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that a hue and cry comes to B. the conftable of D. to apprehend A. who endeavours to escape, or ftands in resistance, so that he cannot be taken without killing him, it feems the killer is excufed from felony, tho A. were not indicted; vide pro hoc 3 E. 3. Coron. 289. and the reafon is because he is bound by law to execute his warrant, or purfue the party upon hue and cry and to apprehend him, and is indictable for a contempt if he doth not, and fo it differs from the former cafe, for no man is bound to fufpect another, but it is the act of his own judgment, and so he is merely his own warrant, and he may not adventure fo far as the death of the party, unless he be sure he was the offender, tho he may imprison him, for thereupon he shall be brought to his trial; fed de his vide Stamf. P. C. Lib. I. cap. 5. Crompt. fol. 30.

And it is to be observed, that whether the party refcues himself after he is taken, and fly or refift, or whether he fly or refist before he is taking, and be kild in the purfuit, it is all one, the killer forfeits nothing, but the perfon kild forfeits his goods, tho he were kild before attainder, upon an inquifition either by the coroner, or petit jury finding his flight. 3 E. 3. Coron. 288. 328.

[491]

By the ftatute of 21 E. 1. de malefactoribus in parcis, if a parker, forefter, or warrener, finds any trefpaffers wandering in his park, forest, or warren, intending to do damage therein, and they will not yield to the forefter after hue and cry made to ftand to the king's peace, but fly or defend themfelves, whereupon they are kild, the parker, forefter, or warrener, or their affiftants fhall not lofe life or limb for the fame, but fhall enjoy the king's peace, fo it be not done upon any former malice or evil will; but to make good fuch justification by a parker, forester, or warrener, there are these things requifite: 1. It must be a legal foreft, park, or warren, or chace, (for a chafe includes warren) and not a bare warren, park, &c. in reputation, for if a man inclofeth a piece of ground, and put deer or conies in it, this makes it not a park or warren without a prescription time out of mind, or the king's charter. 2. If a man hath a park within a forest, where he may hunt, and the forefter kills the purloinman, or his fervant hunting in the purloin, this doth not excuse the forefter from murder or manslaughter, as the circumstances of the cafe are. Dyer 327. a.

And note, that in all these cafes of homicide by neceffity, as in purfuit of a felon, in killing him that affaults to rob, or comes to burn

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or break a house, or the like, which are in themselves no felony, the matter may be specially presented by the grand inqueft, (quod vide 3 E. 3. Coron. 305. 289. and several other places,) or by the coroner's inqueft. And thus it was done in Holme's cafe, 26 Eliz. Crompt. 28. and in the case of a fervant of justice Croke, who coming with the judge out of the circuit was affaulted in the highway, and he kild the affailant, and the matter prefently was specially found by the coroner's inqueft, whereby he was difcharged by the statute of 24 H. 8. cap. 5. and in these cases upon this special prefentment the party fhall be prefently difcharged without being put to plead, but then this acquittal by prefentment is no final discharge, for he may be indicted and arraigned again afterwards, if the matter of the former indictment be false; but if in fuch case the prefentment of [492] the grand inqueft or coroner's inquest be fimply of murder or manslaughter, and thereupon he is arraigned and tried, and this special matter given in evidence, he fhall be acquitted thereupon, for upon these special matters proved in evidence, he is not guilty, for it is no felony, and this acquittal is a perpetual discharge and bar against any other indictment for the fame death; therefore this latter way is more advantageous in the conclufion for the party, than a special prefentment. Cromp. fol. 28. Holme's cafe.

Fofter, 271, 277, 318.

CHAP. XLI.

Concerning the forfeiture of him, that kills in his own defenfe, or per

I

infortunium.

a man kill another by misfortune, yet he fhall forfeit his goods

in ftrictness of law, in refpect of the great favour the law hath to the life of a man, and to the end that men fhould ufe all care, diligence and circumfpection in all they do, that no fuch hurt enfue by

their actions.

But if the occifion or killing can by no means be attributed to the act of the perfon, but to the act of him, that is kild, there it seems, tho the inftrument of the death is forfeited as a deodand, there follows no forfeiture of the goods of the perfon: for instance,

If A. fhoots at rovers, as he may lawfully do, if B. after the arrow is deliverd runs into the place, where the arrow is to fall, of his own accord, and fo is kild, this feems to be fuch an infortunium, that affects not the lofs of goods, for it was not his act that contributed to the death of B. but the wilful or improvident act of B. himself; quare. If A. affaults B. and B. in his own defense kills A. yet B. forfeits his goods.

[493]

If the coroner's inqueft find the killing fpecially fe defendendo, yet the court fhall arraign him, and try him, whether it were fe defendendo, before he fhall have his pardon of courfe. 4 H. 7. 1 & 2.

But if B. having a pitch-fork in his hand, A. affaults B. fo fiercely, that he runs upon the pitch-fork of B. B. offering no thruft at all against A. (tho this be a very difficult matter of fact to fuppofe, yet if the fact be fuppofed to be fo) it seems B. forfeits no goods, becaufe it was the act of A. himself, and fome have faid rather, that in that cafe A. is felo de fe, and forfeits his goods, de quo fupra, 44 E. 3. 44. Coron, 94. tho 3 E. 3. Coron. 286. faith his goods are forfeit in that cafe.

But where the killing of a man in his defenfe is in the law no felony, but the party upon his arraignment upon the fpecial matter is to be found or judged fimply not guilty, there is no forfeiture, but the party ought to be abfolutely acquitted, unless he fled, and it be found, that fugam fecit, for that is a diftinct forfeiture, altho the party be not guilty of the fact, and therefore always the jury is charged to inquire, whether the prifoner be guilty or not guilty, and if not guilty, whether he fled for the fame, and if he fled, then to inquire alfo of his goods-and chattles.

And the cafes, where the prifoner is not to forfeit any goods or chattles, but is to be abfolutely acquitted, if he kills in his own de, fense, are before remembered, and I here recollect them,

1. He that kills a thief, that attempts to rob him.

2. He that kills a perfon, that attempts to rob or kill him in or near the highway, or in the manfion of the killer, by the ftatute of 24 H. 8. cap. 5. and this, tho he hath not yet actually robbed. 3 E. 3. Coron. 330.

3. He that kills a perfon, that attempts wilfully to fire his houfe, or to commit burglary, tho he hath not actually broken or fired the houfe. 26 Affiz. 23. 29 Affix, 23. if he came with that purpose.

4. An officer or bailiff, that in execution of his office kills a perfon, that affaults him, tho the officer gives not back to the wall, for the officer is under the protection of the law, and the books tell us it is not felony in fuch cafe. Co. P. C. p. 65.

5. The fame law is of a conftable, that commands the king's peace in an affray, and is refifted.

6. He that kills a felon, that refifts, or jufticiari fe non permittit, and the like of a conftable or watchman, that is charged to take a perfon charged with felony, or attempts to take him upon hue and cry, if the perfon fo charged refift or fly, and cannot be otherwise taken, tho perchance he be innocent, for the reafon before given, and this either before or after the arrest.

7. If there be a great riot, or rebellious affembly, how far the killing of such persons in fuppreffing of them is criminal is to be seen.

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By the ftatute 1 Mar. cap. 12. "If any perfons to the number of "twelve or more shall intend, practife, or put in ure to overthrow pales, hedges, ditches, or inclofures of parks or other grounds, "banks of fish-ponds, conduit-heads, or pipes, or to pull down dove"cotes, barns, houses, mills, or burn ftacks of corn, or abate rents

66

or price of victual or corn, and being required by the juftices of "peace, fheriff of the county, mayors, bailiffs, or head officers of "cities, by proclamation in the queen's name to retire to their homes, "fhall remain together one hour after fuch proclamation, or fhall put "in ure fuch things, they shall be adjudged felons.

"And if any perfons above the number of two fhall unlawfully "affemble to put in ure the things aforefaid, that it fhall be lawful "for the sheriff, juftices of peace, mayors, bailiffs, and every other "perfon having commiffion from the queen to raise force in manner "of war, to be arrayed to fupprefs and apprehend the rioters, and if "the perfons fo unlawfully affembled after command and request by "proclamation fhall continue together, and not return to their habi "tations, and if any of them happen to be kild, maimed or hurt in "or about the fuppreffing or taking them, the fheriff, juf[495] "tice, mayor, &c. and their affiftants, fhall be discharged

and unpunishable for the fame against the queen and all other:" this act was continued hy the ftatute of 1 Eliz. cap. 16. during her life. (a)

(a) x Geo. cap. 5. a new act was made to the fame purport, which is perpetual.

And

And it feems, as to this manner of killing rioters, that refift the minifters of juftice in their apprehending, it is no other but what the common law allows, or at leaft what the ftatute of 13 H. 4. cap. 7. implicitly allows to two juftices of the peace, with the fheriff or under-fheriff of the county, by giving them power to raise the posse comitatus, it need be, and to arrest the rioters, and they are under the penalty of 1007. if they neglect their duty herein.

And with this agrees Mr. Dalton, cap. 46. p. 115. (b), cap. 98. p. 249. (c), and Crompt. de Pace 62. b. “Nota, que viscount & juf"tices de peace point prendre tants des homes in harneys, quant font "neceffary & guns &c. & tuer les rioters, fils ne voilent eux rendre, "come fuit pris in cafe de Drayton Baffet, car le statute 13 H. 4. t cap. 7. parle, quils eux arreftant, & fi les juftices ou afcuns de leur company tue afcun des rioters, qe ne voil render nest offence in lui, come fuit auxi prife in le dit cafe de Drayton Baffet (d) ;" and note, that tho the ftatute of 1 Eliz. was then in force, yet that was not a cafe within that statute, nor depending on it.

And it feems the fame law is for the conftable of a vill in cafe a riot happens within a vill, he may affemble force within his vill to arreft the rioters, and if he or thofe affembled in his affiftance come to arreft the rioters, and they refift, and be kild by the conftable or any of his affiftants, the conftable and his affiftants are difpunishable for the fame, for he is enabled hereunto by the common law, as being an officer for the prefervation of the peace, and may command perfons to his affiftance, and if they refuse, they are fineable for it. And farther, the statute of 17 R. 2. cap. 8. commands and

[496] authorizes the king's minifters to use all their power to taks

and suppress such riots and rioters, and a constable is the king's minifter; and the statute of 13 H. 4. cap. 7. is no repeal of this ftatute, fo that the killing of a rioter by a sheriff, justice of peace, or conftable, when he will refift and not fubmit to the arreft, feems to be no felony at common law, nor makes any forfeiture, for they do but their office, and are punishable if they neglect it.

8. If the prisoners in gaol affault the gaoler, and he in his defense kills any of them, this is no felony, nor makes any forfeiture. 22 Afiz. 5. per Thorp, adjudge per tout le councel.

(b) New Edit. cap. 182. pi 297. (c) cap. 150. p. 481.

(d) See alfo Crimpt. 23. b.

CHAP.

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