion, however, a private person had need to be cautious, unless it be upon hue and cry. Upon hue and cry raised or levied against a man by name, no doubt, a private person may arrest the alleged offender, 2 Hawk. c. 12, s. 4, although no other circumstance of suspicion attach to him; 2 Inst. 52; and the killing of the private person would in that case be murder. Fost. 318. But otherwise, a private person, arresting a man on suspicion of having committed a felony, however well grounded the suspicion may be, will not be protected, if in fact no felony was committed; Fost. 318; and see Beckwith v. Philby, 6 B. § C. 635; and ante, p. 25; or if a felony were committed, but not by the party arrested or attempted to be arrested, the death of either, the party arresting or arrested, would be manslaughter. Fost. 318. So that a private person should be cautious not to interfere, where the law does not allow of his doing so. Where a man was suspected of stealing turnips, and the owner ordered his servant to watch him, who apprehended him shortly afterwards in an adjoining field with turnips in his possession; the servant took him to the farmer's, and was taking him thence to a constable's, when he drew a knife and wounded the servant being indicted for this, it was objected that the servant had no legal authority to arrest the prisoner, the stat. 7 & 8 G. 4, c. 29, s. 63, giving him that authority only in case the prisoner was found stealing the turnips (see ante, p. 21); consequently if death had ensued, the offence would have been manslaughter only, not murder: Vaughan, B., was of that opinion, and also that the servant had no right to take the prisoner to the farmer's or constable's, but should have taken him directly before a magistrate; the prisoner was acquitted. R. v. Curran, 3 Car. & P. 397. Where a private person is acting in aid of a constable, he is entitled to the same protec tion as a peace officer, eundo, morando et redeundo. R. v. Phelps, 1 Russ. 534.

Also in civil suits, the officer who executes the process of the courts, is entitled to the same protection, as an officer of justice in criminal cases. Fost. 310; 1 Hawk. c. 31, s. 61. He must however be a legal officer, that is to say, he must be the person to whom the writ or warrant is directed, or his assistant, and he must be within his proper district at the time he executes or attempts to execute it; otherwise, if in a struggle he be killed, it is manslaughter only. 1 Hale, 457–459. The writ or process also must be legal, that is, it must not be defective in the frame of it, and must have issued in the ordinary course of justice from a court or magistrate having jurisdiction in the case. Fost. 311; see 1 Hawk. c. 31, 8. 62. 64. There may have been error or irregularity in the proceeding previously to the issuing of the process; but if the sheriff or minister of justice be killed in the execution of it, it will be murder, for the officer to whom it is directed must execute it at his peril. Id. And therefore if a capias ad satisfaciendum, fieri facias, writ of assistance, or any other writ of the like kind, issue, directed to the sheriff, and he or any of his officers be killed in the execution of it, it is sufficient upon an indictment for this murder, to produce the writ and warrant, without showing the judgment or decree. Roger's case, per Ld. Hardwick, Fost. 311, 312. And the officer must also give the party notice of his authority, to bring himself thus within the protection of the law, 1 East, P. C. 319, s. 84, unless indeed the party already know it. Id. 8. 85. Where a sheriff's officer, early in the morning, pushed abruptly and violently into a gentleman's chamber, in order to arrest him, but not telling his business, nor using words of arrest, and the gentleman, not knowing he was an officer, under the first surprise, took down a sword which hung in the chamber, and stabbed him: this was holden to be manslaughter. 1 Hale, 470; Fost. 298, 299. In a late case, where a sheriff's officer was in possession of goods under an execution, and the owner and others gave him an excessive quantity of spirits to make him drunk, and then put him into a hackney carriage, with orders that he should be driven about the streets, and after being so driven about two hours, he was found to be dead: Parke, B., told the jury that if they were satisfied that the parties made the deceased drunk for the unlawful purpose of preventing the completion of the execution, or, he being drunk, they put him into the carriage for the like purpose, it was manslaughter. R. v. Packard et al., Car. & M. 236.

So, in criminal cases, where an officer or private person interferes to put a stop to an affray or riot, it is necessary that the parties concerned in the affray or riot should have notice of the intent with which such person interferes, to make the

offence of killing him amount to murder; Fost. 310; otherwise it will be manslaughter only. 1 Hawk. c. 31, s. 49. And the like in all cases of apprehension for offences, except where the party is apprehended in the actual commission of the offence, or on fresh pursuit. If a constable be thus acting within his own district, in the day time, it will be sufficient if he produce his staff, for he is presumed to be known there; but in the night time, he must do more, he must command the peace, or give other notification of his business. Fost. 310, 311. Other peace officers, both at day and night, must command the peace, or in other manner declare the intention with which they interfere. Fost. 310. And private persons must give express notice of their friendly intent. Fost. 311. If this be done, killing the party so interposing will be murder. But in all other cases except riot and affray, where a man is taken or attempted to be taken whilst in the actual commission of the offence, or on fresh pursuit, it is not necessary to give him notice, for the nature of the case itself must sufficiently indicate to him the reason why he is apprehended. R. v. Howarth, Ry. & M. 207; R. v. Payne, Id. 378; R. v. Davis, 7 Car. & P. 785.

In acting under a warrant of a justice of the peace, if it be in a matter in which the justice had jurisdiction, the officer is justified and fully protected by law in executing it, although it may have been obtained by gross imposition on the magistrate, and by false information in respect of the matters suggested by it. Fost. 312. If A., a police officer, have a warrant from a proper magistrate for the apprehension of B. by name, upon a charge of felony,-or if B. stand indicted for felony,or if the hue and cry be levied against B. by name:-in these cases, if B., though innocent, fly, or turn and resist, and in the pursuit or struggle be killed by A., or any person joining in the hue and cry, the person killing will be indemnified; but if A. or any person joining in the hue and cry be killed by B. or any of his accomplices in that outrage, it will be murder; for A. and those joining with him were, in this instance, in the discharge of a duty which the law required from them, and liable to punishment in case they wilfully neglected it. Fost. 318. Where a process in the nature of a capias ad satisfaciendum issued from the town court of Newcastle-uponTyne against one Cowling, directed to Dixon, a serjeant at mace, and he got another serjeant at mace of the name of Surtees to execute it for him; Surtees made the capture, but Cowling escaped; Dixon then prevailed on the officer of the court to insert Surtees' name in the process, and this being done, Surtees obtained an escape warrant from a magistrate, to apprehend Cowling, upon an information on oath that by virtue of this process to him and Dixon directed, he arrested Cowling, who by wrestling and blows got out of his hands,

and escaped; with this escape warrant Dixon, Surtees, and one Atkinson went to the workshop of Cowling, which they found shut, but they called on Cowling (who with one Curtis was within), demanding admittance, saying that they had an escape warrant against him, and that if the door were not opened, they would break it open; Cowling, however, refused to surrender, and Curtis opening a window, with an axe in his hand, swore that the first man that entered should be a dead man; the officers then broke open the door, and Atkinson entering first, Curtis hit him a blow with the axe on the side of the head and killed him : Curtis being indicted for murder, and found guilty, the case was reserved for the opinion of the judges, and ten of the twelve held clearly that it was murder; the warrant was good though obtained upon an information that was false, and the officers had a right to break open the door, after having demanded admittance, and being refused; besides, Curtis's coming to the window, showing the axe, and declaring that the first person who entered should be a dead man, showed that his subsequent act was deliberate as well as cruel, and the offence therefore was clearly murder. R. v. Curtis, Fost. 135. Where one Pratt obtained a warrant, directed to the constable of Pattishall, to apprehend Gordon for an assault, and Pratt delivered it to Linnell, the constable of Pattishall, to be executed, who in attempting to arrest Gordon, was killed by him and upon Gordon being indicted for the murder of Linnell, it was proved that the deceased went to the prisoner's house in the day time to execute the warrant, that he gave notice of his business and had his staff with him, and that he had acted and was generally known as constable of the parish: the judges held this to be sufficient evidence and notice of Linnell's being constable, although there was no proof of his appointment, or of his being sworn into office. Gordon's case, 1

East, P. C. 315. But where a warrant against D., directed to A., a constable, was given by him to his sons B. and C. to execute, A. staying behind; they found D., lying under a hedge, with a knife in his hand, running the blade of it into the ground; he got up to run away, but B. got hold of him and he immediately stabbed B. with the knife; the father, A., was at the time in sight, about a quarter of a mile off: Parke, B., told the jury that the arrest was illegal, as the father was too far off to be assisting in it, and there was no evidence that the prisoner had prepared the knife beforehand to resist illegal violence; if a person receive illegal violence, and he resist that violence with anything he happen to have in his hand, and death ensue, that would be manslaughter. R.v. Patience, 7 Car. & P. 775.

But if the process be defective in the form of it, as if there be a mistake in the name of the person on whom it is to be executed, or if the name of such person or of the officer be

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inserted without authority, or after the issuing of the process, -or if the officer exceed his authority, - the killing of the officer in such case by the party would be manslaughter only. Fost. 312. Where upon an indictment for stabbing, with intent to murder, it appeared that the prosecutor, a constable, in attempting to arrest the prisoner, was stabbed by him; but it appearing that the warrant which authorized the arrest, did not state the prisoner's christian name, but merely described him Hood, of Bemerton, in the parish of Fugglestone, in the county of Wilts, son of Samuel Hood,"-the judges held the warrant to be bad, as omitting the prisoner's christian name, and not assigning any reason for the omission; and that therefore if death had ensued it would have been manslaughter only, and consequently the prisoner ought to be acquitted. R. v. Hood, Ry. & M. 281. So, a warrant against John H. will not justify the constable in apprehending Richard H., although Richard be really the person intended, and the name of John were inserted by mistake. Hoye v. Bush, 1 Man. & Gr. 775. So, a warrant against J. S. Knight, will not justify the officer in apprehending J. S. Baronet, 1 Hawk. c. S1, s. 64, because “Baronet" is parcel of the name, and Knight is not. So a blank warrant omitting the name altogether, would be bad. Where the under-sheriff of Staffordshire, was in the habit of leaving blank warrants, sealed, with one Deacle, who acted for him, to fill up as occasion might require, and Deacle made out a warrant on a writ against one Stockley, inserting Stockley's name, and delivered it to Welch the officer, and Welch afterwards added the names of Clewes and Davil to it: Welch, in endeavouring to execute the warrant, was killed by Stockley; and Stockley being indicted as for murder, the judges held that it was only manslaughter. R. v. Stockley, 1 East, P. C. 310. But where a magistrate was in the habit of keeping by him a number of blank warrants, ready signed, and on being applied to, filled up one of them, and gave it to a constable, who, on endeavouring to arrest the party, was killed: it was holden that this was murder in the person killing the officer, and he was executed. 8 T. R. 454, cit. by Ld. Kenyon, 1 Russ. 621.

If a constable or other person, without warrant, apprehend or attempt to apprehend an offender, in a case where by law he may do so, (see ante. p. 21. 25,) and he be killed in so doing, it will be murder. Where upon an indictment for shooting at a constable, and cutting him on the head, with intent to murder, &c., it appeared that the prisoner was given in charge to a constable named Freeman, for having a forged note in his possession; and upon Freeman attempting to handcuff him, the prisoner fired a pistol at him, and wounded him severely; he then attempted to escape, but Freeman overtook him, and in a struggle between them, the prisoner struck Freeman