appoint a deputy to execute a warrant directed to him, when, by reason of sickness, absence, or otherwise, he cannot do it himself; yet it doth not seem to be settled, that a constable can make a deputy without some special cause. 2 Hawk., 62. Dalt. Justice, 4, 84. 2 Stark. Ev., 435, note (o).

It is, however, apprehended that, as all warrants are, by the statute of this state, directed to all sheriffs, coroners, and constables and not to any one of them by name, there can be no necessity for a constable appointing a deputy.

An officer is justified in executing a warrant legal in itself, granted by one who had a general jurisdiction over the subject matter, although it was erroneously or corruptly granted in the particular case. 5 Wend. Rep., 170. 13 Mass. Rep., 286. 1 Scam. Rep., 200. It would manifestly be unjust, that a mere ministerial officer, who was bound at his peril to execute the process, should suffer for doing what he supposed to be perfectly legal, in the execution of a warrant apparently valid and which was rendered illegal by facts not within his knowledge. It is sufficient to justify the officer executing process to know that the court issuing it had jurisdiction of the subject matter. He is not bound to examine into the validity of the proceedings or the regularity of the process. Even if it is issued erroneously, he would not be a trespasser for executing it. Breese's Rep., 284.

But it is a general principle of law, that, where courts of justice assume a jurisdiction which they do not possess, an action of trespass lies against the officer who executes process, because the whole proceedings, in such a case, are coram non judice; and where there is no jurisdiction there is no judge, and the proceeding is as nothing. 2 Willes' Rep., 384.

It is presumed, however, that, although a justice may be liable to an action for issuing a warrant for a cause unauthorized by law and, perhaps, the party demanding the warrant, yet, if the warrant appears to be legal and valid upon the face of it, and such as the justice had a right to issue, that the officer executing the same would be protected. But, if it appear, on the face of the warrant, that the offence is one over which the justice of the peace had no jurisdiction, he could not justify an arrest under it. 2 Stark. Ev., 437.

For all treasons, felonies, and breaches of the peace, the party accused or suspected may be arrested on Sunday. 3 Bl. Com., 280.

And the party may be arrested in the night as well as the day. 1 Burn's Justice, 105.

It is laid down that constables, if they be sworn and commonly known to be officers and act within their jurisdiction, need not show their warrant to the parties whom they come to apprehend, notwithstanding they demand the sight of it; but that these and all other persons making an arrest ought to acquaint the party whom they are to apprehend with the sub

stance of their warrants. It is, also, enjoined on all private persons to whom a warrant may be directed, and even officers, if they be sworn and commonly known, or if they act out of their own jurisdiction, to show their warrants, if demanded. 1 Chit. Crim. Law, 51. It is, however, considered advisable, even in case of a known officer, when the arrest is made by virtue of a warrant, if his authority is demanded, to produce the warrant.

Any justice of the peace, sheriff, or constable may take of the county any number that he shall think proper, to pursue, arrest, and imprison traitors, murderers, robbers, and other felons, and such as do break, or go about to break or to disturb the peace; and every man, being required, ought to assist and aid them, on pain of fine and imprisonment. But it is not justifiable for a justice, sheriff, or other officer to assemble the posse comitatus, or raise a power or assembly of people, without just cause. But, where such officers are enabled to take the power of the county, it seems that they may command and ought to have the aid and attendance of all persons above the age of eighteen years and able to travel. Gale's Stat., 224. And, in such case, it is referred to the discretion of the justice, sheriff, or constable what number they will have to attend on them, and after what manner they shall be armed or otherwise furnished. Dalt. Justice, 588. 1 Burn's Justice, 106.

A constable may justify the breaking of doors, on a warrant to arrest for felony; and even on a warrant to arrest for breach of the peace, an officer may break open the doors of the party. 1 Hale, 582. 2 Hale, 117.

But a man's house is regarded as his castle, which is only to be violated when absolute necessity compels the disregard of smaller rights in order to secure public benefit; and, therefore, in all cases where the law is silent, and express principles do not apply, this extreme violence is illegal. 1 Chit. Crim. Law, 52.

In case of breaking open doors in order to apprehend offenders, it is to be observed that, as the law doth never allow of such extremities but in cases of necessity, therefore no one can justify the breaking open another's door to make an arrest, unless he first signify to those in the house the cause of his coming and request them to give him admittance. 2 Hale, 116.

Where a person authorized to arrest another who is sheltered in a house is denied quietly to enter into it in order to take him, it seems generally to be agreed, that he may justify breaking open the door, when a person is known to have committed a treason or felony, or to have given a dangerous wound, and is pursued either with or without a warrant, by a constable or private person. But, where one lies under a probable suspicion only and is not indicted, it seems the bet

ter opinion, at this day, (Mr. Hawkins says,) that no one can justify the breaking open doors to apprehend him; and this opinion he founds on Lord Coke's 4 Inst., 177. 2 Hawk., 87. But Lord Hale, in his history of the pleas of the crown, says that, upon a warrant for probable cause of suspicion of felony, the person to whom such warrant is directed may break open doors to take the person suspected, if, upon demand, he will not surrender himself, as well as if there had been an express and positive charge against him; and so (he says) hath the common practice obtained, notwithstanding the contrary opinion of Lord Coke; for, in such case, the process is for the king, and, therefore, a non omittas is implied. 1 Burn's Justice, 107.

And Mr. Chitty says, it is now clear that, in all cases, doors may be broken open, if the offender cannot otherwise be taken under warrant for treason, felony, suspicion of felony, or actual breach of the peace, or to search for stolen goods. In these cases, too, a warrant is a complete justification to the person to whom it is directed, acting bona fide under it, even though the party accused should prove to be innocent. 1 Chit. Crim. Law, 54.

Under our statute, it is apprehended that a constable would be equally as justifiable in breaking open doors to arrest a person suspected of having committed a criminal offence, as if the charge was direct and positive. And, as he may break open such person's own house, so much more may he break the house of another to take him; for so the sheriff may do upon civil process. But he must, at his peril, see that the felon be there ; for, if the felon be not there, he is a trespasser to the stranger whose house it is. 2 Hale, 117.

open

In a civil suit, the officer cannot justify the breaking open an outside door or window in order to execute process. If he doth, he is a trespasser. But if he finds the outward door open and enters that way, or if the door be opened to him from within, and he enters, he may break open inward doors, if he finds that necessary in order to execute his process. Cowp. Rep., 1, Pull., 211. But a man's house is his castle for the safety and repose of himself and family only, and the rule does not extend to a stranger who takes refuge therein. 5 Coke's Rep., 91.

This rule, however, is confined to the case of arrest upon process in civil suits only. For, where a felony has been committed, or a dangerous wound given, or, even, where a minister of justice cometh armed with process founded on a breach of the peace, the party's own house is no sanctuary for him. In these cases, the justice which is due to the public must supersede every pretence of private inconvenience. Foster, 320.

If an officer, to serve any warrant, enters into a house, the doors being open, and then the doors are locked upon him, he

may break them open in order to regain his liberty. 2 Hawk, 87. Where a warrant is issued against a person for felony, and, either before arrest or after, he flies and defends himself with stones or weapons, so that the officer must give over his pursuit, or otherwise cannot take him without killing him, if he kill him, it is no felony, because the law enjoins a constable to take a felon, and, if he omits his duty, he is indictable and subject to fine and imprisonment. 1 Chit. Crim. Law, 23.

If such person, either upon the attempt to arrest, or after the arrest, assault the officer, to the intent to make his escape from him, and the officer, standing upon his guard, kill him, this is no felony; for he is not bound to go back to the wall, as in common cases of defending one's own person, for the law is his protection. 2 Hale, 118.

Where an officer of justice is resisted in the legal execution of his duty, he may repel force by force, and if, in doing so, he kill the party resisting him, it is justifiable homicide, and this in civil as well as in criminal cases. Arch. Crim. Pr., 333. And the same as to persons acting in aid of such officer.

Still, there must be an apparent necessity for the killing; for, if the officer were to kill after the resistance had ceased, or if there were no reasonable necessity for the violence used upon the part of the officer, the killing would be manslaughter, at the least. Arch. Crim. Pr., 333.

Where an officer or private person, having legal authority to apprehend a man, attempts to do so, and the man, instead of resisting, flies, or resists and then flies, and is killed by the officer or private person in the pursuit, if the offence with which the man was charged were treason, or felony, or a dangerous wound given, and he could not otherwise be apprehended, the homicide is justifiable. Arch. Crim. Pr., 334.

But, if there be a warrant against a person for a breach of the peace or other misdemeanor merely, and he flies and will not yield to the arrest, or, being taken, makes his escape, if the officer kills him, it is murder, 1 Hale, 481. 2 Hale, 117, unless, indeed, the homicide were occasioned by means not likely or intended to kill, in which case the homicide, at most, would be manslaughter only. Foster, 271.

If the warrant be, in itself, defective, or if it be not enforced by a proper officer, or if it be executed out of the jurisdiction &c., or the wrong person be taken under it, the party may legally resist the attempt to apprehend him, and even third persons may lawfully interfere to oppose it, doing no more than is necessary for that purpose. 1 Chit. Crim. Law, 60.

But, if the process be legal and duly executed, resistance and interference are illegal and subject the parties to an indictment. 1 Chit. Crim. Law, 61.

By sec. 92 of the Crim. Code, "If any person shall, knowingly and wilfully obstruct, resist, or oppose, any sheriff, de

puty sheriff, coroner, constable, or other officer of this state, or other person duly authorized, in serving, or attempting to serve any lawful process or order of any court, judge, or justice of the peace, or any other legal process whatsoever, or shall assault or beat, any sheriff, deputy sheriff, coroner, constable, or other officer, or person duly authorized in serving or executing, or attempting to serve or execute any process or order aforesaid, or for having served or executed, or attempted to serve or execute the same, every person so offending shall be fined in any sum not exceeding five hundred dollars, and imprisoned for a term not exceeding one year: Provided, Any officer or person whatever that may or shall assault or beat any individuals under color of his commission or authority, without lawful necessity so to do, shall, on conviction, suffer the same punishment."

If, when a man is apprehended and in the custody of an officer, a third person interferes, or espouses his cause, and encourages the prisoner to resist, the officer may arrest the third person for thus opposing the operation of justice. 1 Chit. Crim. Law, 61. Peake's Rep., 89.

When an officer has made an arrest by virtue of a warrant, it is his duty to bring the party forthwith, according to the direction thereof. 2 Hale, 112. But, if the time be unreasonable, as in or near the night whereby, he cannot attend the justice, or if there be danger of a rescue, or the party be ill and unable at present to be brought, he may, as the case shall require, secure him in the stocks, or, in case his indisposition so require, detain him in a house till the next day, or until it may be reasonable to bring him. 2 Hale, 119, 95.

If the warrant be to bring the party before the justice who issued it, then the officer is bound to bring him before the same justice; but, if the warrant be to bring him before any justice, then the power of election is vested in the officer, and not in the prisoner, and the former may proceed to any justice. who has jurisdiction in the county. 1 Chit. Crim. Law, 60. And it is even said that, where a warrant directs a person to be brought before a particular justice, he may be taken before another, especially if nearer. 1 Chit. Crim. Law, 60.

But, by the 3d sec. of "An act to regulate the apprehension of offenders and for other purposes," it shall be lawful for the justice to issue his warrant under his hand, commanding the officer, or person charged with the execution thereof, to arrest the person or persons so charged, (with having committed a criminal offence,) and bring him, her, or them before the officer issuing the said warrant, or, in case of his absence, before any other judge or justice of the peace.

And, by the 7th sec. of the same act, It shall be the duty of any sheriff, coroner, or constable into whose hands such warrant shall come, to execute the same within their respective counties, and if the offender shall be found therein, to arrest