Pardon. Persons present and aiding are principals. Joint indictment against several. Not present, accessaries. Access? before after. Pur by the superior 1&26 4. c. 88. Rescuer con liable to transportation. years, and under the age of twelve years, eve And by stat. 13 R. 2. st. 2. c. IV. prin Mr. Hawkins al' nd cause of the fact in 1795, for an asAcers having appre a mob collected and ner. In the course of night, one of the bailiffs one of the assailants, a r some time, had killed her; ery was ascertained, the constable the custody of the bailiff who had So one woman r liffs on the other hand gave the conIn R. v. Burge .uthority, and represented the violence indictment cha usly offered to them; notwithstanding which, ake them into custody upon the charge of a rape, an ob' first offered to take care also of their prisoner, guilty of th ground, th was soon rescued by the surrounding mob: and the they had ring recovered, the bailiffs were released by the conprincipe next morning. Heath J. was clearly of opinion that probe stable and his assistant were guilty of the assault and and directed the jury accordingly; who however acquitted afdefendants. 1 East's P. C. 305. aut A hinderance of a person to be arrested that has committed lony, is a misdemeanor, but no felony: but if the party be arrested, and then rescued, if the arrest were for felony, the rescuer isa felon; if for treason, a traitor; if for trespass, fineable. Hale's Sum. 116. 2 Haw. c. 21. § 7. The rescue of a prisoner, in any of the superior courts, com. mitted by the justices, is a great misprision; for which the party and the prisoner (if assenting) will be liable to be punished by imprisonment for life, forfeiture of lands for life, and forfeiture of goods and chattels, though no stroke or blow were given. 1 Russ. 385., and authorities there cited. By stat. 1 & 2 G. 4. c. 88., intituled " An act for the amendment of the law of rescue," § 1., after reciting that" Whereas divers daring attempts have of late been made to effect the rescue or prevent the detention of persons charged with or committed for or on suspicion of felony: And whereas it might tend more effectually to prevent the commission of such offences if further provisions were made for the punishment of persons who may hereafter be convicted thereof, as are hereinafter enacted:" It is therefore enacted, that "if any person shall rescue, or aid and victed of felony assist in rescuing, from the lawful custody of any constable, officer, headborough, or other person whomsoever, any person charged with, or suspected of, or committed for any felony, or on suspicion thereof, then if the person or persons so offending shall be convicted of felony, and be entitled to the benefit of clergy, and be liable to be imprisoned for any term not exceeding one year, it shall be lawful for the court by or before whom any such person or persons shall be convicted, to order and direct, in case it shall think fit, that such person or persons, instead of being so fined and imprisoned as aforesaid (a), shall be transImprisonment ported beyond the seas for seven years, or be imprisoned only, or be imprisoned and kept to hard labour in the common gaol, house (a) Sic. with hard labour. enitentiary house, for any term not less than 1 & 2 G. 4. c. 88. three years. saulting con stables to prevent the appre hension or detainer of persons charged with felony, being convicted person shall assault, beat, or wound any Persons asgh, or other person whomsoever, with ns thereof, to obstruct, resist, or ~ detainer of any person charged any person charged with or t, or wound any constable, son whomsoever with intent in o obstruct, resist, or prevent his ner; then and in every or any such rsons so offending shall be convicted of shall be lawful for the court by or before rson or persons shall be so convicted as afored direct, in case it shall think fit, that such person shall, in addition to any other pains, penalties, or ent to which he, she, or they are now subject or liable, be to hard labour for any term not exceeding two years, and not less than six months. There are also special penalties enacted for rescuing offenders against particular statutes, which belong not to this general title. of a misdemeanor, may be kept to hard labour. Although the felony for which a man is arrested be not within Clergy. clergy, yet the rescuing him is within clergy. 1 Hale, 599.607. Upon the return of a rescous, process of outlawry shall issue. Outlawry. 2 Haw. c. 27. § 113. derers. By the 25 G. 2. c. 37. § 9. it is enacted, "That if any person or Rescue of murpersons whatsoever shall by force set at liberty or rescue, or attempt to rescue or set at liberty any person out of prison, who shall be committed for or found guilty of murder or rescue, or attempt to rescue any person convicted of murder, going to execution, or during execution, every person so offending shall be deemed, taken, and adjudged to be guilty of felony, and shall Capital. suffer death without benefit of clergy." As to rescue of convicts sentenced to be transported, see 5 G. 4. c. 84. § 22. and of convicts sentenced to the penitentiary, see 56 G. 3. c. 63. § 44., tit. Transportation. Under this title may properly be included the law respecting rescous and pound-breach in cases where there has been a distress of goods. Of convicts sentenced to transportation, &c. By the common law, if a man break the pound or the lock of Rescous and it, or part of it, he greatly offendeth against the peace, and doth pound-breach. trespass to the king, and to the lord of the fee, and to the sheriff, and hundredors, in breach of the peace, and to the party, and to the delaying of justice; and therefore hue and cry is to be levied against him, as against those who break the peace. Mir. c. 2. § 26. (See forms, post.) And the party who distrained may take the goods again, wheresoever he shall find them, and impound them again. Inst. 47. The forcibly rescuing goods distrained, and the rescuing cattle Indictable. by the breach of the pound in which they have been placed, have been considered as offences at common law, and made the subject of indictment. 1 Russ. 363. and the authorities there cited. An indictment will lie for taking goods forcibly, if such taking So, taking be proved to be a breach of the peace; and though such goods goods forcibly. Indictment. Rescue from the custody of bailiff's by a constable. Rescue and hinderance of arrest, distinc tion. Rescue of person committed by the superior courts. 1 & 2 G 4. c. 88. Rescuer con victed of felony An indictment of rescous must set forth the nature and cause of the imprisonment, and the special circumstances of the fact in question. 2 Haw. c. 21. § 5. Upon an indictment at Exeter Summer Assizes, 1795, for an assault and rescue, it appeared that the sheriff's officers having apprehended a man by virtue of a writ against him, a mob collected and endeavoured by violence to rescue the prisoner. In the course of the scuffle, which was at ten o'clock at night, one of the bailiffs having been violently assaulted struck one of the assailants, a woman, and, as it was thought for some time, had killed her; whereupon, and before her recovery was ascertained, the constable was sent for and charged with the custody of the bailiff who had struck the woman. The bailiffs on the other hand gave the constable notice of their authority, and represented the violence which had been previously offered to them; notwithstanding which, he proceeded to take them into custody upon the charge of murder, and at first offered to take care also of their prisoner, who however was soon rescued by the surrounding mob: and the woman having recovered, the bailiffs were released by the constable the next morning. Heath J. was clearly of opinion that the constable and his assistant were guilty of the assault and rescue, and directed the jury accordingly; who however acquitted the defendants. 1 East's P. C. 305. A hinderance of a person to be arrested that has committed felony, is a misdemeanor, but no felony: but if the party be arrested, and then rescued, if the arrest were for felony, the rescuer is a felon; if for treason, a traitor; if for trespass, fineable. Hale's Sum. 116. 2 Haw. c. 21. § 7. The rescue of a prisoner, in any of the superior courts, committed by the justices, is a great misprision; for which the party and the prisoner (if assenting) will be liable to be punished by imprisonment for life, forfeiture of lands for life, and forfeiture of goods and chattels, though no stroke or blow were given. 1 Russ. 385., and authorities there cited. By stat. 1 & 2 G. 4. c. 88., intituled " An act for the amendment of the law of rescue," § 1., after reciting that" Whereas divers daring attempts have of late been made to effect the rescue or prevent the detention of persons charged with or committed for or on suspicion of felony: And whereas it might tend more effectually to prevent the commission of such offences if further provisions were made for the punishment of persons who may hereafter be convicted thereof, as are hereinafter enacted:" It is therefore enacted, that "if any person shall rescue, or aid and assist in rescuing, from the lawful custody of any constable, officer, headborough, or other person whomsoever, any person charged with, or suspected of, or committed for any felony, or on suspicion thereof, then if the person or persons so offending shall be convicted of felony, and be entitled to the benefit of clergy, and be liable to be imprisoned for any term not exceeding one year, it shall be lawful for the court by or before whom any such person or persons shall be convicted, to order and direct, in case it shall think fit, that such person or persons, instead of (a) Sic. being so fined and imprisoned as aforesaid (a), shall be transImprisonment ported beyond the seas for seven years, or be imprisoned only, or be imprisoned and kept to hard labour in the common gaol, house liable to transportation. with hard labour. of correction, or penitentiary house, for any term not less than 1& 2 G.4. c.88. one and not exceeding three years. such saulting con stables to prevent the appre hension or detainer of persons charged with felony, being convicted § 2. enacts, that if any person shall assault, beat, or wound any Persons asconstable, officer, headborough, or other person whomsoever, with intent in so doing, or by means thereof, to obstruct, resist, or prevent the lawful apprehension or detainer of any person charged with or suspected of felony; or if any person charged with or suspected of felony shall assault, beat, or wound any constable, officer, headborough, or other person whomsoever with intent in so doing, or by means thereof, to obstruct, resist, or prevent his or her apprehension or detainer; then and in every or any case, if the person or persons so offending shall be convicted of a misdemeanor only, it shall be lawful for the court by or before whom any such person or persons shall be so convicted as aforesaid to order and direct, in case it shall think fit, that such person or persons shall, in addition to any other pains, penalties, or punishment to which he, she, or they are now subject or liable, be kept to hard labour for any term not exceeding two years, and not less than six months. There are also special penalties enacted for rescuing offenders against particular statutes, which belong not to this general title. of a misdemeanor, may be kept to hard labour. Although the felony for which a man is arrested be not within Clergy. clergy, yet the rescuing him is within clergy. 1 Hale, 599.607. Upon the return of a rescous, process of outlawry shall issue. Outlawry. 2 Haw. c. 27. § 113. By the 25 G. 2. c. 37. § 9. it is enacted, "That if any person or Rescue of murpersons whatsoever shall by force set at liberty or rescue, or at- derers. tempt to rescue or set at liberty any person out of prison, who shall be committed for or found guilty of murder or rescue, or attempt to rescue any person convicted of murder, going to execution, or during execution, every person so offending shall be deemed, taken, and adjudged to be guilty of felony, and shall Capital. suffer death without benefit of clergy." As to rescue of convicts sentenced to be transported, see 5 G. 4. c. 84. § 22. and of convicts sentenced to the penitentiary, see 56 G. 3. c. 63. § 44., tit. Transportation. Under this title may properly be included the law respecting rescous and pound-breach in cases where there has been a distress of goods. Of convicts sentenced to transportation, &c. By the common law, if a man break the pound or the lock of Rescous and it, or part of it, he greatly offendeth against the peace, and doth pound-breach. trespass to the king, and to the lord of the fee, and to the sheriff, and hundredors, in breach of the peace, and to the party, and to the delaying of justice; and therefore hue and cry is to be levied against him, as against those who break the peace. Mir. c. 2. § 26. (See forms, post.) And the party who distrained may take the goods again, wheresoever he shall find them, and impound them again. Inst. 47. The forcibly rescuing goods distrained, and the rescuing cattle Indictable. by the breach of the pound in which they have been placed, have been considered as offences at common law, and made the subject of indictment. 1 Russ. 363. and the authorities there cited. An indictment will lie for taking goods forcibly, if such taking So, taking be proved to be a breach of the peace; and though such goods goods forcibly. Aliter, if done without vio lence. Pound-breach punishable at common law. 2 W. & M. sess. 1. c. 5. Recovery of treble damages. Though rent be tendered afterwards. Treble costs, also. What shall be a rescous. 3 G. 4. c. 126. are the prosecutor's own property, yet, if he take them in that manner, he will be guilty. Anon. 3 Salk. 187. 1 Russ. 52. 363. But as a mere trespass, without circumstances of violence, is not indictable, it has been doubted whether even a pound-breach, which has been considered a greater offence at common law than a rescue, is an indictable offence, if unaccompanied by a breach of the peace. 3 Burr.1701.1731.1 Russ. 52.363. But on the other hand, it has been submitted, that as pound. breach is an injury and insult to public justice, it is indictable as such at common law. 2 Chitt. Crim. L. 204., and the authorities there cited. 1 Russ. 363. The civil remedy, however, given by stat. 2 W. & M. sess. 1. c. 5. § 4. will, in most cases of a pound-breach, or a rescue of goods distrained for rent, be found the most desirable mode of proceed ing, where the offenders are responsible persons. That statute enacts, that, upon any pound-breach, or rescous of goods distrained for rent, the person grieved thereby shall, in a special action upon the case, recover treble damages and costs against the offender, or against the owner of the goods, if they be afterwards found to have come to his use or possession. In Firth v. Purvis, 5 T. R. 432., it was held to be no answer to an action on this statute, that the rent in demand was tendered after the distress and impounding. In Lawson v. Storey, i Ld. Raym. 20., it was adjudged that the costs shall be trebled as well as the damages. And it is determined, that where an act of parliament gives treble damages for a cause of action, for which at common law a party would only be entitled to single damages, treble costs follow as of course. Deacon v. Morris, 2 B. & A. 393. If a man distrain cattle, and as he is driving them to the pound they go into the owner's house, and he refuse to deliver them, this is a rescue in law. 1 Inst. 161. 6 Bac. Abr., tit. Rescue (A). But here we must observe, that there can be no rescous but where the party has had the actual possession of the cattle or other things whereof the rescous is supposed to be made; for if a man come to arrest another, or to distrain, and be disturbed regularly, his remedy is by action on the case. 1 Inst. 161. 6 Bac. Abr. 87., and the authorities there cited. By stat. 3 G. 4. c. 126. § 123., if any person or persons shall release, or attempt to release, any cow, horse, ass, swine, or other live stock or cattle which shall be seized for the purpose of being impounded under the authority of this (General Turnpike) act, from was made under the pound or place where the same shall be so impounded, or shall Punishing persons guilty of pound-breach, where distress general turn pike act. pull down, damage, or destroy the same pound or place, or any part thereof, or any lock or bolt belonging thereto, or with which the same shall be fastened, or shall rescue or release, or attempt to res cue or release, any distress or levy which shall be made, under the authority of this act, until or before such cow, horse, ass, swine, or other live stock or cattle seized or so impounded, or such distress or levy so made shall be discharged by due course of law, every person so offending shall, upon conviction thereof before any one of H. M.'s justices of the peace for the county or place where the offence shall have been committed, either upon confession of the party or parties offending, or upon the oath of one credible witness, and which oath the said justice is hereby authorised and empower. |