45 Geo. III. c.92.

part of United Kingdom for offences charged to

be committed in any other part

shall be admitted to bail, and duplicates of the bail-bond shall be

delivered, one to the officer apprehending, and

the other to Ex

chequer, &c.

3. Backing of, the 13 Geo. III. c. 31, and 44 Geo. III. c. 92, and that there is no provi&c. sion in the said acts for admitting to bail persons so apprehended for bailable offences, it is enacted, "That in case any person or persons shai be apprehended in one of the said parts of the United Kingdom for an offence which was committed, or charged to have been committed, in either of the other parts of the same, under any warrant indorsed in such manner as is in that respect provided by virtue of either of the said recited acts, such person or persons shall and may be taken before the judge or justice who indorsed the said warrant, or before some other jus tice or justices of the county, stewartry, city, liberty, town, or place where the same was indorsed; and in case the offence be bailable in law and such offender or offenders shall be willing and ready to give bail fo his, her, or their appearance, according to the exigence of the said war rant, such judge or justice or justices by whom such warrant wa indorsed, or before whom any such offender or offenders shall be brought shall and may proceed with such offender or offenders, and take bail fo him, her, or them, according to the exigence of the said warrant, in th same manner as the judge or justice who originally issued the sam should or might have done; and such judge or justice or justices s taking bail as aforesaid shall take the recognizance or bail-bond of th said offender or offenders, and of his, her, or their bail, in duplicate, ani shall deliver one of such duplicates to the constable, or other officer ( officers, or person or persons so apprehending such offender or offende as aforesaid, who are hereby required to receive the same, and to delive or cause to be delivered, such recognizance or bail-bond to the clerk the crown, or clerk of the peace, or other proper officer for receiving th same, belonging to the court in which by such recognizance or bail-bon such offender or offenders shall be bound to appear, and such recogn zance or bail-bond shall be as good and effectual in law, to all intent and purposes, and of the same force and validity, as if the same had bee entered into, taken, or acknowledged before a judge or justice or justice of the peace of the county, stewartry, city, town, liberty, or place, whet the offence was committed; and the said judge or justice or justices a taking bail as aforesaid, shall transmit the other of such duplicates to th Court of Exchequer of such part of the United Kingdom in which suc bail shall be taken, there to be kept of record; and it shall and may la lawful for the court, in which any person so bound to appear shall forfei his or her said recognizance or bail-bond, to transmit a certificate, tests fying the forfeiture thereof, under the seal of the court, or under th hand and seal of one of the judges or justices of the same, to the Cour of Exchequer, in that part of the United Kingdom in which such recog nizance or bail-bond shall have been taken; and it shall and may be lawful for such Court of Exchequer to proceed upon such certificate te levy the sum so forfeited, in the same manner in which they may proceed upon any recognizance or bail-bond, taken and forfeited within the same part of the United Kingdom, and estreated in due course into the said court: Provided always, that if such offence be not bailable in law, or such offender or offenders shall not give bail for his, her, or their appearance, according to the exigence of such warrant, the said judge or jus tice or justices before whom such offender or offenders shall be brought, shall remand him, her, or them to the custody of the constable or other officer or person who shall have apprehended such offender or offenders, and such constable, officer, or other person shall proceed to convey such offender or offenders into that part of the United Kingdom wherein the offence was committed, by such ways and means as are provided by the said recited acts respectively."

Parties not bailable, nor bailed,

shall be remanded

to custody as un-
der 13 Geo. III.
c. 31, and 44 Geo.

III. c. 92.

Warrants not

so marked.

Sect. 2. "And whereas it may happen, by reason of the difference in bailable must be the law prevailing in the said different parts of the United Kingdom, that the judge or justice or justices before whom any offender or offenders shall be brought, under such warrant so indorsed, may not know whether the offence mentioned in such warrant be or be not bailable; for the

better information, therefore, of such judge or justice or justices, in that 3. Backing of, particular," be it enacted, "That in case any person suing out such war- &c. rant shall show, by affidavit or otherwise, to the satisfaction of the judge or justice granting such warrant, that it may be necessary to execute such 45 Geo. III. c. 92. warrant in a 'part of the United Kingdom different from that in which such warrant is issued, and it shall appear also to the judge or justice granting such warrant, that it is granted for an offence for which it would not be lawful for any judge or justice or justices, before whom such offender or offenders might be brought, by reason of the indorsement of such warrant, as directed by the said recited acts, to admit such offender or offenders to bail, such judge or justice granting such warrant shall, upon the face of such warrant, write the words 'not bailable;' and, in all cases in which such words shall not have been so written, it shall and may be lawful for the judge or justice or justices, before whom any offender or offenders may be brought under such warrant so indorsed, to admit such offender or offenders to bail.”

Sect. 3 contains a provision for the enforcing appearances, on subpenas or other process, in different parts of the United Kingdom.

Sect. 4 provides for the tendering of expenses of a witness on his subpena. (See these enactments, title "Evidence," Vol. II.)

Sects. 5 and 6 are repealed by the 54 Geo. III. c. 186, ante, 361.

IV. Mode of executing Warrant, and herein of Breaking open
Doors, &c.

The observations already made under title "Arrest," Vol. I., as to the
mode of arresting a party, will for the most part here apply.

The officer to whom a warrant is directed and delivered ought, with all To be gone about speed and secrecy, to find out the party, and then to execute the warrant. immediately. Dalt. c. 169.)

The party to whom the warrant is directed may execute it by arresting Where to be exethe party charged any where within the jurisdiction of the magistrate cuted.

granting or backing it. (Milton v. Green, 5 East, 233; 5 Geo. IV. c. 18,

6; Vol. II., title "Distress under Justice's Warrant.")

A warrant to arrest for a felony may be executed in any franchise in

the county. (1 Hale, 116.)

A warrant directed to several may be executed by any one of them; (1 By whom.
East's P.C. 320;) but if directed to two or more jointly only, it seems all

must execute it. (See Boyd v. Durand, 2 Taunt. 161; Co. Lit. 181 b.;

Dalt. e. 169, ante, 355.)

When the party named in the warrant employs others to assist him, he must be so near as to be acting in the arrest, in order to render it legal.

Blatch v. Archer, Cowp. 66.)

The warrant may be executed at any time while it is in force. (Mackal- Time of execu

ley's case, 6 Rep. 65; 1 East's P. C. 324; Lawrence v. Hedger, 3 Taunt. tion.

14.) We have already seen how long it continues in force, ante, 357.

An arrest in the night is good, both at the suit of the queen and of the

subject, else the party may escape. (9 Rep. 66.)

By 29 Car. II. c. 7, s. 6, an arrest for treason, felony, or breach of the peace, may be made on Sunday. (See "Lord's Day,” Vol. III.)

In Mayhew v. Barker, (8 T. Ř. 110,) it was held that a warrant to arrest the party, to the end that he may become bound to appear at the next sessions, &c., means the next sessions after the arrest, and not after the date of the warrant; therefore the officer executing it may justify an arrest after the sessions next ensuing the date of the warrant.

A person may, it seems, be twice apprehended under the same warrant, if the purposes of the warrant have not been effected. (Dickenson v. Broen, Peake's Rep. 234.)

A private person cannot raise power to arrest or detain a felon. (1 Hale, Taking the power

601.)

of the county.

4. Mode of executing, &c.

Sheriff may depute.

Directions of warrant to be ob

served strictly.

Showing the war

rant.

Or giving notice of.

What an arrest.

But any justice, or the sheriff, may take of the county any number tha he shall think meet, to pursue, arrest, and imprison traitors, murderers robbers, and other felons, or such as do break or go about to break o disturb the king's peace; and every man, being required, ought to ass and aid them, on pain of fine and imprisonment. (Dalt. c. 171.)

It is not justifiable for a justice, sheriff, or other officer, to assemble th posse comitatus, or raise a power or assembly of people, upon their ow heads, without just cause. (Id.)

But, where a justice, sheriff, or other officer, is enabled to take t power of the county, it seemeth they may command and ought to ha the aid and attendance of all knights, gentlemen, yeomen, husbandme labourers, tradesmen, servants, and apprentices, and of all other perso being above the age of fifteen years, and able to travel. (Id.)

Women, ecclesiastical persons, and such as be decrepit or diseased, sha not be compelled to attend them. (Id.)

And, in such case, it is referred to the discretion of the justice, sheri or other officer, what number they will have to attend on them, and be and after what manner they shall be armed or otherwise furnished.

If a warrant be directed to the sheriff, he may command his bala under-sheriff, or other sworn and known officer, to serve it, witho writing any precept. But if he will command another man that is no su officer to serve it, he must give him a written precept; otherwise an act of false imprisonment will lie. (Lamb. 89.)

But every other person to whom it is directed must personally execu it; yet it seems that any one may lawfully assist him. (2 Haw. c. 13, s. 2 The directions of the warrant must be strictly observed, or the par executing it will not be justified in his acts, and may be treated as a tre passer; as, if the warrant be to arrest A., and he arrest B. (See Ce Dig. Imprisonment (B.); 2 Haw. c. 13, s. 31; Price v. Messenger, 2 B. P. 162; Bell v. Oakley, 2. M. & Sel. 261. See also “Constable," Vol. I A person sworn and commonly known, and acting within his own fr cinct, need not show his warrant, but he ought to acquaint the part with the substance of it. (2 Haw. c. 13, s. 28.)

An officer giveth sufficient notice what he is when he saith to the party "I arrest you in the queen's name;" and, in such case, the party at h peril ought to obey him, though he knoweth him not to be an officer; an if he have no lawful warrant, the party grieved may have his action false imprisonment. (Dalt. c. 169.)

But the learned editor of Hale's history observes hereupon, that th books referred to intend the general warrant constituting such person officer, as a bailiff or the like, in a civil action; though it may be other wise in case of felony, because, in such case, a private person may arre a felon without any warrant at all. (2 Hale, 116; 1 Id. 458, notis.)

a

In Hall v. Roche, (8 T. R. 188,) the doctrine that even a known office is not obliged to show his authority when demanded, was considered a dangerous, because it may affect the party criminally in case of resistance and, if homicide ensue, the legality of the warrant enters materially into the merits of the question. And Lord Kenyon observed, that he did no think a person is bound to take it for granted, that another who says h has a warrant against him, without producing it, speaks truth.

A warrant was issued to apprehend the plaintiff upon a charge of 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 accom panied by the plaintiff to the magistrate, who, after examining him, dis missed 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. See Russen v. Lucas, 1 C. & P. 153.)

And if the constable come unto the party and require him to go before 4. Mode of exthe justice, this is no arrest or imprisonment. (Dalt. c. 170.)

For bare words will not constitute an arrest without laying hold of the
arty, or otherwise restraining his liberty. (Jenner v. Sparkes, 1 Salk. 79; 6
Mod. 173, S. C. And see cases collected in 1 Chit. Arch. Prac. 7th edit. 532.)
But if he act out of his precinct, or be not sworn and commonly known,

ecuting, &c.

e must show his warrant if demanded. (2 Haw. c. 13, s. 28.) Otherwise Must show warhe party may make resistance, and needs not to obey it. (Dalt. c. 169.) rant if he act out If the constable hath no warrant, but doth it by virtue of his office as a sworn and known. of precinct, or not onstable, it is sufficient to notify that he is a constable, or that he arrests the queen's name. (1 Hale, 589.)

In the case of a warrant of distress, issued by a justice of the peace, for vying a pecuniary forfeiture or sum of money, it is specially provided by e 27 Geo. II. c. 20, that the officer executing the same shall, if required, how his warrant to the person whose goods are distrained, and shall suffer copy thereof to be taken.

In no case is a constable required to part with the warrant out of his

n possession; for that is his justification. (1 East's P. C. 319; Reg. Constable not to Wyatt, 2 Ld. Raym. 1196; 24 Geo. II. c. 44, s. 6, post, p. 368.)

part with warrant.

As to the case of breaking open doors, in order to apprehend offenders, Breaking open 4 is to be observed, that the law doth never allow of such extremities but doors. 2 cases of necessity; and therefore no one can justify breaking open nother's door to make an arrest, unless he first signify to those in the ase the cause of his coming, and request them to give him admittance. Haw. c. 14, s. 1; Lannock v. Brown, 2 B. & Ald. 592.)

Such request is undoubtedly necessary in all cases, where the warrant for a misdemeanour. (Lannock v. Brown, 2 B. & Ald. 592. And see Burtt v. Abbott, 14 East, 163.)

No precise form of words is required in a case of this kind: it is suffi- No particular ent that the party hath notice that the officer cometh not as a mere tres- form necessary. ser, but claiming to act under a proper authority, provided that the

ficer has a legal warrant. (Fost. 137.)

But where a person authorized to arrest another, who is sheltered in a When allowed. se, is denied quietly to enter it, in order to take him, it seems generally

be agreed that he may justify breaking open the doors in the following

stances:

sureties of peace,

1.) Upon a capias grounded on an indictment for any crime whatso- On a capias or iner; or upon a capias from the Chancery or King's Bench, to compel a dictment, or for c to find sureties for the peace or good behaviour, or even upon a war- &c., or warrant. t from a justice of peace for such purpose. (2 Haw. c. 14, s. 3.) Where a party has been guilty of a contempt of court, and process has Contempt of en issued against him for it, outer doors may be broken open to exte it. (Lemaine's case, Cro. Eliz. 909; 5 Rep. 92, c. And see Burdett Abbott, 14 East, 157.)

court.

(2.) When one known to have committed a treason or felony, or to Pursuit for treave given another a dangerous wound, is pursued either with or without son or felony. warrant by a constable or private person; but where one lies under a obable suspicion only, and is not indicted, it seems the better opinion this day, Mr. Hawkins says (c. 14, s. 7), that no one can justify the aking open doors in order to apprehend him. And this opinion he unds on Coke's 4 Inst. 177, and Hale's Pleas of the Crown, 91.

But upon a warrant for probable cause of suspicion of felony, the By warrant on rson to whom such warrant is directed may break open doors to take suspicion only. e person suspected, if upon demand he will not surrender himself, well as if there had been an express and positive charge against him; d so (he says) hath the common practice obtained, notwithstanding e contrary opinion of Lord Coke; for, in such case, the process is for king, and therefore a non omittas is implied. (1 Hale, 580, 583; 2 ale, 117.)

And, as he may break open such person's own house, so much more In house of

another.

4. Mode of ex- may he break open the house of another to take him; for so the sher ecuting, &c. may do upon a civil process; but then he must at his peril see that felon be there; for, if the felon be not there, he is a trespasser to t stranger whose house it is. (2 Hale, 117; Semayne's case, 5 Rep. 92, But it seems that he that arrests as a private man, barely upon suspic tween private per- of felony, cannot justify the breaking open of doors to arrest the par sons and officers. suspected, but he doth it at his peril; that is, if in truth he be a fel then it is justifiable, but if he be innocent, but upon a reasonable cau suspected, it is not justifiable. (1 Hale, 82.)

Distinction be

Warrant where king a party.

To prevent murder.

Search warrant.

Forcible entry. &c.

Capias utlagatum, &c.

Levying a forfeiture, &c.

Affray in house.

Disorderly house, &c.

Escape after ar

rest.

But a constable in such case may justify, and the reason of the di rence is this because in the former case it is but a thing permitted private persons to arrest for suspicion, and they are not punishable they omit it; and therefore they cannot break open doors; but case of a constable, he is punishable if he omit it upon complaint. Hale, 92.)

And, in general, an officer, upon any warrant from a justice, eit for the peace, or good behaviour, or in any case where the king is par may by force break open a man's house, to arrest the offender. Da c. 169.)

It is justifiable for a private person to break and enter the house another, and imprison his person, in order to prevent him murdering wife. (Handcock v. Baker, 2 B. & P. 260.)

(3.) On a warrant to search for stolen goods, the doors may be brok open, if the goods are there; and if they are not there, the consta seems indemnified, but he that made the suggestion is punishable. Hale, 151.)

(4.) Where forcible entry or detainer is found by inquisition beft justices of the peace, or appears on their view. (2 Haw. c. 14, s. 6.) (5.) On a capias utlagatum, or capias pro fine. (Id. s. 2.)

(6.) On the warrant of a justice of the peace for the levying of aft feiture, in execution of a judgment, or conviction for it, grounded on a statute, which gives the whole or any part of such forfeiture to the kin (Id. s. 5.)

(7.) Where an affray is made in a house, in the view or hearing of t constable, he may break open the doors to take them. (1 Haw. c. 63, 16; 2 Haw. c. 14, s. 8.)

(8.) If there be disorderly drinking or noise in a house at an unseas able time of night, especially in inns, taverns, or ale-houses, the const ble, or his watch, demanding entrance, and being refused, may break ope the doors, to see and suppress the disorder. (2 Hale, 95.)

(9.) Wherever a person is lawfully arrested for any cause, and afte wards escapes, and shelters himself in a house. (2 Haw. c. 14, s. 9.) (10.) But upon a general warrant, without expressing any felony rant not allowed. treason, or surety of the peace, the officer cannot break open a door. ( Hale, 584.)

On a general war

Nor on warrant not granted on

precedent offence.

In civil process.

(11.) Neither ought doors to be broken open to take a person, who required to take certain oaths by virtue of a statute, because in suel case the warrant is not grounded on a precedent offence. (2 Haw. 14, s. 11; 12 Rep. 131.)

(12.) In a civil suit, the officer cannot justify the breaking open an out ward door or window, in order to execute process. If he doth he is 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. See Tidd's Prac. 9th ed. 1012.)

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. See Semayne's case, supra.)

320.

And it is always to be remembered that this rule must be confined to