city of New York, in the county of New York aforesaid, he then and there being a conductor of a passenger car, on the Bleecker Street and Fulton Ferry railroad of the city of New York, and Arthur Taggart, late of the same place, he then and there being driver of said passenger car of said railroad, on the second day of January, in the year of our Lord one thousand eight hundred and sixty-eight, at the ward, city, and county aforesaid, with force and arms, did unnecessarily overload and procure said passenger car to be overloaded, then and there being at tached to said passenger car two living creatures, to wit, two horses; by means whereof, on a certain portion of the route of the said railroad, the horses so attached to said passenger car were unable to draw said passenger car, but were, by reason of the premises aforesaid, overloaded, overdriven, tortured, and tormented; against, etc.(i) (Conclude as in book 1, chapter 3.)

(870) Refusing to aid a constable in quelling a riot.(j) That heretofore, to wit, on, etc., at, etc., divers disorderly persons, to the number of twenty and more, to the jurors aforesaid as yet unknown, then and there did unlawfully, riotously, and routously assemble and gather together to disturb the peace of our lady the queen, and being then and there so unlawfully, riotously, and routously assembled and gathered together, did commit divers outrages, to the great terror of all the liege subjects of our said lady the queen, as well inhabiting and residing as passing and repassing there, and against the peace of our said lady the queen, her crown and dignity; and the jurors aforesaid do further present, that one D. H., then and there being a constable of and for the county aforesaid, and in the due execution of his said office, then and there did endeavor to prevent and restrain the said persons so assembled and committing such outrages as aforesaid, from continuing to make the said riot and breach of the peace, and him the said D. H., being such constable as aforesaid, and so acting according to the duty of his said office, the said persons so unlawfully, riotously, and routously assembled and gathered together and disturbing the peace

(i) People v. Tinsdale, 10 Abbott's Prac. R. 374. (Hackett, Recorder, 1868.) R. v. Brown, C. & M. 175. Verdict, guilty. For notice of this case see Wh. Cr. L. 8th ed. § 1555.

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417.

of our said lady the queen, with force and arms did then and there violently, forcibly, and unlawfully resist aud obstruct in the execution of his duty; and that he the said D. H., being such constable as aforesaid, thereupon, being then and there, on the day and in the year aforesaid, in the parish aforesaid, in the county aforesaid, did in his proper person apply to one T. B., late, etc., being then and there present, and in her majesty's name did then and there, on the day and in the year aforesaid, at, etc., charge and require the said T. B. to aid and assist him, the said D. H., in the execution of his office and the preservation of the peace of our said lady the queen, and in securing the said persons so unlawfully, riotously, and routously assembled to disturb the queen's peace as aforesaid, still then and there continuing to resist and obstruct the said D. H. in the due execution of his office, in order to their being dealt with according to law; yet he the said T. B., not regarding his duty in this respect, and then and there well knowing the said D. H. was such constable as aforesaid, and so in the execution of his duty as aforesaid, to wit, on, etc., at, etc., with force and arms, unlawfully, obstinately, and contemptuously did neglect and refuse to aid and assist the said D. H. for the purpose and on the occasion aforesaid, in the manner he the said T. B. was requested, charged, and commanded to do as aforesaid, or in any other manner whatever, contrary to his duty in that behalf, in manifest contempt of our said lady the queen and her laws, to the great hinderance of justice, to the evil example, etc., and against, etc. (Conclude as in book 1, chapter 3.)

(871) Refusing to assist a constable in carrying offender to prison.(k)

That whereas a certain E. E., late of Philadelphia county aforesaid, spinster, on, etc., at, etc., was duly arrested, on suspicion of having feloniously taken, stolen, and carried away eight yards of cambric, etc., of the goods and chattels of a certain D. M., and then and there did appear in her proper person before E. T., Esq., one of his majesty's justices of the peace in the said county of Philadelphia to keep, and also divers trespasses,

(k) This form was prepared in 1760 by Mr. Benjamin Chew, then attorneygeneral of Pennsylvania.

felonies, and other misfeasances in the said county perpetrated, to hear, try, and determine, assigned, to be examined touching the said felony; and whereas the aforesaid E. T., the day and year aforesaid, at the county aforesaid, one of his majesty's justices as aforesaid being, did make his warrant of commitment in writing, with the seal of him the said E. T. sealed, bearing date the day and year aforesaid, to the sheriff or keeper of the common gaol of the county of Philadelphia directed, by which it was commanded the said sheriff or keeper of the common gaol aforesaid, that he should receive into his custody the body of the said E. E., who was charged with the felony aforesaid, and her safely keep, till she should be from thence delivered by due course of law, which said warrant of commitment, with the body of her the said E. E., the said E. T. then and there did deliver to a certain P. S., one of the constables of the township of Lower Dublin, in the county aforesaid, then and there being, by him to be carried to the common gaol of the said county, and there to be safely delivered to the sheriff of the said county or the keeper of the gaol of the said county, in due form of law, and the aforesaid P. S. then and there did take and receive the said E. E. into his custody, and the said P. S., one of the constables as aforesaid then and there being, then and there did require, and in the name of our said lord the now king did command, a certain J. W., late of the county of Philadelphia, farmer, then and there to aid and assist him the said P. S. to carry and convey the body of the said E. E. to the common gaol of the county of Philadelphia: Nevertheless the said J. W., to aid and assist him, the said P. S., to carry and convey the body of the said E. E. to the common gaol of the said county of Philadelphia, contemptuously did refuse and deny, to the manifest contempt of our said lord the now king and his laws, to the evil and pernicious example of all others in such case offending, and against, etc. (Conclude as in book 1, chapter 3.)

(872) Assault and rescue.(l)

That on, etc., at, etc., J. H., Esq., then and still being one of the justices of this commonwealth, the peace in the said county

(1) Drawn in 1786, by Mr. Wm. Bradford, attorney general. (Rescue by third persons.) Rescue is where a third person procures or assists the escape of a prisoner; and this is at the least criminal, in the same degree

to keep, assigned, and also to hear and determine divers felonies and misdemeanors in the same county committed, made his warrant in writing under his hand and seal, directed to the high sheriff of the said county, and to any constable therein, commanding him to take and arrest the body of a certain D., and him to bring before the said J. H., or some other justice of the peace, there to answer a certain charge of forcibly opposing one C., constable of the said city, in the execution of his duty before that time made, which warrant was delivered to J. W., then one of the constables for the city of Philadelphia, in the county aforesaid, to be executed in due form of law, by virtue of which same warrant the aforesaid J. W., afterwards, to wit, on, etc., at, etc., aforesaid, and within the jurisdiction of this court, did take and arrest the body of the said D. in the warrant aforesaid named, and him the said D. in his custody, by virtue of the said warrant then and there had; and that A. B. and C. D., both late of the county aforesaid, yeomen, afterwards, to wit, on, etc., with force and arms, etc., at, etc., in and upon the same J. W., then and there as aforesaid being one of the constables of the same city, in the peace of God and this commonwealth, and in the execution of his said office then and there being, with force and arms, an assault did make, and him the said D., out of the custody of the said J. W., and against the will of the said J. W., then and there, with force and arms, unlawfully did rescue and put at large, to go where he would, and that the said A. B. and C. D. the said D., out of the custody of the said J. W., and against the will of the said J. W., then and there, with force and arms, did rescue and put at large, to the evil example, etc., and against, etc. (Conclude as in book 1, chapter 3.)

with the act of a party breaking prison. In case of treason, a stranger rescuing a traitor is himself guilty of treason (Hawk. b. 2, c. 21, s. 7); in case of felony, he is guilty of felony, if the principal be convicted; and in all cases he is guilty of a high misdemeanor at common law, for which he may be prosecuted, whatever may be the fate of the party whom he aided. Hawk. b. 2, c. 21, s. 6. At common law, unsuccessful attempts to procure the escape of a felon were not felonies (R. v. Tilley, 2 Leach, 671; R. v. Stanly, R. & R. C. C. 432); though where the attempt is any degree successful, it becomes indictable. People v. Tompkins, 9 Johns. 70. Wh. Cr. L. 8th ed. § 1680. See, as to forms for same, 1046, etc.

420

(873) Against two for a rescue, one of them being in custody of an officer of the marshal's court upon process, etc.(m)

That on, etc., our said lord the king, by his writ issued out of the court of our said lord the king of his palace of Westminster, under the seal of the said court, bearing date the same day and year aforesaid, directed to the bearers of the verges of the household of our said lord the king, officers and ministers of the court of our said lord the king of his palace of Westminster and every of them, did command them and every of them, that they should take, or one of them should take, by their bodies, R. A. and W. C., if they should be found within the jurisdiction of the court aforesaid, and them safely keep, so that they might have, or one of them might have, their bodies before the judges of the court aforesaid, at the next court of the palace of our said lord the king of Westminster aforesaid, on, etc., then next following, to be holden at S., in the county of Surrey, to answer T. W. of a plea of trespass upon the case, to the damage of the said T. W., of pounds, which said writ afterwards, and before the delivery thereof, etc., which same writ so indorsed, afterwards, and before the return of the same, to wit, on, etc., at, etc., and within the jurisdiction of that court, was delivered to one G. N., then one of the bearers of the verges of our said lord the king, officers and ministers of the court of our said lord the king, to be executed in due form of law, by virtue of which said writ, the said G. N., afterwards, and before the return thereof, to wit, on, etc., at, etc., and within the jurisdiction of that court, did take and arrest the body of the said R. A. in the writ aforesaid named, and him the said R. A. in his custody, by virtue of the said writ, then and there had; and that the said R. A., late of the parish aforesaid, in the county aforesaid, yeoman, and C. D., late of same, blacksmith, afterwards, to wit, on, etc., with force and arms, at, etc., in the county and within the jurisdiction aforesaid, in and upon the said G. N., then and there as aforesaid being one of the bearers of the verges of the household of our said lord the king, officers and ministers of the court aforesaid, and having the said R. A. in

(m) Stark. C. P. 463.