who is a known officer in the vill, he is not bound to show his warrant, though demanded; it is enough for him to say, I arrest you for felony, or the like, in the king's name. * 2 Hale's Hist.116.

But it is reasonable, and also safe for the officer to acquaint him for what he attacheth or arresteth him; for it is a great security to the officer that arrests him; and just for the party arrested to know the cause forwhat it is. 2Hale's Hist. 116.

And Hawkins says, these officers, and all other persons whatsoever making an arrest, ought to acquaint the party with the substance of their warrants. 2 Hawk. c. 13. s. 28.

Also LD. Kenyon,CH.J. in a late case on a civil action, said he could not forbear observing, that if it be established as law that it is not necessary to show the warrant to the party arrested if it be demanded, 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, and he did 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 the truth: and he added that it is very important that in all cases where an arrest is made by virtne of a warrant the warrant (if demanded) should be produced. Hale v. Roche. 8 Ter. Rep. 188.

rest, the warrant must be

The execution of a warrant must also be pursuant to the As a justifica. direction of it. Therefore, where a warrant was directed to tion for the arthe officer to take up a disorderly woman, and he took up a woman who was not so, the arrest was held to be illegal, and strictly pursu the officer liable to an action for the injury.-So also, where a ed. warrant was directed by a secretary of state to the king's messengers to take up the author, printer, or publisher of a libel,' and the messengers took up a person who was neither author, printer, nor publisher, it was determined to be unjustifiable, and the messengers liable to an action of trespass and false imprisonment; for in neither of the cases had the officers acted in obedience to their warrants. 2 Hawk. 8vo. ed. 138, and 3 Burrows's Rep. 1766.

And even where a warrant is granted against IN, the son of WN, and the officer arresteth I N, the son of T' N, although in fact he be the same person that offended, and against whom the complaint was made, yet this arrest is tortious, and the officer is subject to an action of false imprisonment +. Dalton e. 169, p. 578.

An arrest without a warrant cannot be made good by a war- Suffering the party to go at

And Dalton says, that on this notice 'the party at his peril ought to obey him, though he knoweth him not to be an officer; and if he have to lawful warrant, the party grieved may have his action of false imprisonment, Dalton, c. 169. p. 578.

+ However, in a case of this nature, it is presumed that no jury would give substantial damages.

.

Jarge, cannot rant taken out afterwards: also, if a constable, after he hath retake him by arrested the party by force of any such warrant, suffer him to he same warant. go at large, upon his promise to come again at such a time, and find suretics, he cannot afterwards arrest him by force of the same warrant. 2 Hawk. c. 13. s. 9.

A warrant manitestly bad,uo justification.

However, if the party return, and put himself again under the custody of the constable, it seems that it may reasonably be contended, that the constable may detain him, and bring him before the justice, in pursuance of such warrant: though the law in this respect does not appear to be clearly settled. 2 Huwk. c. 13. s. 10.

But if the party arrested escape of his own wrong, with out the consent of the officer, upon fresh suit the officer may take him again, so often as he escapeth, although he be out of view, or shall fly into another town or county. Dalton, c. 169, p. 578. 2 Hale's Hist. 115.

It is clear, that a constable cannot justify any arrest by force of a warrant from a justice of peace, which expressly appears on the face of it to be for an offence whereof a justice of peace hath no jurisdiction, or to bring the party before him at a place out of the county for which he is a justice. 2 Hawk. c. 13. s. 9.

And a warrant to apprehend all persons guilty of a crime therein specified is no legal warrant: for the point upon which its authority rests is a fact to be decided on a subsequent trial; namely, whether the person apprehended thereupon be really guilty or not; it is therefore in fact no warrant at all, for it will not justify the officer who acts under it. 4 Black. Com.

291.

But if a justice of peace shall make any warrant for a matter wherein he hath jurisdiction, although it be beyond

* And Hawkins says, It is the better opinion, that any constable or even private person, to whom a warrant shall be directed from a justice of peace to arrest a particular person for felony, or any other misdemeanor within his jurisdiction, may lawfully execute it, whether the person mentioned in it, be in truth guilty or innocent; for however the justice himself may be punishable for granting such a warrant without sufficient grounds, it is reasonable that he alone be answerable for it, and not the officer, who is not to examine or dispute the reasonableness of his proceeding. 2 Hawk. c. 13, s. 11.

And judge Blackstone, in his Commentaries, lays it down, that a warrant properly penned (even though the magistrate who issues it should exceed his jurisdiction) will, by 24 Geo. 2. c. 44, (which act see post.) at all events indemnify the officer who executes it ministerially, 4 Black. Com. 291.

And where a justice of peace maliciously and of his own head issues a warrant against another, without any information being laid before him, npon a supposed charge of felony, the remedy against the justice is trespass for the false imprisonment, and not case, for the distinction, is this, viz. where the immediate act of imprisonment proceeds from the defendant, the remedy is by action of trespass only; but where the act of imprisonment by one person is in consequence of information from another, there an action upon the case is the proper remedy. Morgan v. Hughes. 2 Term Rep. 225.

his authority; yet it is not disputable by the constable or other such officer, but must be obeyed and executed by the officer; as if the justice of peace shall make his warrant to arrest one for the peace or good behaviour, or the like, without cause, the officer shall not be punished for executing this. Dalton, c. 169. p. 579.

For since the person injured by an arrest on a justice's. war rant hath a good action against the justice who granted it, if he did it maliciously of his own head, in order to oppress or defame the party, without any probable ground of suspicion, there is no necessity of giving a further remedy against the officer who obeys the warrant. 2 Hawk. c. 13, s. 11.

And it would be a great discouragement to officers to subject them to actions for endeavouring to serve the public, by paying obedience to the precepts of those whose officers they are. 2 Hawk. e. 13, s. 11.

And he both may and ought to execute a general warrant to bring a particular person before a justice of peace, to answer such matters as shall be objected against him on the part of the king, because the officer ought to presume, that the justice hath a jurisdiction of the matter which he takes cognizance of, unless the contrary appear and it may often endanger the escape of the party to make known the crime he is accused of. 2 Hawk. c. 13. s. 10.

rauts.

But it seems to be very questionable, whether a constable can The execution justify the execution of a general warrant to search for felons, of search waror stolen goods, because such warrant seems to bo illegal on the very face of it; for it would be extremely hard to leave it to the discretion of a common officer to arrest what persons, and search what houses he thinks fit; and if a justice cannot legally grant a blank warrant for the arrest of a single person, leaving it to the party to fill it up, surely he cannot grant such a general warrant, which might have the effect of an hundred blank warrants. 2 Hawk. c. 13. s. 10.

It is certainly an offence of a very high nature to oppose one Resisting the who lawfully endeavours to arrest another for treason or felony; arrest. and some have said, that the person who so opposes an arrest for treason whereof he knows the party to have been guilty, is thereby guilty of treason; and that he who so opposes an arrest for felony is an accessary to the felony. 2 Hawk. c. 17.

8. 1.

suit of felons.

And in the advancement of justice, homicide may in some Killing in the cases be considered as founded in necessity; for where persons arrest or purhaving authority to arrest or imprison, using the proper means for that purpose, are resisted in so doing, and the party making resistance is killed in the struggle, this homicide is justifiable. Foster's Crown Law, 270.

And on the other hand, if the party having authority to arrest

Homicide for bare flight, in inferior of

ences not justifiable,

Otherwise in

fights where a felony is in fict

committed.

or imprison, using the proper means, happeneth to be killed, it will be murder in all who take a part in such resistance; for it is homicide committed in despite of the justice of the kingdom. Foster's Crown Law, 270.

The rule laid down supposeth that resistance is made; and upon that supposition, it will, according to the opinion of Mr. J. Foster, hold in all cases, whether civil or criminal; for in the case of resistance in either case, the person having authority to arrest or imprison may repel force with force, and if death ensueth in the struggle, he will be justified: this is founded in reason and public utility; for few men would quietly submit to an arrest, if, in every case of resistance, the party empowered to arrest, was obliged to desist and leave the business undone. Foster's Crown Law, 270.

But in the case of bare flight, in order to avoid an arrest in a civil proceeding, or for a breach of the peace, or any other misdemeanor short of felony, homicide seems not to be justifiable: or if the party in such case being apprehensive of an arrest, flies, and will not yield to the arrest, or being taken, makes his es. cape, and the officer pursueth, and in the pursuit killeth him,this, according to Iale, will be murder. 2 Hale's Hist.

117.

Or, according to Mr. Justice Foster, murder, or manslaughter, as circumstances may vary the case. For if the officer in the heat of the pursuit, and merely in order to overtake the defendant, should trip up his heels, or give him a stroke with an ordinary cudgel, or other weapon not likely to kill, and death should unhappily ensue, this will amount to no more than manslaughter, if in some cases even to that offence. The blood was heated in the pursuit; his prey a lawful prey, just within his reach, and no signal mischief was intended. But had he made use of a deadly weapon, it would have amounted to murder, the mischievous vindictive spirit, the malice, which always must be collected from circumstances, determineth the nature of the of fence. Foster's Crown Law, 271.

But where a felony is committed, and the felon flieth from justice, or a dangerous wound is given, it is the duty of every man to use his best endeavours for preventing an escape; and if in the pursuit the party flying is killed, when he cannot be otherwise overtaken, this will be deemed justifiable homicide: it is what the law requireth, and will punish the wilful neglect of.. Foster's Crown La:c, 271.

And it is the duty of every man in these cases quictly to yield himself up to the justice of his country and for this reason it is that flight alone upon a charge of felony induceth a forfeiture of goods, though the party upon his trial may be acquitted of the fact: for he hath done what in him lay to stop the course of public justice. Foster's Crown Law, 272.

And if in the cases last mentioned the felon, or person giving

a dangerous wound, turneth upon the pursuers, and in the scuffle any one of them is killed, this will be murder in the person so resisting, and all his adherents present, and knowingly abetting. Foster's Crown Law, 272.

And the same it is, if in truth he were no felon ; but yet a warrant is against him as suspect of felony, and he having notice thereof, flies and resists, for the officer ought to pursue his warrant, or otherwise he is punishable; and the party by his flight and resistance is accessary to his own death. 2 Hale's Hist. 118.

As if A being a peace officer hath a warrant from a proper magistrate for apprehending of B by name, upon a charge of felony, or if B standeth indicted for felony, or if the hue and cry be levied against B, by name; in these cases, if B, though innocent, flieth, or turneth and resisteth, and in the struggle or pursuit is killed by A, or any person joining in the hue and cry, the person so killing will be indemnified; and on the other hand, if A, or any person joining in the hue and cry is killed by B, or any of his accomplices joining in that outrage, such occision will be murder; for the peace-officer and those joining him were, in this instance, in the discharge of a duty the law requireth from them, and subject to punishment in case of a wilful neglect of it. Foster's Crown Law, 318.

But then there must be these cautions; 1. He must be a law. ful officer, or there must be a hue and cry, 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's Hist. 119.

The protection the law affordeth in these cases is not confined to the ordinary ministers of justice or their assistants; it reacheth, under some limitations, to private persons interposing for preventing mischief in an affray, or using their endeavours for apprehending felons, or those who have given a dangerous wound, and for bringing them to justice; for they are likewise in the discharge of a duty the law requireth of them; the law is their warrant, and they may, not improperly, be considered as persons engaged in the public service, and for the advance..

Private per

* And the warrant although it may have been obtained by unwarrantable practices, as by false representations, perjury, or the like, is a warrant for the arresting of a person; for in cases wherein the justice of legal. peace bath jurisdiction, the legality of his warrant will never depend on the truth of the information whereon it is grounded. Curtis's case. Crown Law, 136. Foster's

+ It seems that no precise form of words is required in a case of this · kind. It is sufficient that the party isth notice, that the oder cometh under a proper authority, Same case.