his help, for the taking of a felon, or the suppressing of an affray. 2 Haw. 75.

Also, a watchman may arrest a night walker, without any warrant from a magistrate. 2 Inst. 52.

In like manner, a constable may ex officio, arrest a breaker of the peace in his view, and keep him in his house, or in the stocks, till he can bring him before a justice. 1 H. H., 587.

Or any person whatsoever, if any affray be made to the breach of the peace, may without any warrant from a magistrate, restrain any of the offenders, to the end the peace may be kept; but after the affray is ended, they cannot be arrested without an express warrant. 2 Inst. 52.

So much concerning an arrest without a warrant; next follows, arresting with such warrant.

compelled.

The warrant is ordinarily directed to the sheriff or constable, and officer they are indictable and subject thereupon to a fine and imprisonment, if they neglect or refuse it. 1 Η. Η., 581.

If it be directed to the sheriff, he may command his under sheriff, By deputy. or other sworn or known officer, to serve it, without writing any precept; but if he will command another man, that is no such officer, to serve it, he must give him a written precept, otherwise false imprisonment will lie. Lamb., 89.

But every other person to whom it is directed, must personally execute it; yet it seems that any one may lawfully assist him. 2 Haw., 86.

If a warrant be generally directed to all constables, no one can execute it out of his own precinct; for in such case it shall be taken respectively to each of them within their several districts, and not to one of them to execute it within the district of another; but if it be directed to a particular constable, (Mr. Hawkins says to a particular constable by name,) he may execute it any where within the jurisdiction of the justice, but is not compellable to execute it out of his own constablewick. Lord Raym., 546. 1 H. H., 581. 2 H. H., 110. 2 Haw., 86.

The justice that issues the warrant may direct it to a private person Private if he pleaseth, and it is good; but he is not compellable to execute it, compelled. unless he be a proper officer. 1 H. H., 581.

But by the justice's oath, the warrant ought not to be directed to the party, but to some indifferent person, to execute it.

If a warrant is directed to two or more jointly, yet any one of them alone may execute it. Dalt., c. 169.

By City
Guard.

another State.

The City Guard of Charleston have the right to arrest persons committing affrays or breaches of the peace, without any warrant. City Council vs. Payne, 2 N. & Mc., 475.

Private persons, without a warrant, may arrest in this State a party Felons from who has committed a felony in another State, and prima facie evi. dence of the fact, as the proclamation of the governor's, or proof of true bill found, is sufficient to warrant the arrest. State vs. Andrews, 1 Hill, 327.

With speed.

Night.

district.

5th. The manner of an Arrest.

The officer to whom a warrant is directed and delivered, ought, with all speed and secresy, to find out the party, and then to execute the warrant. Dalt. c. 169.

It is certainly an offence of a very high nature to oppose one who lawfully endeavors to arrest another for treason or felony: and it seems that the person who so opposes an arrest for treason, whereof he knows the party to have been guilty, is thereby guilty of the treason; and that he who so opposes an arrest for felony, is an accessary to the felony. 2 Haw. 121.

An arrest in the night is good, both at the suit of the State, and of the subject; else the party may escape. 9 Co. 66.

Constables and others may, on having the warrant endorsed by a In a different justice in another district or county, into which an offender shall have escaped, arrest an offender in such other district or county, and carry him before the justice who endorsed the warrant, or some other justice or justices of such other district or county, if the offence is bailable, to find bail; or else shall carry him back again before a justice in the district or county from whence the warrant did first issue.

Posse
Comitatus.

Any justice, or the sheriff, may take of the district or county any number that he shall think meet, to pursue, arrest and imprison traitors, murderers, robbers and other felons; or such as do break, or go about to break or disturb the peace; and every man being required, ought to assist and aid them, on pain of fine and imprisonment. Dalt. c. 171.

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, upon their own heads, without just cause. Dalt., c. 171.

And in such case it is referred to the discretion of the justice, sheriff or other officer, what number they will have to attend on them, and how, and after what manner they shall be armed, or otherwise furnished. Dalt., c. 171

As to the case of breaking open doors, in order to apprehend offen- Breaking ders, it is to be observed, that the law doth never allow of such doors. extremities, but in case of necessity; and therefore, that 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 Haw. 86.

But 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 the breaking open the doors, in the following instances:

warrant.

Upon a warrant grounded on an indictment for any crime whatso- Upon ever, or upon a warrant from the General Court of Sessions, to compel a man to find sureties for the peace or good behaviour.

Where one is known to have committed a treason or felony, or to have given another a dangerous wound, is pursued either with or on pursuit. without a warrant, by a constable or private person, and 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 as he may break open such person's own house, so much more may he break open the house of another to take him; for so the sheriff may do upon a civil process: but then 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 Н. Н., 117.

But it seems that he that arrests as a private man barely upon suspicion of felony, cannot justify the breaking open of doors to arrest the party suspected, but he doth it at his peril; that is, if in truth he be a felon, then it is justifiable; but if he be innocent, but upon a reasonable cause suspected, it is not justifiable. 1 Н. Н., 82.

But a constable in such case may justify, and the reason of the difference is this; because, that in the former case, it is but a thing permitted to private persons to arrest for suspicion, and they are not punishable if they omit it, and therefore they cannot break open doors; but in case of a constable, he is punishable if he omit it upon complaint. 2 H. H., 92.

Upon a warrant from a justice of the peace, to find sureties for the peace or good behavior. 2 Haw., 86. 1 H. H., 582. 2 Η. Н., 117. And in general, Mr. Dalton says, an officer upon any warrant from a justice, either for the peace or good behavior, or in any case where the State is party, may by force break open a man's house to arrest the offender. Dalt., c. 169.

On search.

Levying forfeiture.

On affray.

Disorderly house.

Escape.

Not on General warrant.

Not in civil

case.

On a warrant to search for stolen goods, the doors may be broken open, if the goods are there; and if they are not there, the constable seems indemnified; but he that made the suggestion, is punishable. 2 H. H., 151.

On the warrant of a justice of the peace for the levying of a forfeiture, in execution of a judgment, or conviction for it, grounded on any Act of Assembly, which gives the whole or any part of such forfeiture to the State. 2 Haw., 86.

Where an affray is made in a house, in the view or hearing of the constable, he may break open the doors to take them. 1 Haw., 137. 2 Haw., 87.

If there be disorderly drinking or noise in a house, at any unseasonable time of night, especially in inns, taverns, or ale-houses, the constable, or his watch, demanding entrance, and being refused, may break open the doors to see and suppress the disorder. 2 H. Н., 95. Wherever a person is lawfully arrested for any cause, and afterwards escapes, and shelters himself in a house. 2 Haw., 87.

But upon a general warrant, without expressing any felony or treason, or surety of the peace, the officer cannot break open a door. 1 H. H., 584.

In a civil suit, the officer cannot justify the breaking open an outward door or window, in order to execute process; if he doth, he is a trespasser: but if he findeth the outward door open and entereth that way; or if the door be open to him from within, and he entereth, he may break open the inward doors, if he findeth that necessary, in order to execute his process. Fost., 319.

For a man's house is his castle, for safety and repose to himself and family; but if a stranger, who is not of the family, upon a pursuit, taketh refuge in the house of another, this rule doth not extend to him, it is not his castle, he cannot claim the benefit of sanctuary therein. Fost., 320.

And it is always to be remembered that this rule must be confined to the case of arrest upon process in civil suits only; for where a felony hath 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 house is no sanctuary for him: in these cases, the justice which is due to the public, must supersede every pretence of private inconvenience. Ib.

After entry.

Finally, in all these cases, 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 Haw., 87.

officer kills.

If there be a warrant against a person, for a trespass or breach of the peace, and he flies and will not yield to the arrest, or being taken makes his escape, if the officer kill him, it is murder. 2 H. H., 117. When an But 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 kills him, this is no felony; for he is not bound to go back to the wall, as in common cases of se defendo, for the law is his protection. 2 H. Н., 118.

But where a warrant issueth 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 : and the same law is, for a constable that doth it by virtue of his office, or on hue and cry. 2 H. H., 118.

But then there must be these cautions: (1.) He must be a lawful officer, or there must be a lawful warrant. (2.) The party ought to have notice of the reason of the pursuit, namely, because a warrant is against him. (3.) It must be a case of necessity, and that no such a necessity as in the former case, where an assault is made upon the officer; but this is the necessity, namely, that he cannot otherwise be taken. 2 H. Н., 119.

But though a private person may arrest a felon, and if he fly so as he cannot be taken without he be killed, it is excusable in this case for the necessity; yet it is at his peril that the party be a felon; for if he be innocent of the felony, the killing (at least before the arrest) seems at least manslaughter; for an innocent person is not bound to take notice of a private person's suspicion. 2 H. H., 119.

A person sworn and commonly known, and acting within his own precinct, need not show his warrant; but he ought to acquaint the party with the substance of it. 2 Haw., 85.

warrant.

But if he acts out of his precinct, or it is not sworn and commonly when bound known, he must show his warrant if demanded. 2 Haw., 85, 86. wahow Otherwise the party may make resistance, and needs not to obey it. Dalt., c. 169.

But if the constable has no warrant, but doth it by virtue of his office, as a constable, it is sufficient to notify that he is a constable, or that he arrests in the State's name. 1 Η. Η., 583.

If the constable come unto the party, and require him to go before the justice, this is no arrest or imprisonment. Dalt., c. 170.

For bare words will not make an arrest, without laying hold on the person, or otherwise confining him; but if an officer comes into a