Capias on in dictment, or for sureties of peace, &c., or warrant. Process for contempt. Courts may ation to those c. 8. s. 1. 10 & 11 W. 3. c. 23. ss. 1, 2. 5 Ann. c. 31. s. 1. 14 G. 2. c. 6. 58 G. 3. c. 70. ss. 4, 5.) (1) Upon a capias grounded on an indictment for any crime whatsoever; or upon a capias from the chancery or king's bench, to compel a man to find sureties for the peace or good behaviour, or even upon a warrant from a justice of peace for such purpose, 2 Haw. c. 14. § 3.; or on warrant for breach of the peace. Fost. 320. So where an offence has been committed amounting to a contempt of court, and process is thereupon issued, the officer charged with the executing of it may break open doors, if necessary, in order to execute it. Semaine's case, Cro. El. 909. 5 Rep. 92. a. And the same was held in Burdett v. Abbott, 14 E. R. 157., where the process of contempt proceeded upon the order of the house of See 1 Russ. 519. commons. By 7 G. 4. c. 64., provision is made for giving compensation to order compens- persons who have been active in the apprehension of offenders charged with certain crimes, and also for making payments to the family of a person who may have been killed in endeavouring to apprehend such offenders. § 28. enacts, that " for the better remuneration of persons who have been active in the apprehension of certain offenders, be it enacted, that where any person shall appear to any court of oyer and terminer, gaol delivery, superior criminal court of a county palatine, or court of great sessions, to have been active in or towards the apprehension of any person charged with murder, or with feloniously and maliciously shooting at, or attempting to discharge any kind of loaded fire-arms at any other person, or with stabbing, cutting, or poisoning, or with administering any thing to procure the miscarriage of any woman, or with rape, or with burglary or felonious house-breaking, or with robbery on the person, or with arson, or with horse-stealing, bullock-stealing, or sheep-stealing, or with being accessary before the fact to any of the offences aforesaid, or with receiving any stolen property knowing the same to have been stolen, every such court is hereby authorised and empowered, in any of the cases aforesaid, to order the sheriff of the county in which the offence shall have been committed to pay to the person or persons who shall appear to the court to have been active in or towards the apprehension of any person charged with any of the said offences, such sum or sums or money as to the court shall seem reasonable and sufficient to compensate such person or persons for his, her, or their expences, exertions, and loss of time in or towards such apprehension; and where any person shall appear to any court of sessions of the peace to have been active in or towards the apprehension of any party charged with receiving stolen property knowing the same to have been stolen, such court shall have power to order compensation to such person in the same manner as the other courts Independent of herein-before mentioned: provided always, that nothing herein costs of prose- contained shall prevent any of the said courts from also allowing cution. to any such persons, if prosecutors or witnesses, such costs, expences, and compensations, as courts are by this act empowered to allow to prosecutors and witnesses respectively." Such orders to be paid by the sheriff, who may obtain imme diate repayment, § 29. "And be it further enacted, that every order for payment to any person in respect of such apprehension as aforesaid, shall be forthwith made out and delivered by the proper officer of the court unto such person, upon being paid for the same the sum of 5s. and no more; and the sheriff of the county for the time s. 5. 3 G. 1. c. 15. s. 4.) being is hereby authorised and required, upon sight of such on application order, forthwith to pay to such person, or to any one duly author to the treasury. ised on his or her behalf, the money in such order mentioned; (58 G. 3. c. 70. and every such sheriff may immediately apply for repayment of the same to the commissioners of his majesty's treasury, who, upon inspecting such order, together with the acquittance of the person entitled to receive the money thereon, shall forthwith order repayment to the sheriff of the money so by him paid, without any fee or reward whatsoever." 30. "And be it further enacted, that if any man shall happen to be killed in endeavouring to apprehend any person who shall be charged with any of the offences herein-before last mentioned, it shall be lawful for the court before whom such person shall be tried to order the sheriff of the county to pay to the widow of the man so killed, in case he shall have been married, or to his child or children in case his wife shall be dead, or to his father or mother in case he shall have left neither wife nor child, such sum of money as to the court in its discretion shall seem meet; and the order for payment of such money shall be made out and delivered by the proper officer of the court unto the party entitled to receive the same, or unto some one on his or her behalf, to be named in such order by the direction of the court; and every such order shall be paid by and repaid to the sheriff in the manner herein-before mentioned." (2) When 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; but where one lies under a probable suspicion only, and is not indicted, it seems the better opinon at this day (Mr. Hawkins says c. 14. §7.) that no one can justify the breaking open doors in order to apprehend him: And this opinion he founds on Coke's 4 Inst. 177. and Hale's Pleas of the Crown, 91. See 1 Russ. 520. If any man is Pursuit for treason or felony. But upon a warrant for probable cause of suspicion of felony, By warrant on the person to whom such warrant is directed may break open suspicion only. doors to take the person suspected, if upon demand he will not surrender himself, as well as if there had been an express and positive charge against him; and so (he says) hath the common practice obtained, notwithstanding the contrary opinion of Lord Coke; for in such case the process is for the king, and therefore a non omittas is implied. 1 Hale, 580. 583. 2 Hale, 117. And as he may break open such person's own house, so much In house of anmore may he break open the house of another, to take him; for other person. so the sheriff may do upon a civil process: But then he must at his peril see that the felon be there; for if the felon be not there, he is a trespasser to the stranger whose house it is. 2 Hale, 117. Semayne's case, 5 Rep. 92. a. But it seems that he that arrests as a private man, barely upon suspicion of felony, cannot justify the breaking open of doors to arrest the party suspected, but he doth it at his peril; that is, if in truth he be a felon, then it is justifiable; but if he be innocent, but upon a reasonable cause suspected, it is not justifiable. 1 Hale, 82. But a constable in such case may justify, and the reason of the difference is this; because in the former case it is but a thing permitted to private persons to arrest for suspicion, and they are Distinction between private persons and peace officers. Warrant where the king is party. Private person to prevent murder. For execution of a search warrant. Forcible entry, &c. Capias utlagatum, &c. Levying for feiture, &c. for the king. Affray in a house in view of officer. Disorderly public-house. Escape after arrest. Aliter, where warrant expresses no offence. Or not ground ed on any pre cedent offence. In a civil suit. Protection not extended to a stranger; nor in process for felony or breach of peace. not punishable if they omit it; and therefore they cannot break open doors; but in case of a constable, he is punishable if he omit it upon complaint. 2 Hale, 92.; but query as to this. See 1 Russ. 520. And in general, an officer upon any warrant from a justice, either for the peace or good behaviour, or in any case where the king is party, may by force break open a man's house, to arrest the offender. Dalt. c. 169. It is justifiable for a private person to break and enter the house of another, and imprison his person, in order to prevent him murdering his wife. Handcock v. Baker, 2 Bos. & Pull. 260. antè, P. 37. (3) On a warrant to search for stolen goods the doors may be broke open, if the goods are there; and if they are not there, the constable seems indemnified, but he that made the suggestion is punishable. 2 Hale, 151. (4) Where forcible entry or detainer is found by inquisition before justices of the peace, or appears on their view. 2 Haw. c. 14. § 6. (5) On a capias utlagatum, or capias pro fine. Id. § 2. (6) On the warrant of a justice of the peace for the levying of a forfeiture, in execution of a judgment, or conviction for it, grounded on any statute, which gives the whole or any part of such forfeiture to the king. Id. § 5. (7) Where an affray is made in a house, in the view or hearing of the constable, he may break open the doors to take them. 1 Haw. c. 63. § 16. 2 Haw. c. 14. § 8. (8) If there be disorderly drinking or noise in a house at an unseasonable 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. 2 Hale, 95. (9) Wherever a person is lawfully arrested for any cause, and afterwards escapes, and shelters himself in a house. 2 Haw. c. 14. § 9. (10) But upon a general warrant, without expressing any felony or treason, or surety of the peace, the officer cannot break open a door. 1 Hale, 584. (11) Neither ought doors to be broken open to take a person, who is required to take certain oaths by virtue of a statute, because in such case the warrant is not grounded on a precedent offence. 2 Haw. c. 14. 11. 12 Rep. 131. (12) In a civil suit, the officer cannot justify the breaking open an outward door or window in order to execute process. If he doth, he is a trespasser. But if he findeth the outward door open, and entereth that way, or if the door be opened to him from within, and he entereth, he may break open inward doors, if he findeth that necessary, in order to execute his process. Fost. 319. For a man's house is his castle, for safety and repose to himself and family; but if a stranger, who is not of the family, upon a pursuit taketh refuge in the house of another, this rule doth not extend to him; it is not his castle; he cannot claim the benefit of sanctuary therein. Fost. 320. See Semayne's case, antè, p. 43. And it is always to be remembered that this rule must be confined to the case of arrest upon process in civil suits only. For where a felony hath been committed, or a dangerous wound given, or even where a minister of justice cometh armed with process founded on a breach of the peace, the party's own house is no sanctuary for him; in these cases, the justice which is due to the public must supersede every pretence of private inconvenience. Fost. 320. (13) Finally, in all these cases, if an officer, to serve any warrant, enter into a house, the doors being open, and then the doors are locked upon him, he may break them open in order to regain his liberty. 2 Haw. c. 14. § 11. If there be a warrant against a person for a trespass or breach Killing in the of the peace, and he fly and will not yield to the arrest, or being arrest or purtaken, make his escape; if the officer kill him, it is murder. 2 Hale, suit, in misde 117. 1 East's P. C. 302. But if such person, either upon the attempt to arrest, or after the arrest, assault the officer, to the intent to make his escape from him, and the officer standing upon his guard kill him, this is no felony; for he is not bound to go back to the wall as in common cases of se defendendo, for the law is his protection. 2 Hale, 118. 1 East's P. C. 302. meanor. On assault with intent to escape. But where a warrant issueth against a person for felony, and Flight for either before arrest or after he flies and defends himself with felony. stones or weapons, so that the officer must give over his pursuit, or otherwise cannot take him without killing him, if he kill him it is no felony. And the same law is for a constable that doth it by virtue of his office, or on hue and cry. Id. But then there must be these cautions:- 1. He must be a lawful officer; or there must be a lawful warrant. 2. The party ought to have notice of the reason of the pursuit, namely, because a warrant is against him. 3. It must be a case of necessity, and that not such a necessity as in the former case, where an assault is made upon the officer; but this is the necessity, namely, that he cannot otherwise be taken. 2 Hale, 119. 1 East's P. C. 312. If an innocent person be indicted of a felony, where in truth After indictno felony was committed, and will not suffer himself to be arrested ment. by the officer who has a warrant for that purpose, he may lawfully be killed by him if he cannot otherwise be taken; for there is a charge against him upon record, to which, at his peril, he is bound to answer. 1 Haw. c. 28. § 12. [See tit. Homicide.] But though a private person may arrest a felon, and if he fly Private person. so as he cannot be taken without he be killed, it is excusable in this case for the necessity, yet it is at his peril that the party be a felon; for if he be innocent of the felony, the killing (at least before the arrest) seems at least manslaughter; for an innocent person is not bound to take notice of a private person's suspicion. 2 Hale, 119. A person sworn and commonly known and acting within his own precinct, need not show his warrant, but he ought to acquaint the party with the substance of it. 2 Haw. c. 13. § 28. An officer giveth sufficient notice what he is, when he saith to the party, I arrest you in the king's name; and in such case the party at his peril ought to obey him, though he knoweth him not to be an officer; and if he have no lawful warrant, the party grieved may have his action of false imprisonment. Dalt. c. 169. Whether the constable need to show his warrant. Or give notice. But the learned editor of Hale's history observes hereupon, that the books referred to intend the general warrant constituting such person an officer, as a bailiff, or the like, in a civil action; though it may be otherwise in case of felony; because in such case a private person may arrest a felon without any warrant at all. 2 Hale, 116. 1 Id. 458. notis. Even in a civil action, if the officer make the arrest without any warrant, and before the writ be delivered to the sheriff, the Hall v. Roche. arrest is illegal. And in Hall v. Roche, 8 T. R. 188. (in which such was the fact), Lord Kenyon C. J. said, if it be established as law by the cases cited that it is not necessary to show the warrant to the party arrested who demands to see it, I will not shake those authorities but I cannot forbear observing, that if it be so established, it is a most dangerous doctrine; because it may affect the party criminally in case of any resistance; and if homicide ensue, the legality of the warrant enters materially into the merits of the question. I do not think that a person is to take it for granted that another, who says he has a warrant against him, without producing it, speaks truth. It is very important that in all cases where an arrest is made by virtue of a warrant, the warrant (if demanded at least) should be produced. Necessity of showing war rant. What consti tutes an arrest. Constable in no warrant. A warrant was issued to apprehend the plaintiff upon a charge of a conspiracy: a constable went to the plaintiff's house with the warrant, showed it to him, allowed him to take a copy of it, and then was accompanied by the plaintiff to the magistrate, who, after examining him, dismissed him. Trespass for assault and false imprisonment was brought against the magistrate, and a verdict was given for the defendant. Upon showing cause against a rule for setting aside the verdict, Sir J. Mansfield C. J. held, that as the plaintiff went voluntarily before the magistrate, the warrant being made no other use of than as a summons, this was no arrest, and therefore the verdict was right. Arrowsmith v. Le Mesurier, 2 N. R. 211. But if he act out of his precinct, or be not sworn and commoncase to part with ly known, he must show his warrant, if demanded. 2 Haw. c. 13. 28. Otherwise the party may make resistance, and needs not to obey it. Dalt. c. 169. In no case, however, is a constable required to part with the warrant out of his own possession; for that is his justification. 1 East's P. C. 319. 2 Ld. Raym. 1196. 24 G. 2. c. 44. § 6. See tit. Constable, et infra, p. 49. Warrant of distress. 27 G. 2. c. 20. No arrest by words only. But if the constable hath no warrant, but doth it by virtue of his office as a constable, it is sufficient to notify that he is a constable, or that he arrests in the king's name. 1 Hale, 589. But in the case of a warrant of distress, issued by a justice of the peace, for levying a pecuniary forfeiture or sum of money, it is specially provided by stat. 27 G. 2. c. 20. that the officer executing the same shall, if required, show his warrant to the person whose goods are distrained, and shall suffer a copy thereof to be taken. If the constable come unto the party, and require him to go before the justice, this is no arrest nor imprisonment. Dalt. c. 170. and see Arrowsmith v. Le Mesurier, antè. For bare words will not make an arrest, without laying hold on the person, or otherwise confining him. But if an officer come into a room, and tell the party he arrests him, and lock the door, |