66

66

"any person shall assault, beat, or wound any constable, officer, "headborough, or other person whomsoever, with intent in so doing, or by means thereof, to obstruct, resist, or prevent the "lawful apprehension or detainer of any person charged with, or "suspected of, felony; or if any person charged with, or suspected of, felony, shall assault, beat, or wound any constable, "officer or headborough, or other person whomsoever, with in"tent in so doing, or by means thereof, to obstruct, resist, or pre"vent his or her apprehension or detainer; then, and in every or any such case, if the person or persons so offending shall be con"victed of a misdemeanor only, it shall be lawful for the court, "by or before whom any such person or persons shall be so con"victed as aforesaid, to order and direct, in case it shall think fit, "that such person or persons shall, in addition to any other "pains, penalties, or punishment to which he, she, or they are now subject or liable, be kept to hard labour for any term not exceeding two years, and not less than six months."

66

66

&c.

+ Sect. 16. SEVENTHLY, By 25 Geo. 2. c. S7. s. 9. it is enacted, Rescuing a con"That if any person or persons whatsoever shall by force set at vict for murder, "liberty or rescue, or attempt to rescue or set at liberty, any "person out of prison who shall be committed for, or found guilty

66 of, murder; or rescue, or attempt to rescue, any person con"victed of murder, going to execution, or during execution, every person so offending shall be deemed guilty of felony, and suffer "death, without benefit of clergy."

murderer.

Sect. 17. EIGHTHLY, By 25 Geo. 2. c. 39. it is enacted, Rescuing the "That if any person or persons whatsoever shall, after such exe- dead body of a "cution had, by force rescue, or attempt to rescue, the body of "such offender out of the custody of the sheriff, or his officers, during the conveyance of such body to any of the places directed "by the act; or shall by force rescue, or attempt to rescue, such "body from the company of surgeons, or their officers or servants, or from the house of any surgeon where the same shall "have been deposited in pursuance of this act; every person so "offending shall be transported for seven years, and shall be sub"ject to the like punishment, &c. in case of returning, as by law "other felons returning from transportation are subject to."

66

By 2 Will. and
M. sess. 1. c. 5.

s. 4. persons

guilty of

any

Sect. 18. NINTHLY, By 11 Geo. 2. c. 26. " If any persons, to "the number of five or more, shall, in a tumultuous and riotous manner, assemble themselves to rescue any offender against "9 Geo. 2. c. 23. or to assault, beat, or wound any person or pound breach, persons who shall have given, or be about to give, any infor- or the rescous of any goods or "mation or evidence against, or shall have discovered or given chattels dis❝evidence against, or be about to discover or give evidence trained for rent, against, seize or bring to justice any person or persons offend- or of the owner of any goods so ing against the said act, they, their aiders and abettors, shall be distrained, shall guilty of felony, and the court, on conviction, shall have power pay treble da"to transport them for seven years."

mages, &c. &c. Vide Raym. 19. 342. C. C. C. 120. and 461.

offender on the Black Act.

Sect. 19. TENTHLY, By 9 Geo. 1. c. 22. commonly called Rescuing an The Black Act, "If any person or persons shall forcibly rescue "any person being lawfully in custody of any officer or other 66 person,

66

66

person, for any of the offences mentioned in the act, or if any person or persons shall by gift, or promise of money, or other "reward, procure any of his majesty's subjects to join him or them in any such unlawful act, every person so offending shall suffer death, without benefit of clergy."

66

See 2 Ses. Cas. 176.

1 Wils. 300.

F. Corody, 4.

For contempts
in Chancery,
vide 2 Com.
Dig. 39 to 42.
Rastal, 268.
1 Bar. K. B.
110.

CHAP. XXII.

OF ATTACHMENT.

HAVING shewn in what manner offenders may be apprehended without process from a court of record, I am now to shew in what manner they may be brought into court by such process. Of Process from a court of record there are two sorts.

1. Such as may be awarded by the discretion of the justices upon a bare suggestion, or their own knowledge, without any Appeal, Indictment, or Information.

2. Such as can be awarded only upon such accusations.

The FIRST is generally called an attachment, and is properly grantable in cases of contempts, against which, for the most part, all courts of record generally, but more especially those of Westminster-Hall, and above all the Court of King's Bench, may proceed in a summary manner, according to their discretion.

Sect. 1. If the contempt happen to be done by a person present in the court, and it appear either from the confession of the party on his examination upon oath, or by the view or immediate observation of the judges themselves, the court may immediately record the crime, and commit the offender, and also inflict such Raymond, 376. further punishment as shall seem proper.

C. Car. 146. 1 Roll, 315. 1 Bar. K. B. 353.

Salkeld, 84.

8 Mod. 123. Black. 892.

2 Stra. 1068.

3 H. 7.6.
22 Ed. 4. 33.
34.

And if such offences be done by a person not present in court, and be complained of by affidavit, the court will either make a rule on the party to attend at a certain day, in order to answer the matter of the complaint against him; or else will make a rule upon him to shew cause why an attachment should not be granted against him; or else, if the offence be of a very exorbitant nature, as for words of contempt of the court itself, will grant an attachment on the first complaint, without any such rule to shew cause,

And the party who is ordered to attend the court in pursuance of such rule, ought regularly to appear in proper person, and not by attorney; as also must every one against whom an attachment is granted.

And if the offence be of a heinous nature, and the person attending the court upon such a rule to answer it, or appearing upon an attachment, be apparently guilty, the court will generally commit him immediately, in order to answer interrogatories, to 6 Modern, 73. be exhibited against him in relation to such contempt.

But if

there be any favourable circumstances to extenuate or excuse the offence, or if it appear doubtful whether the party be guilty of it

or

or not, the court will generally in their discretion suffer the party, having first given notice of his intention to the prosecutor, to enter into a recognizance to answer such interrogatories; and if

no such interrogatories be exhibited within four days after such See Rex, v. recognizance, will discharge the recognizance upon motion; yet Horsley, 5 Term if the party do not make such motion, and the interrogatories be Rep. 362. exhibited after the four days, the court will compel him to answer them.

Mich. 11

Annæ.

But in all the cases abovementioned, if the party fully purge The Queen himself upon oath, in his answer to such interrogatories, of the and Barber, whole matter charged upon him, the court will discharge him of Ana. the contempt, and leave the prosecutor to proceed against him 6 Modern, 73. for the perjury, if he thinks fit: but if the party confess part of 2 Jones, 178. Douglas, 498, the contempts in his answer to such interrogatories, and deny 499. others, the court will not discharge him from the contempts so 3 Burr. 1329. denied, but will proceed farther to examine the truth of them, 12 Mod. 348. and will inflict such punishment as from the whole shall appear Comb. 63. reasonable: neither will the court discharge the party upon a shifting or evasive answer to any material part of the charge against him, but will punish him in the same manner as if he had confessed it. (1)

But for the better understanding in what cases the court may proceed in the manner abovementioned against such offenders, I shall endeavour to shew,

I. Where it may so proceed against the ministers of the court.
II. Where against others.

As to the FIRST of these POINTS I shall consider,

1. Where it may so proceed against sheriffs, bailiffs of franchises, and sheriffs bailiffs.

2. Where against attornies, and others acting as such.
3. Where against other officers.
4. Where against jurors.

(1) The object of an attachment is to bring the party personally before the court. On appearance he is permitted to enter into a recognizance with two sureties, in such sum as the court shall direct, to appear and make answer, upon oath, to such interrogatories as shall be exhibited against him. Barnard, K. B. 58. After the interrogatories are filed, and not before, the party may confess the contempt, unless in the case of a rescue, or for contempt in the face of the court, 1 Black. 649, and submit to the mercy of the court, 1 Black. 6. Otherwise examinations are taken thereon, and referred to the master of the crown-office to make his report. B. R. H. 23. But the party is not obliged to answer any interrogatories tending to convict him of any other offence, Strange, 444, or which may subject him to a penalty, B. R. H. 239. Upon these examinations the master is to make his report, and the party is then, and not before, either acquitted of the charge, or adjudged in contempt, B. R. H. 23, and in the latter case, is either immediately sentenced or committed to

As

511.

the marshal, unless the court wave giving judgment, and order the recognizance to be discharged, 3 Burr. 1256, or the Attorney-General consent that he may continue upon the recognizance to appear, under a rule of court, at some future time, 2 Burrow, 797. 4 Burr. 2105. The master's report cannot be moved for the last day of term, unless upon extraordinary cases, without permission of the court, 1 Black. 311, such as in attachments for non-payment of costs, or not returning a writ, 1 Burrow, 651. Nor will the court grant a day-rule to one committed for a contempt. 1 Barnard, K. B. 167.

NOTE. Motions and affidavits for attachments in civil suits are proceedings on the civil side of the court of king's bench until the attachment issue, and are to be intitled with the names of the parties; but as soon as the attachments issue, the proceedings are on the crown side, and from that time the king is to be named as the prosecutor. 3 Term Rep. 253.

Dyer, 218.

(a) Noy, 101.

As to the first of these particulars I shall endeavour to shew, 1. Where the court may so proceed against sheriffs, bailiffs of franchises, and sheriffs bailiffs, for not executing a writ.

2. Where for doing it oppressively.

S. Where for not doing it effectually.

4. Where for making a false return.

As to the first particular, viz. In what cases the court may proceed in the manner abovementioned against sheriffs, bailiffs of franchises, and sheriffs bailiffs, for not executing a writ.

Sect. 2. It seems clear from the general reason of the law, which gives all courts of record a kind of discretionary power over all abuses by their own officers, in the administration or execution of justice, which bring a disgrace on the court themselves, as not taking sufficient care to prevent them, that whereever it shall appear, that any such officers have been guilty of any corrupt practice in not serving any writ-as where they refuse to do it, unless paid an unreasonable gratuity from the plaintiff—or receive a bribe from the defendant-or give him notice to remove his person or effects, in order to prevent the service of any writ, the court, which awarded it, may punish such offences in such manner as shall seem proper by attachment, &c. as well as the court of king's bench, which has a general superintendency over all crimes whatsoever (as the Star-chamber (a) had also formerly), but commonly leaves offences of this kind, in relation to causes in other courts, to be punished by such courts to which they more immediately belong (b). But if there neither appear to have been any palpable corruption in the case, nor particular obstinacy, as by disobeying a special rule of the court, in relation to the service of such writ, nor other extraordinary circumLasely v. Wes- stances of wilful negligence, the judgment whereof is to be left to the discretion of the court, it seems not to be usual to grant an attachment in such cases, but to leave the party to his ordinary remedy against the officer; which he may have either by serving him with rules to return the writ, &c. or by suing him for the damage sustained by his negligence, in an action of (c) F. N. B. 38. escape, or on the case, or by taking out an alias (c) and pluries,

(b) 2 Bar. K.
B. 277.
1 Vent. 11.
Strange, 567.
Hob. 264.

ton. See F. Process, 13. 104.

47.265.

Finch, 237. 264. 62, 263. Hob.

(d) 2 Bl. Rep. 912. 1218.

which if the sheriff do not execute, an attachment, directed to the coroners, goes against him of course, unless he give a good excuse for his not having done it. And if the coroners do not execute the writ, the court will, in the first instance, grant an attachment against them directed to elizors (d).

As to the second particular, viz. Where the court may proceed in the manner abovementioned, against a sheriff, or bailiff, &c. for an oppressive practice in the execution of a writ.

Sect. 3. It is every day's practice to grant attachments for misdemeanors of this kind, as for using needless force, violence, and terror, in making an arrest; or by breaking open doors where by law it is not justifiable, and there is no plausible excuse for doing 11 H. 6. 42, 43. it; or treating the persons arrested basely and inhumanly; or

keeping

keeping them in custody till they consent to pay money for their deliverance; or making an arrest without due authority, as by force of a blank (a) warrant, filled up with the name of a special (a) Noy, 101. bailiff by the party himself, or bailiff, without the privity or sub- Moor, 770. sequent agreement of the sheriff.

Yet I have sometimes known attachments of this kind denied, in respect of the common use of the practice, which by experience hath been found to be almost necessary in some cases to prevent the defendant's having notice of the intended arrest; and therefore, if it shall appear to the court, that there was any such reasonable cause for such a proceeding, it will be a great inducement to excuse, if not wholly to dispense with it.

As to the third particular, viz. Where the court may proceed in the manner abovementioned against a sheriff, or bailiff, &c. for not executing a writ effectually.

2 R. Abr. 278.

2
330.

36 H. 6.1.

Sect. 4. It seems clear, that where any such officer is guilty of 2 Burr. 797. any corrupt practice in depriving the party who sues out a writ Douglas, 446. of that benefit and advantage which he ought to have from the Bar. K. B. execution of it, he is liable to be punished in the manner above- (b) F. Process, mentioned; as if he levy the debt by virtue of an execution, and 13. 32. keep the money in his own hands, and embezzle it: but unless (c) Rastal, 109. Capias, pl. 20, there appear some gross and palpable corruption in a sheriff neg- 189. pl. 20. lecting to return a writ, which hath been executed by him, or to 21, 22. bring in the body, or the money, &c. according to his return, the 670: pl. court will hardly grant an attachment against him immediately, Con. but will rather proceed against him by rules to return the writ, B, Process, 25. &c. and if he do not obey them, will increase the amercements Vicont. 35. upon him till he do, or perhaps grant an attachment for the con- 3 H. 7. 11. tempt: and (b) if the sheriff return, that he sent the process to the bailiff of a liberty, who hath given him no answer, a non omittas shall be awarded to the sheriff: and if he return, that he sent the process to such bailiff, who hath returned a cepi corpus, or such like matter, and the bailiff bring not in the body or money, &c. at the day, by the better (c) opinion the bailiff shall be amerced, and a writ (d) shall issue to the sheriff, to distrain the bailiff to bring in the body, &c.

F. Return de

47 Assize, 6.

(d) F. Process, 12, 14. 104.

122. 132. 135.

225. Execution, 101.

Return de Vicont. 35.

27 Ed. 3. 83.

27 Ed. 3. 77. Rastal, 109.

Capias, pl. 20. B. Process, 25. 48. 113. 115. B. Return, 96. 99. 5 Ed. 4. 14. 11 H. 4. 43. 38 E. 3. 1. 39 Ed. 3. 3. 8 H. 5. 2.

As to the fourth particular, viz. Where the court may proceed in the manner abovementioned against a sheriff, &c. for making a false return to a writ.

100.

Sect. 5. There seems (e) to be no doubt, but that wherever (e) F. Process, 5. any such officer endeavours to impose upon a court, by making B. Surmise, 19. a return to a writ of a matter known by him to be false, he is, in Return de Brief, strictness, liable to be punished in this manner, for his contempt. Rastal, Habeas Yet it seems, that the court will not easily be prevailed on to Corpus, 7. proceed in this manner for a bare false return, but will rather leave the party injured by it to his remedy by an action on the case, unless there be some extraordinary circumstances of hardship or oppression; as where (f) an officer who had arrested one (ƒ) 11 H. 6. on a capius, returned, that he had taken him, but that the party 42, 43. Sayer, 121.

VOL. II.

P

was