and Collins answered that Grinder was there to aid and assist if required upon this Clark said, 'I will not pay the 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 so doing, 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 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 shewn 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. (w)

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. (r) 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. (y) 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. (z)

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 sergeants-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 sergeant-at-mace, ex vi termini, means no more than a person who carried a mace for somebody, and the indictment did not shew 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 de

(w) R. v. Clark, 3 Ad. & E. 287. (x) 2 Hawk. P. C. c. 13, s. 9.

(y) 2 Hawk. P. C. ibid.
(z) 2 Hawk. P. C. ibid.

fendant, and therefore there was not sufficient to sustain the judgment, as for a common assault, or for an imprisonment. (a)

6

The 7 & 8 Geo. 4, c. 53, (b) an Act to consolidate the laws relating to the management and collection of the excise, by sec. 40 enacts, That if any person, armed with any offensive weapon whatsoeyer, 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 endeavour 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 endeavour 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 arrest, or endeavour 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 magistrate 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.' (c)

(a) R. v. Osmer, 5 East, 304, vol. i. p. 881. There does not appear to have been any count for a common assault in this indictment. C. S. G.

(b) See also 24 & 25 Vict. c. 100, s. 38, ante, p. 324. By 16 & 17 Vict. c. 107, s. 251, 'If any person shall, by force or violence, assault, resist, or obstruct any officer of the army, navy, or marines, being duly employed for the prevention of smuggling, and on full pay, or any officer of customs or excise, or other person duly employed for

the prevention of smuggling, in the due execution of his or their duty, or any person acting in his or their aid, every person so offending, being thereof convicted, shall be transported for seven years, or sentenced to be imprisoned in any house of correction or common gaol, and be kept to hard labour, for any term not exceeding three years, at the discretion of the Court before whom such offender shall be tried and convicted as aforesaid.'

(c) By sec. 41, persons against whom in

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; (d) 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 authorised to pass sentence upon any such offender, to award and order (if such Court shall think fit) sentence of imprisonment, with hard labour, 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.' (e)

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 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, (ƒ) any person whatsoever may apprehend any person who shall be found

dictments 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.

(d) 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 execu

6

tion 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.
R. v.
Cartwright, 4 T. R. 490, vol. i. p. 290.

(e) 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.

() Vol. i. p. 952.

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 to be apprehended under the provisions of this Act, shall assault or offer any violence to any person by law authorised 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 labour, 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.' (g)

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. (h)

By the 34 & 35 Vict. c. 112 (the Prevention of Crimes Act, 1871), s. 12, Where any person is convicted of an assault on any constable when in the execution of his duty, such person shall be guilty of an offence against this Act, and shall, in the discretion of the Court, be liable either to pay a penalty not exceeding twenty pounds, and in default of payment to be imprisoned with or without hard labour, for a term not exceeding six months, or to be imprisoned for any term not exceeding six, or in case such person has been convicted of a similar assault within two years, nine months with or without hard labour. (i).

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

(h) Ante, p. 324.

(i) By the 48 & 49 Vict. c. 75, 'the provisions of sec. 12 of 34 & 35 Vict. c. 112, shall apply to all cases of resisting or wilfully obstructing any constable or peace officer

when in the execution of his duty, Provided that in cases to which the 34 & 35 Vict. c. 112, s. 12, is extended by this Act the person convicted shall not be liable to a greater penalty than £5, or in default of payment to be imprisoned with or without hard labour for a longer term than two months.'

CHAPTER THE ELEVENTH.

OF MAIMING, &C. BY THE FURIOUS DRIVING, &C. 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 labour.' (a)

(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. 343. Probably a bicycle would now be held to be a carriage within this section. Taylor v. Goodwin, 4 Q. B. D. 228. As to furious riding or driving in the metropolis, see 2 & 3 Vict. c. 47, s. 54 (5); by licensed drivers, 6 & 7 Vict. c. 86, s. 28; and in towns generally, 10 & 11 Vict. c. 89, s. 28.