ocation as, if death had ensued, would have made the case manslaughter only, and that there the conviction was wrong. Holroyd, and Burrough, JJ., thought otherwise. Thomson's case, 1 Moody, C. C. 80 (a). So in the following case, (which was an indictment under the 43 Geo. 3, for cutting the prosecutor, who had assisted the constable), the charge upon which the constable and the prosecutor acted, was held to be not sufficient to justify the arrest. A person travelling on the highway told the constable that a man coming on the road had been ill-using him, and charged the constable, in the prisoner's hearing to take him before a magistrate for so mis-using him, on which the constable meeting the prisoner passing along the highway, ordered him to stop, for insulting a man on the road, and told him he was his prisoner, ordering the prosecutor to assist him. The prisoner being in custody, attempted to escape, but being pursued by the prosecutor, gave him the cut in the face, for which he was indicted and convicted. On a case reserved, the judges were of opinion that the original arrest was illegal, and that the recaption would also have been illegal ; that the case would not have been murder if death had ensued, and that the prisoner was consequently entitled to an acquittal. Curvan's case, 1 Moody, C. C. 132 (b). But in order to justify the officer, the charge need not contain the same accurate description of the offence, as would be required in an indictment. Thus, where the prisoner was delivered into the custody of a constable, who was told that it was because he had a forged note in his possession, and the prisoner shot at, and wounded, the constable, and was thereupon indicted for that offence, it was held, on a reference to the judges, that the conviction was right. They were of opinion, that though the charge on which the prisoner was taken into custody, viz. the having a forged note in his possession, without more, was defective, still that defect was immaterial; that it was not necessary that the charge should contain the same accurate description of the offence as an indictment, and that it must be considered as imputing to the prisoner a guilty possession. Ford's case, Russ. and Ry. 329 (c).

At common law, both peace officers and private persons are justified, [*691] without a warrant, in apprehending and detaining, until they *can be carried before a magistrate, all persons found attempting to commit a felony. Hunt's case, I Moody, C. C. 93 (d).

So at common law, either a constable or a private person may interpose, without warrant, to prevent a breach of the peace, and if he be killed in endeavoring to part those whom he sees fighting, the person by whom he is killed is guilty of murder, and cannot excuse himself by alleging that what he did was in a sudden affray, in the heat of blood; for he who carries his resentment so high as not only to execute his revenge against those who have affronted him, but even against such as have no otherwise offended him, than by doing their duty, and endeavoring to restrain him by breaking through his, shows such an obstinate contempt of the law, that he is no more to be favored, than if he had acted in cool blood. Hawk. P. C. b. 1, c. 31, s. 48.

But whether a constable or other peace officer is warranted in arresting a person upon a charge by another, of a mere breach of the peace, after the affray is ended, without a special warrant from a magistrate, is a point which has occasioned some doubt. According to some authorities, the

(a) 2 Eng, C. C. 80. (b) Id. 132. (c) 1 Id. 329. (d) 2 Id. 93.

officer may arrest the party on the charge of another, though the affray is over, for the purpose of bringing him before a justice, to find security for his appearance. 2 Hale, P. C. 90. Hancock v. Sandham, Williams v. Dempsey, 1 East, P. C. 306. (n.) But the better opinion is said to be the other way. 1 East, P. C. 305; Hawk. b. 2, c. 12, s. 20; 2 Russell, 506. See Timothy v. Simpson, 1 C., M. and R. 757. It seems, however, that if one person threatens to kill another, who complains to a constable, the latter may, in order to avoid the present danger, arrest the party, and detain him till he can conveniently bring him before a justice of the peace. 2 Hale, P. C. 83. This power is grounded on the duty of the officer, to prevent a probable felony, and must be governed by the same rules which apply to that case. 1 East, P. C. 306.

According to Lord Hale, a peace officer may arrest night-walkers, or persons unduly armed, who will not yield themselves, and if they fly or resist, and the officer, in endeavoring to arrest them, kills them, it is not felony, though the parties be innocent. 2 Hale, P. C. 85, 97. But unless there were a reasonable suspicion of felony in such a case, it may be a matter of doubt at this day, says Mr. East, whether so great a degree of severity would be either justifiable or necessary, especially in case of mere flight. 1 East, P. C. 303. In one case it was held that the apprehension of a person in the night, as a night-walker and disorderly person, though by a lawful officer, would be illegal, if the person arrested was innocent, and there were no reasonable grounds to mislead the officer. Tooley's case, 2 Lord Raym. 1301. And Lord Holt is reported to have said, that constables had made a practice of taking up people only for walking the streets, but he knew not whence they had such an authority. 2 Hale, P. C. 89, (note). In a late case of an action for false imprisonment, it appeared that the plaintiff was returning home late from a party, when a constable seized him as a disorderly person, and carried him before the [*692 ] captain of the watch (the defendant), who, upon the information of the constable, sent him to the House of Correction till the following morning. The defendant justified under a local act, which gave power to apprehend all night-walkers, malefactors, and suspicious persons. But Bayley, J., said this was no defence to the action; that by night-walkers was meant such persons as are in the habit of being out at night for some wicked purpose, and that there was no evidence to show that the plaintiff was a malefactor or suspicious person. Watson v. Carr, 1 Lewin, C. C. 6.

It is said in one case that watchmen and beadles have power at common law to arrest and detain in prison, for examination, persons walking in the streets at night, where there is reasonable ground to suspect of felony, although there is no proof of a felony having been committed. Lawrence v. Hedger, 3 Taunt. 14. This case, however, does not appear to extend beyond the rule already laid down, that every peace officer has authority, upon a reasonable suspicion of felony, to arrest a party, whether by day or night. It is said by Hawkins, that it is held by some that any private person may lawfully arrest a suspicious night-walker, and detain him till it be made to appear that he is a person of good reputation; and also that it has been adjudged that any one may apprehend a common notorious cheat, going about the country with false dice, and being actully caught playing with them, in order to have him brought before a justice of the peace. Hawk. P. C. b. 2, c. 13, s. 20; and see the 5 Geo. 4, c. 83, s. 6, stated post. An officer is not justified in killing, to prevent an escape, where the

party is in custody on a charge of misdemeanor. The prisoner, an excise officer, had apprehended a smuggler, who, after his capture, assaulted the officer, and beat him severely, when the former fired a pistol at his legs, and warned him to keep off. The smuggler, however, rushed forwards, when the prisoner again fired at and killed him. Holroyd, J., said to the jury, an officer must not kill for an escape when the party is in custody for a misdemeanor; but if the prisoner had reasonable grounds for believing himself to be in peril of his own life, or of bodily harm, and no other weapon was at hand to make use of, or if he was rendered incapable of using such weapon by the previous violence he had suffered, then he was justified. Forster's case, 1 Lewin, C. C. 187.

By various statutes, peace-officers and others are authorized to arrest certain offenders without warrants. The most important of these acts are those of the 7 & 8 Geo. 4, c. 29, and c. 30. By the former (s. 63) it is enacted, "that any person found committing any offence punishable either by indictment or upon summary conviction by virtue of this act, except only the offence of angling in the day-time, may be immediately apprehended without a warrant by any peace officer, or by the owner of the property on or with respect to which the offence shall be committed, or by his servant, or by any person authorized by him, and forthwith taken before some neighboring justice of the peace." The 7 & 8 Geo. 4, c. 30, s. 28, [ *693] contains a provision in the same words, applicable to offences committed against that act.

By the Metropolitan Police Act, 10 Geo. 4, c. 44, s. 7, it is enacted, "that it shall be lawful for any man belonging to the said police force, during the time of his being on duty, to apprehend all loose, idle, and disorderly persons, whom he shall find disturbing the public peace, or whom he shall have just cause to suspect of any evil designs, and all persons whom he shall find, between sunset and the hour of eight in the forenoon, lying in any highway, yard, or other place, or loitering therein, and not giving a satisfactory account of themselves, and to deliver any person so apprehended into the custody of the constable appointed under this act, who shall be in attendance at the nearest watch-house, in order that such person may be secured until he can be brought before a justice of the peace, to be dealt with according to law, or may give bail for his appearance before a justice of the peace, if the constable shall deem it prudent to take bail in the manner therein-after mentioned." See also the new Metropolitan Police Act, 2 & 3 Vict. c. 47, s. 54.

Under the 10 Geo. 4, c. 44, s. 7, it has been ruled that a police constable is not justified in laying hold of, pushing along the highway, and ordering to be off, a person found by him conversing in a crowd with another, merely because that other is known as a reputed thief. Stocken v. Carter, 4 C. and P. 477 (a).

Whether persons in his Majesty's navy, acting in the impressment of seamen, are to be held to enjoy, in the execution of their duty, the same privilege as a peace officer acting by virtue of a warrant, does not seem to be well settled. It is clear, however, that in order to justify the act there must be a warrant, and that it must be executed by a proper officer. It is, however, laid down by Mr. East, that if there be a proper officer with a legal warrant to impress, and the party endeavored to be taken, being a

(a) Eng. Com. L. Rep. xix. 482.

fit object for that service, refuse to submit, and resist and kill the officer or any of his assistants, they doing no more than is necessary to impress the mariner, it will be murder. 1 East, P. C. 308. On the other hand, if the party attempted to be pressed be killed in such struggle, it seems justifiable, provided the resistance could not be otherwise overcome; and the officer need not give way, but may freely repel force by force. Ibid. The following is one of the few cases to be found on this subject, and it can scarcely be said to recognize any principle with regard to the practice of impressment.

An officer in the impress service put one of his seamen on board a boat belonging to one William Collyer, a fisherman, with intent to bring it under the stern of another vessel, in order to see if there were any fit objects for the impress service on board. The boat steered away in another direction; and the officer pursued in another vessel for three hours, firing several shots at her with a musket loaded with ball, for the purpose of hitting the hallyards and bringing the boat to, which was found to be the usual way, one of which *shot unfortunately killed Collyer. The [ *694 ] court said it was impossible for it to be more than manslaughter. This, it may be presumed, was on the ground that the musket was not levelled at the deceased, nor any bodily hurt intended to him. But inasmuch as such an act was calculated to breed danger, and not warranted by law, though no bodily hurt was intended, it was manslaughter; and the defendant was burned in the hand. Phillip's case, Cowper, 832; 1 East, P. C. 308.

The following cases only establish the position, that the impressment of persons without warrant, is an illegal proceeding, and that the parties concerned do not enjoy the protection afforded to ministers of the law in the execution of their duty. The lieutenant of a press gang, to whom the execution of a warrant was properly deputed, remained in King Road in the port of Bristol, while his boat's crew went some leagues down the channel by his directions to press seamen. It was held that this impressment was illegal, and one of the press gang being killed, in the furtherance of that service, by a mariner, in a vessel which they had boarded with intent to press such persons as they could meet with, it was ruled to be only manslaughter, though no personal violence had been offered by the press gang. Broadfoot's case, Foster, 154. So where the mate of a ship and a party of sailors, without the captain (who had the warrant) or the lieutenant, who was deputed to execute it, impressed a man, and on his resisting, the prisoner, one of the party, struck him a violent blow with a large stick, of which he died some days afterwards, it was adjudged murder. Dixon's case, 1 East, P. C. 313. In this case the party attempted to be impressed was not a mariner, and the attempt to impress him was therefore illegal upon that ground, as upon the ground that neither the captain nor lieutenant was present. 1 East, P. C. 313. A press warrant had been directed to Lieutenant Wm. Palmer, enjoining all mayors, &c. to assist him and those employed by him in the execution thereof. Palmer gave verbal orders to the prisoners and several others to impress certain seafaring men, but the delegation was held to be clearly bad, and the execution of the warrant by the prisoners, Palmer not being there, to be illegal, although it was proved to be the constant custom of the navy to delegate the authority in this manner. Borthwick's case, 1 Dougl. 267; 1 East, P. C. 313.

A sailor in the king's navy,-on duty as a sentinel, has no authority to

fire upon persons approaching the ship against orders. The prisoner was sentinel on board the Achille, when she was paying off. The orders to him from the preceding sentinel were to keep off all boats, unless they had officers with uniforms in them, or unless the officers on deck allowed them to approach, and he received a musket, three blank cartridges, and three balls. Some boats pressing forwards, he called upon them repeatedly to stop; but one of them persisted and came close under the ship. He then fired at a man who was in the boat and killed him. It was put to the jury whether he did not fire under the mistaken impression that it was his duty, and they found that he did. But on a case reserved, the [ *695] judges *resolved unanimously, that it was nevertheless, murder. They thought it, however, a proper case for a pardon, and further they were of opinion, that if the act had been necessary for the preservation of the ship, as if the deceased had been stirring up a mutiny, the ser.tinel would have been justified. Thomas's case, 1 Russell, 509.

A question sometimes arises, whether peace officers are in the performance of their duty, of conflicting authority, namely, whether they are to be subjected to the interference of other peace officers, on a charge or supposition of their having themselves been guilty of an offence in the execution of their duty. A case of this kind is put by Lord Hale. A. and B. being constables of the vill of C., and a riot happening between several persons, A. joined one party, and commanded the adverse party to keep the peace, and B. joined the other party, and in like manner commanded the adverse party to keep the peace. The assistants and party of A. in the tumult killed B. This, adds Lord Hale, seems but manslaughter, and not murder, inasmuch as the officers and their assistants were engaged one against the other, and one had as much authority as the other. 1 Hale, P. C. 460. It is remarked upon this passage, by Mr. East, that perhaps it would have been better expressed to have said, that inasmuch as they acted not with a view so much to keep the peace as in the nature of partisans to the different parties, they acted altogether out of the scope of their character as peace officers, and without any authority whatever. For if one having a competent authority, issue a lawful command, it is not in the power of any other having an equal authority to issue a command contrary to the first, for that would be to legalise confusion and disorder. 1 East, P. C. 304. And this doctrine seems to be supported by another passage from Lord Hale, who says, that if the sheriff have a writ of possession against the house and lands of A., and A. pretending it to be a riot upon him, gain the constable of the vill to assist him and to suppress the sheriff or his bailiffs, and in the conflict the constable be killed, this is not so much as manslaughter, but if any of the sheriff's officers were killed, it would be murder, because the constable had no authority to encounter the sheriff's proceeding when acting by virtue of the king's writ. 1 Hale, P. C. 460. The sheriff's officers having apprehended a man by virtue of a writ, a mob attempted to rescue him. One of the bailiffs being assaulted, struck one of the assailants, a woman, and for some time it was thought he had killed her; whereupon the constable was sent for and charged with the custody of the bailiff. The bailiffs, on the other hand gave the constable notice of their authority, and represented the violence offered to them, notwithstanding which, he proceeded to take them into custody on the charge of murder. The woman having recovered, they were discharged next morning. The constable being indicted for the assault, Heath, J.