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The right of officers to break open doors or windows in order to make an arrest has already been considered. (a) as has also the necessity of giving due notice of the officer's business,() and so have the cases of officers taking opposite sides in an affray.(c)

A constable has no authority to arrest, unless he reasonably believes that a breach of the peace will immediately take place; and if he endeavor to arrest and handcuff a person who is not about to commit a breach of the peace, such person and his companions may lawfully use so much violence as may be necessary to prevent such an illegal arrest; but if they use more violence than is necessary for that purpose, and thereby cause death, they are guilty of manslaughter.(cc)

In all cases where officers are authorized to act, they must exercise their authority in a proper manner, and if they exceed the reasonable bounds of what is required for the due performance of their duties, they become wrong-doers. Thus if a constable arrest a man upon suspicion of felony, he must take him as soon as he reasonably can before a magistrate for examination, and if he keep him in custody for an unreasonable time, as, for instance, three days, before he does so, he becomes a trespasser. (d) So a constable is bound to treat a prisoner, while in his custody, with no greater severity than is necessary to prevent his escape; if, therefore, he hardcuff a prisoner where it is not necessary in order to prevent his escape, or where he has not attempted to escape, he is a trespasser. (e) With respect to handcuffing, the law undoubtedly is, that constables are not only justified, but are bound to take all reasonably requisite measures for preventing the escape of those persons they have in custody for the purpose of taking them before the magistrates; but what those reasonable measures are must depend entirely upon the circumstances, upon the temper and conduct of the person in custody, on the nature of the charge, and a variety of other circumstances which must present themselves to the mind of There is no general rule that every one conveyed before the magistrates is to be handcuffed, and any such rule is unjustifiable in law; and in every case of the kind, the question for the jury is whether, looking at all the circumstances of the case, the constable used reasonable precautions, or used unnecessary measures, to secure the safe custody of his prisoner. (f) So with respect to searching a prisoner, there is no doubt that a man when in custody may so conduct himself, by reason of the *violence of his language or conduct, that a constable may *1045] reasonably think it prudent and right to search him in order to ascertain

any one.

whether he has any weapon with which he might do mischief to the person, or commit a breach of the peace; but no general rule can be applied to all such cases. Even when a man is confined for being drunk and disorderly, it is not always necessary that he should be searched, as the searching of such a person must depend upon all the circumstances of the case.(g) So although a constable may be justified in removing from a church a person who attempts to read a notice in the church, and detaining him until the service is over, he cannot legally detain him afterwards in order to take him before a magistrate.(h)

The following cases have been decided as to assaults upon collectors of taxes and peace officers called in to assist them in the execution of their duties. In order to justify a distress for assessed taxes under the 43 Geo. 3, c. 99, s. 33, it is not necessary that there should have been a personal demand by the collector, or a personal refusal by the party distrained upon. Nor is it essential that the demand, to which the refusal applies, should have specified the precise amount claimed, if the debtor understood what the amount was, and did not object to it. If a count for assaulting a party in possession of goods distrained for assessed taxes states the sum for which they were distrained, and a different sum is proved, this is a fatal variance; but if (b) Ante, p. 835, et seq.

(a) Ante, p. 841, et seq.

(c) Ante, p. 812.

(d) Wright v. Court, 4 B. & C. 596 (10 E. C. L. R.).

(e) Ibid.

(f) Leigh v. Cole, 6 Cox C. C. 329, Williams, J.

(g) Leigh v. Cole, supra.

(cc) Reg. v. Lockley, 4 F. & F. 155.

(h) Williams v. Glenister, 2 B. & C. 699 (9 E. C. L. R.), and see Imason v. Cope, ante, p. 1028; Levy v. Edwards, 1 C. & P. 40 (12 E. C. L. R.); Íbid., and Stocken v. Carter, 4 C. & P. 477 (19 E. C. L. R).

a count mention no sum the defendant may be convicted, if the party be proved to have been lawfully in possession for any amount. Upon an indictment, the first count of which charged the defendants with assaulting J. S., then being in lawful possession of goods seized for 67. 15s. 6d., arrears of assessed taxes, and the second count with a common assault, it appeared that the goods of one Ford had been distrained on his premises for taxes due from him, and J. S. had been left in possession. In order to show that the taxes had been regularly demanded before putting in the distress, it was proved that the collector had gone to Ford's house on the 23d of January, and Ford not being at home, had demanded the taxes of a female who was there, and said that he had called often before, and would distrain on the following day if they were not paid. The woman answered that Ford had been told before of the collector's coming for taxes, but said he could not pay; the collector left a message with the woman, requesting Ford to call on him, which Ford afterwards did, and stated that he was very poor and could not pay; it was objected that this was not sufficient evidence of a demand and refusal within the terms of the 43 Geo. 3, c. 99, s. 33; but Lord Denman, C. J., held that it was not necessary to show a refusal given by the householder himself, or to the collector personally; but that it was sufficient, if the circumstances showed that the householder, from poverty or otherwise, would not pay, and if the party meeting with the refusal was one authorized to act for him; and he left it to the jury to say whether they were satisfied that there had been a refusal; his lordship also held that as the first count *specified a particular amount of arrears, and a different one was proved, that count was not maintainable; but upon the second, which mentioned [*1046 no sum, that there might be a verdict against the defendants, if the prosecutor was lawfully in possession for any amount; and upon a motion for a new trial the Court held that the motion should be refused: by the statute a distress is to be taken only if there shall have been a demand and refusal of the taxes, but nothing is said to apply that provision to particular individuals, or particular sums; it is sufficient if there has been a demand of the taxes, which the party has understood, and he has not objected to the amount, but has refused to pay (i)

A collector of land-tax is not entitled, under the provisions of the 38 Geo. 3, c. 5, s. 17, or under his general authority, to take a constable with him into the house of a person from whom he is demanding payment of the arrears of land-tax. But if he has reasonable ground (from past or present circumstances) to apprehend violence from such person, he may call in constables to assist in keeping the peace, and such constables are justified in staying while the collector remains to be paid, as long as there is reason to expect violence, and if the owner of the house use violence to remove them, he is indictable for assaulting a peace officer in the execution of his duty. Such a collector has a general authority, under the Act, to distrain, and a special warrant is not necessary: and he need not have his warrant or the book of assessments with him at the time he distrains. Clark and Austen were indicted for assaulting Grinder, a peace officer in the execution of his duty, and for a common assault. Tipper, a collector of land-tax, had applied on the 28th of October to Clark for arrears of land-tax due from him, which had been repeatedly demanded before; Clark said, "I suppose if I do not pay it, you are going to distrain?" Tipper replied that he probably should. Clark answered, "If you put your hand upon anything, I will split your skull." Collins, a constable, was with Tipper on this occasion. On the 29th of November following, Tipper went to Clark's house, with Collins, Grinder, and a third constable: he desired the two last to remain outside, and to be on the alert, lest there should be a row; he and Collins entered a room, and again demanded the arrears; as soon as the demand was made Clark quitted the room, and directly afterwards he was heard to fasten the house door; upon this, Collins, by Tipper's order, unfastened the door, and brought in Grinder and the other constable. Clark soon afterwards returned into the room, with bank notes in his hand, accompanied by ten or twelve men, among whom was Austen. Clark asked what Grinder did there; and Collins answered that Grinder was there to aid and assist if required: upon this Clark said, "I will not pay the

(i) Rex v. Ford, 2 A. & E. 588 (29 E. C. L. R ).

taxes till the thief-catcher has left the room." Grinder refused to depart, upon which Clark desired Austen to put him out, saying that he would be answerable; Austen then attempted to force Grinder out of the room, and, in doing so, committed the assault in question. Clark afterwards paid the taxes with the notes in his hand. It was left to the jury to say, whether Tipper introduced Grinder for the purpose of keeping the peace, and if they thought he did so, they *were *1047] directed to find a verdict of guilty; the jury found in the affirmative of the question left, and convicted both defendants. Upon a motion for a new trial, it was contended that the collector had no right to take a constable with him; that it ought to have been shown that the collector had a warrant to distrain, or the book of assessments with him; but it was held that it was not necessary that the collector should have either the warrant or the book of assessments with him; and although the statute was applicable only to cases where a house or chest was to be broken open, and therefore the collector had no right to take Collins or any other person with him for the purpose of demanding the money: yet as the collector had good ground, from what had passed at that time and on the previous occasion, to apprehend violence, he was perfectly justified in introducing Grinder and the other constable to keep the peace, and that Grinder was justified in remaining to prevent violence, and consequently was assaulted whilst in the execution of his duty. And although the collector had no right to take Collins into the house on either occasion, yet, as no objection was made to his presence, it did not vary the case.(k)

It seems to be settled, that an arrest unlawfully made by a constable, without a warrant, cannot be made good by a warrant taken out afterwards.(1) Also it has been held, that if a constable, after he has arrested a party by force of a warrant, suffer him to go at large, upon his promise to return at such a time, and find sureties, he cannot afterwards arrest him again by virtue of the same warrant.(m) However, if the party return, and put himself again under the custody of the constable, it seems that it may probably be argued that the constable may lawfully detain him, and bring him before a justice in pursuance of the warrant.(n)

An indictment for assaulting an officer, in the execution of his duty, under a warrant, must clearly show that he is such an officer as is authorized to execute the warrant; and if it do not, the defendant cannot be sentenced upon it for a common assault. A count for assaulting A., in the execution of his office, imprisoning him, and preventing him from arresting a person, as he was commanded, by a writ issued by the Court of Record of a town and county, merely described A. as "one of the serjeants-at-mace of the said town and county," and the judgment was arrested, because it did not appear that A. was a legal officer of the Court out of which the writ issued; for a serjeant-at-mace, ex vi termini, means no more than a person who carried a mace for somebody, and the indictment did not show for whom; and taking the whole count together, the jury, in effect, had found that there was an assault and imprisonment, but committed under circumstances which justified the defendant, and therefore there was not sufficient to sustain the judgment, as for a common assault, or for an imprisonment.(o)

The 7 & 8 Geo. 4, c. 53, an Act to consolidate the laws relating to the management and collection of the excise, by sec. 40 *enacts, "That if any person,

*1048] armed with any offensive weapon whatsoever, shall with force or violence assault or resist any officer of excise, or any person employed in the revenue or excise, or any person acting in the aid or assistance of such officer or person so employed, who, in the execution of his office or duty, shall search for, take, or seize, or shall endeavor or offer to search for, take, or seize, any goods or commodities forfeited under or by virtue of this Act, or any other Act or Acts of Parliament, relating to the revenue of excise or customs, or who shall search for, take, or seize, or shall endeavor or offer to search for, take or seize any vessel, boat, cart, carriage, or other conveyance, or any horse, cattle, or other thing used in the removal of any such goods or commodities, or who shall

(k) Rex v. Clark, 3 Ad. & E. 287 (30 E. C. L. R.). (1) 2 Hawk. P. C. c. 13, s. 9. (m) 2 Hawk. P. C. Ibid. (n) 2 Hawk. P. C. lbid. (0) Rex v. Osmer, 5 East 304, ante, p. 570. There does not appear to have been any count for a common assault in this indictment. C. S. G.

arrest, or endeavor or offer to arrest, any person carrying, removing or concealing the same, or employed or concerned therein, and liable to such arrest, then and in every such case, it shall be lawful for every such officer and person so employed, and person acting in such aid and assistance as aforesaid, who shall be so assaulted or resisted, to oppose force to force, and by the same means and methods by which he is so assaulted or resisted, or by any other means or methods, to oppose such force and violence, and to execute his office or duty, and if any person so assaulting or resisting such officer as aforesaid, or any person so employed, or any person acting in such aid and assistance as aforesaid, shall in so doing be wounded, maimed, or killed, and the said officer or person so employed, or person acting in such aid and assistance as aforesaid, shall be sued or prosecuted for any such wounding, maiming, or killing, it shall be lawful for every such officer, or person so employed, or person acting in such aid and assistance, to plead the general issue, and give this act and the special matter in evidence in his defence; and it shall be lawful for any justice or justices of the peace, or other magistate or magistrates before whom any such officer or person so employed, or person acting in such aid and assistance as aforesaid, shall be brought for, or on account of, any such wounding, maiming, or killing as aforesaid, and every such justice of the peace and magistrate is hereby directed and required to admit to bail every such officer, and every person so employed, and every person acting in such aid and assistance as aforesaid, any law, usage, or custom to the contrary thereof in anywise notwithstanding."(p)

By sec. 43, for the better and more impartial trial of any indictment or information for any such violent assault, as aforesaid, "every such offence shall and may be inquired of, examined, tried, and determined in any county in England, if such offence shall have been committed in England or in any of the islands thereof, or in any county in Scotland, if the same shall have been committed in Scotland or in any of the islands thereof, or in any county in Ireland, if the same shall have been committed in Ireland or in any of the islands thereof, in such manner and form as *if the same offence had been committed in such county respectively; (q) [*1049 and that whenever any person shall be convicted of any such violent assault or resistance as aforesaid, it shall be lawful for the Court before which any such offender shall be convicted, or which by law is authorized to pass sentence upon any such offender, to award and order (if such Court shall think fit), sentence of imprisonment, with hard labor, for any term not exceeding the term of three years, either in addition to, or in lieu of, any other punishment or penalty which may by law be inflicted or imposed upon any such offender, and every such offender shall thereupon suffer such sentence in such place, and for such term as aforesaid, as such Court shall think fit to direct."(r)

By the 5 & 6 Vict. c. 29, s. 21, relating to Pentonville Prison, and by the 6 & 7 Vict. c. 26, s. 19, relating to Millbank Prison, any convict who assaults the governor or any officer or servant employed in either of these prisons, is liable "to be imprisoned for any term not exceeding two years in addition to the term for which, at the time of committing such offence, he was subject to be confined, and shall also be liable to corporal punishment, if the Court shall so order."

By the 13 & 14 Vict. c. 101, s. 9, "Where any person shall be charged with and convicted of any assault upon any officer of a workhouse or relieving officer in the

(p) By sec. 41, persons against whom indictments or informations have been found or filed for such assaults, are to be bound with two sureties to answer the same, and in default to be committed: by sec. 42, if any offender be in prison for want of bail, a copy of the indictment or information may be delivered to the gaoler with a notice of trial and proceedings had thereon.

(9) This provision would probably be held to extend only to assaults upon officers when in the execution of their duty. If, therefore, upon an indictment containing counts for assaulting an officer in the execution of his duty, and for a common assault, the jury were to acquit on all the counts except on that for the common assault, the judgment would be arrested if the venue were laid in any county except that in which the assault was committed: Rex v. Cartwright, 4 T. R. 490, ante, p 182.

(r) Some of the provisions of this Act are repealed by the 4 & 5 Will. 4, c. 51, and the 4 & 5 Vict. c. 20, but not the provisions above set forth. C. S. G.

due execution of his duty, or upon any person acting in aid of such officer, the Court may sentence the offender to the same punishment as is provided by law for an assault upon a peace officer or revenue officer in the due execution of his duty, and shall have the same power as in cases of such last-mentioned assault to order payment of the costs and expenses of the prosecution." And by the 14 & 15 Vict. c. 105, s. 18, the preceding clause is extended to "an assault upon any person included under the word 'officer' in the 4 & 5 Will. 4, c. 76, or upon any other person acting in his aid ;" and by sec. 109 of the last-mentioned Act, the term "officer" includes "any clergyman, schoolmaster, person duly licensed to practise as a medical man, vestry clerk, treasurer, collector, assistant overseer, governor, master or mistress of a workhouse, or any other person who shall be employed in any parish or union in carrying this Act or the laws for the relief of the poor into execution, and whether performing one or more of the above-mentioned functions."

We have seen that by the 14 & 15 Vict. c. 19, s. 11,(s) any person whatsoever may apprehend any person who shall be found committing any indictable offence in the night, and may convey or deliver him to any constable or peace officer in order to his being conveyed, as soon as reasonably may be, before a justice of the peace, to be dealt with according to law; and by sec. 12, *"if any person liable *1050] to be apprehended under the provisions of this Act, shall assault or offer

any violence to any person by law authorized to apprehend or detain him, or to any person acting in his aid or assistance, every such offender shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned, with or without hard labor. for any term not exceeding three years."

By the 24 & 25 Vict. c. 100, s. 66, "Any constable or peace officer may take into custody, without a warrant, any person whom he shall find lying or loitering in any highway, yard, or other place during the night, and whom he shall suspect of having committed, or being about to commit, any felony in this Act mentioned, and shall take such person as soon as reasonably may be before a justice of the peace, to be dealt with according to law."()

If any person were to assault, obstruct, or resist any constable or peace officer whilst apprehending any other person under the preceding section, the person so offending would be punishable under sec. 38.(u)

*1051]

*CHAPTER THE ELEVENTH.

OF MAIMING, ETC., BY THE FURIOUS DRIVING, ETC., OF COACHMEN.

By the 24 & 25 Vict. c. 100, s. 35, "Whosoever, having the charge of any carriage or vehicle, shall, by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm to any person whatsoever, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labor." (a)

By the 7 & 8 Geo. 4, c. 75, s. 38, every person convicted of working or navigating any wherry, boat, or other vessel licensed to carry persons or passengers on the river Thames, in which any greater number of persons or passengers shall be taken

(8) Ante, p. 648.

(t) This clause is taken from the 9 & 10 Vict. c. 25, secs. 13 & 14, and extended to all the felonies under this Act.

(u) Ante, p. 1039.

(a) This clause is taken from the 1 Geo. 4, c. 4, which was confined to stage-coaches and public carriages, and to the wanton and furious driving or racing, or wilful misconduct of coachmen and others having the charge of such coaches or carriages. The present section includes all carriages and vehicles, and extends also to wilful neglect. As to the meaning of the term "wilful," see post, p. 1059. As to counsellors and abettors, see sec. 67, ante, p. 881. As to hard labor, see ante, p. 900. As to fine and sureties see ante, p. 900. The Act extends to Ireland, but not to Scotland.

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