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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 S: 53.3.G. 1.

c. 15. . 4.) the same to the commissioners of bis majesty's treasury, who, upon inspecting such order, together with the acquittance of the person entitled to receive the money thereon, shall fortlwith 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 If any man is to be killed in endeavouring to apprehend any person who shall killed in atbe charged with any of the offences herein-before last mentioned, tempting to take it shall be lawful for the court before whom such person shall be fenders, the tried to order the sheriff of the county to pay to the widow of the court may man so killed, in case he shall have been married, or to his child order compenor children in case his wife shall be dead, or to his father or sation to his mother in case he shall have left neither wife nor child, such sum

family. (58G.3.

c. 70. s. 3.) 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 Pursuit for to have given another a dangerous wound, is pursued either with treason or or without a warrant by a constable or private person ; but where felony. one lies under a probable suspicion only, and is not indicted, it seems the better opinon at this day (Mr. Hawkins says c. 14. 07.) 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.

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. 1Hale, 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 Distinction besuspicion of felony, cannot justify the breaking open of doors to tween private arrest the party suspected, but he doth it at his peril; that is, if persons and in truth he be a felon, then it is justifiable; but if he be inno- peace officers. cent, 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

Warrant where the king is party.

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 tlie 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,

Private person to prevent murder.

p. 37.


Capias utlagatum, &c.


For execution (3) On a warrant to search for stolen goods the doors may

be of a search broke


if the goods are there; and if they are not there, the warrant.

constable seems indemnified, but he that made the suggestion is

punishable. 2 Hale, 151. Forcible entry,

(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 Levying for

of a forfeiture, in execution of a judgment, or conviction for it, feiture, &c. for the king.

grounded on any statute, which gives the whole or any part of

such forfeiture to the king. Id. $ 5. Affray in a

(7) Where an affray is made in a house, in the view or hearing of house in view

the constable, he may break open the doors to take them. 1 Haw. of officer.

C. 63. $ 16. 2 Haw. c. 14. § 8. Disorderly (8) If there be disorderly drinking or noise in a house at an unpublic-house.

seasonable 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. Escape after

(9) Wherever a person is lawfully arrested for any cause, and afterwards escapes, and shelters himself in a house. 2 Haw.

c. 14. & 9. Aliter, where

(10) But upon a general warrant, without expressing any felony

or treason, or surety of the peace, the officer cannot break open a presses no

door. i Hale, 584.

(11) Neither ought doors to be broken open to take a person, Or not grounded on any pre

who is required to take certain oaths by virtue of a statute, because cedent offence. in such case the warrant is not grounded on a precedent offence.

2 Haw. c. 14. § 11. 12 Rep. 131. In a civil suit. (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. Protection not For a man's house is his castle, for safety and repose to himself extended to a and family; but if a stranger, who is not of the family, upon a purstranger; suit 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. nor in process And it is always to be remembered that this rule must be con. for felony or fined to the case of arrest upon process in civil suits only. For breach of peace.

warrant ex



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. 390.

(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. 11. 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 pur. taken, make his escape; if the officer kill him, it is murder. 2 Hale, suit, in misde117. 1 East's P. C. 302.

But if such person, either upon the attempt to arrest, or after On assault with the arrest, assault the officer, to the intent to make his escape intent to 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 Ilale, 118. | East's P. C. 302.

But where a warrant issueth against a person for felony, and Flight for either before arrest or after he Aies 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


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. [Seetit. 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 innoccnt person is not bound to take notice of a private person's suspicion. 2 Hale, 119.

À person sworn and commonly known and acting within his Whether the own precinct, need not show his warrant, but he ought to acquaint constable need the party with the substance of it. 2 Haw. c. 13. & 28. An officer giveth sufficient notice what he is, when he saith to

Or give notice. 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.

to show his warrant.


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, withNecessity of

out producing it, speaks truth. It is very important that in all showing war- cases where an arrest is made by virtue of a warrant, the warrant

(if demanded at least) should be produced. What consti- A warrant was issued to apprehend the plaintiff upon a charge tutes an arrest. 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. Constable in no 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. warrant.

§ 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.

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 con

stable, or that he arrests in the king's name. í Hale, 589. Warrant of

But in the case of a warrant of distress, issued by a justice of distress. the peace, for levying a pecuniary forfeiture or sum of money, it 27 G. 2. c. 20. is specially provided by stat. 27 G. 2. c. 20. that the officer ex

ecuting the same shall, if required, show his warrant to the person whose goods are distrained, and shall suffer a copy thereof

to be taken. No arrest by

If the constable come unto the party, and require him to go words only. 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,

this is an arrest ; for he is in custody of the officer. 1 Salk. 79. 2 Haw. c. 19. § 1. Cas. Temp. Hardw. 301.

It hath been holden that if a constable, after he hath arrested Retaking after the party by force of a warrant, suffer him to go at large upon his arrest, after promise to come again and find sureties, he cannot afterwards voluntary dis

missal. arrest him by force of the same warrant: However, if the party return, and put himself again under the custody of the constable, it seems it may be probably argued that the constable may lawfully detain him, and bring him before the justice in pursuance of such warrant ; but in this the law doth not seem to be clearly settled. ? Har. c. 13. $ 9.

But if the party arrested do escape, the oficer upon fresh suit After escape. may take him again and again, so often as he escapeth, although he were out of view, or that he shall fly into another town or county, Dalt. c. 169.

V. What is to be done after the arrest. When a private person hath arrested a felon, or one suspected By a private of felony, he may detain him in custody, till he can reasonably person. dismiss himself of him ; but with as much speed as conveniently he can, he may do any of these three things :

(1) He may carry him to the common gaol; but that is now rarely done. '1 Hale, 589. 2 Hale, 77.

(2) He may deliver him to the constable, who may either carry him to gaol, or to a justice of the peace. 1 Hale, 589.

(3) He may carry him immediately to a justice of the peace. Id.

If the constable or his watch hath arrested affrayers, or persons By a watchman. drinking in an alehouse disorderly at an unseasonable time of night, he may put the persons in the stocks, or in a prison, if there be one in the vill, till the heat of their passion or intemperance is over, though he deliver them afterwards, or till he can bring them before a justice. 2 Hale, 95.

If the arrest be by virtue of a warrant, when the officer hath By an officer made the arrest, he is forth with to bring the party, according to by warrant. the direction of the warrant. If it be to bring the party before the justice who granted the warrant specially, then the officer is bound to bring him before the same justice; but if the warrant be to bring him before any justice of the county, then it is in the election of the officer to bring him before what justice he thinks fit, and not in the election of the prisoner. Foster's Case, 5 Rep. 59. b. 1 Hale, 582. 2 Hale, 112.

But if the time be unseasonable, as in or near the night, whereby he cannot attend the justice, or if there be danger of a present rescue, or if the party be sick, he may secure him in the stocks, or in a house, till the next day, or such time as it may be reasonable to bring him. 2 Hale, 120.

And when he hath brought him to the justice, yet he is in law still in his custody till the justice discharge, or bail, or commit him. Id.

But it is said, the constable is not obliged to return the warrant Returning the itself, but may keep it for his own justification, in case he should warrant. be questioned for what he had done, but only to return what he has done upon it. 2 Ld. Raym. 1196. 1 East's P. C. 319.

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