OF RESISTANCE OF PROCESS, ESCAPE, RESCUE, AND RETAKING. [ 63 ] Of detaining a custody. Where the offender has escaped, or is rescued, the justice may grant a fresh warrant to all officers within his district, reciting the former proceeding, and the escape or rescue, and directing the apprehension of the offender (a), or the prosecutor may obtain an escape warrant from the chief justice (b). When the party accused is already in custody in the King's party already in Bench, or other prison, in a civil action, he may be there charged criminally by merely leaving with the gaoler, the warrant of a justice of the peace or other magistrate, but such justice cannot take a prisoner out of the custody of the court, and send him to the county gaol (c); for the prisoner, in such case, can only be removed under the authority of an habeas corpus, issuing out of the court of King's Bench; and, in a late case, an habeas corpus was awarded to remove the body of the defendant out of the custody of the warden of the Fleet, to be examined in Somersetshire, upon a charge of forgery alleged to have been committed by him in that county, upon the production of a warrant, issued by the mayor of Bath, for his apprehension, and without any bill of indictment having been previously found against him (d); and in another case, the court of King's Bench granted an habeas corpus to the warden of the Fleet, to take the body of a debtor confined there before a magistrate, to be examined from time to time respecting a charge of felony or misdemeanor (e). A person having a day-rule from the King's Bench prison, may be taken on a warrant when out of actual custody of the marshal, and removed into his proper county, preparatory to his trial. When the party in custody on a civil action, is thus to be proceeded against criminally, the practice is for the magistrate before whom the complaint is laid, to take the information of the accuser and witnesses, and to issue his warrant, which is lodged with the keeper of the place of confinement where the defendant is kept in prison. This officer, on the termination of the civil imprisonment, sends for a constable, who takes the party before a justice of the peace, by whom the accuser, witnesses, and pri (a) Fost. 135. (d) Williams, J. Arrest, VI. 2 Barnard, 114. (e) 5 B. & A. 730. A PARTY ALREADY IN CUSTODY. [ 64 ] soner, are examined, and the latter is discharged, bailed, or com- OF DETAINING mitted as on an original accusation. When the party is already in gaol on a criminal charge, and fully committed for trial, it is not usual to bring him from his first custody before a magistrate on a subsequent charge but the examination of witnesses is taken as in ordinary cases, and a warrant of detainer is sent to the gaoler in whose custody he remains. By this means it will appear on the calendar, that he is charged with two offences, and if acquitted on that for which he was first committed, his discharge will be prevented, and if the offence was committed in another county, he may be sent thither by habeas corpus to take his trial at the assizes. A prisoner in custody on a criminal account, cannot be charged in a civil action with a declaration or in execution (a) without leave of the court (b) or a judge; though, if he accept a declaration and suffer judgment to go against him without complaining, he waives all objection, and will be bound by it (c); and one who is attainted of felony, or even treason, may be charged with a civil action by leave of the court or of a judge, so as it be not to defeat the effect of the king's pardon, by disabling him from going abroad (d). But a habeas corpus will not in general be granted to bring up a prisoner in custody, in execution, on a criminal account, in order to have him charged with a declaration, and re-committed to his former custody so charged (e). But a prisoner in custody to take his trial may, on behalf of his bail, be removed by habeas corpus, from the Cold Bath prison, and rendered in discharge of his bail, and committed to Newgate (ƒ). The court of Chancery will make an order that a prisoner in custody on a criminal charge shall be brought up for want of an answer, and turned over to the Fleet, and then carried back to Newgate with his cause (g). Where the party, (a) Prac. Reg. 325. Prac. 8th edit. 347. Tidd's (4) T. Raym. 58. 1 Sid. 90. S. C. 1 Lev. 124. 1 Sid. 154. S. C. 1 Lev. 146. 1 Salk. 354. R.T. 2 Geo. 1. (a). (e) Cas. Pr. C. P. 31; and see 1T. R. 591. 1 Chit. Rep. 386. (d) 2 Salk. 500. 2 Ld. Raym. 848. Tidd, 8th edit. 347, and (e) 2 New Rep. 245. 3 J. B. Gunn v. Cromer, Trin. (g) 1 Ves. & B. 78. 2 Dick. A PARTY OF DETAINING in custody on a criminal account, is brought up to be charged in a civil action, the court will in general remand him to his former custody (a). ALREADY IN Of search warrants. [ 65 ] As the discovery of stolen goods frequently leads to the detection of the offender, it may be proper here to consider Search Warrants. Formerly, according to Lord Coke (b), such warrants were contrary to law, and Lord Camden (c) said, that they had crept into the law by imperceptible practice; but Lord Hale clearly establishes their legality, on the ground that without them, felons would frequently escape detection (d), and by statute 22 Geo. 3. c. 58. s. 2. (e), it is made lawful for any one justice of the peace, upon complaint made before him, upon oath, that there is reason to suspect that stolen goods are knowingly concealed in any dwelling-house, or other place, by warrant under his hand and seal, to cause every such place to be searched in the day-time; and the person knowingly concealing the stolen goods, or in whose custody the same shall be found, being privy thereto, shall be deemed guilty of a misdemeanor, and shall be brought before any justice of the peace for the district, and made amenable to answer the same by like warrant of any such justice. There are other Acts of Parliament of a similar nature relative to coining (ƒ), having in possession naval and military stores (g), and goods stolen from on board ships in the Thames (h), and to the taking of idle and disorderly persons (i), in order to recruit the land forces and marines, and under the vagrant act, 5 Geo. 4. c. 83. s. 8. a justice may order the trunks, bundles, &c. of vagrants to be inspected; and by s. 13. he may grant his warrant to search lodging houses, &c. suspected to conceal vagrants. But a search warrant for libels and other papers of a suspected party is illegal (k); for, as observed by Lord Caniden (7), the difference between seizing stolen goods and private papers of the party accused is apparent. In the one, I am permitted to seize my own goods which are placed in the hands of a public officer, till the felon's conviction shall entitle me to restitution. In the other, the party's own property would be seized before, and without conviction, and he have no power to reclaim the goods, even after his innocence is cleared by acquittal. The search warrant is not to be granted without oath (a) made before the justice, that the party complaining has probable cause to suspect his property has been stolen, or is concealed in such a place, and shewing his reasons for such suspicion (b). The oath need not positively and directly aver that the property has been stolen (c). The warrant should direct the search to be made in the day-time (d), though it is said, that where there is more than probable suspicion, the process may be executed in the night (e). It ought to be directed to a constable, or other public officer, and not to a private person, though it is fit that the party complaining should be present, and assisting, because he will be able to identify the property he has lost (f). It should also command, that the goods found, together with the party in whose custody they are taken, be brought before some justice of the peace, to the end that, upon further examination of the fact, the goods and the prisoner may be disposed of as the law directs (g). But though there are precedents of general warrants to search all suspected places for stolen goods (h), these are not at common law legal, because it would be extremely dangerous to leave it to the discretion of. a common officer to arrest what persons, or search what houses he thinks fit (i). And in the great case of Money v. Leach (k), it was declared by Lord Mansfield, that a warrant to search for, and secure the person and papers of the OF SEARCH [ 66 ] OF SEARCH author, printer and publisher of a libel, is not only illegal in itself, but is so improper on the face of it, that it will afford no justification to an officer acting under its sanction. And by two resolutions of the House of Commons such general warrants were declared to be invalid. At present, therefore, a search warrant must specify the place to be searched, as well as the particular person to be taken, unless it be founded on some particular statute. With respect to the mode of executing this warrant, if the door be shut, and, upon demand, not opened, it may be broken open, and so may boxes, after the keys have been demanded, and though the goods be not found, the officer will be excused (a); though if the party obtaining the warrant acted maliciously, he is liable to a special action on the case, but not to an action of trespass (b). But the officer must strictly observe the directions of the warrant, and if he be directed to seize only stolen sugar, and seize tea, he will be a trespasser (c). So a warrant under the vagrant act to search all suspected houses, for idle and disorderly persons, is strictly confined to persons of that description, and the officer [67] will not be justified if he attempt to execute it in any other places than those intended by the statute (d). If on the return of the warrant before the justice it appear that the goods were not stolen, they are to be restored to the possessor; if it appear they were stolen, they are not to be delivered to the proprietor, but deposited in the hand of the sheriff or constable, in order that the party robbed may proceed by indicting and convicting the offender, to have restitution. The party who had the custody of the goods is to be discharged if they were not stolen: and if they were, not by him, but by another person, who sold or delivered them to him, and it appear that he was ignorant of the mode in which they were procured, he may be discharged, but bound over to give evidence as a witness against him that sold them if it appears, that he knew them to be stolen, then he should be bound to answer the felony, for there is a probable (a) 2 Hale, 157. Dougl. 359. 2 Wils. 284. 3 B. & P. 228. (b) 2 Hale, 151. Hawk. b. 2. c. 13. s. 17. n. 6. 3 Esp. Rep. 135. (c) 2 B. & P. 158. 2 M. & S. 261. 2 Wils. 291, 2. (d) 1 Leach, 208. |