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An action on the case may be brought against a justice of the peace for a malicious conviction without probable cause.—5 Taunt. 580.
3. Attachment for Contempt of Courts.
Such contempts may be committed—
By inferior judges and magistrates in acting unjustly, tac.f or disobeying the king's writs of prohibition, certiorari, &c. —4 Bl. C. 284..
By sheriffs, bailiffs, gaolers and officers, in abusing the process of the law.—Ibid.
By attornies and solicitors, in malpractice.—Ibid.
By jurymen, in misconduct in the discharge of their office.—Ibid.
By witnesses, in making default when summoned, refusing to be sworn or examined, or prevaricating.—Ibid.
By parties to suits, in disobedience to rules or orders of the courts.—Ibid.
Or by other persons, in rescues and the like; disobedience to the king's writs; treating his writ or the rules of the court with disrespect; perverting process to oppressive purposes; speaking or writing contemptuously of the courts or judges in their official capacity; printing false accounts of causes depending: rude and contumelious behaviour, or breach of the peace, in the face of the court, and the like. —Ibid.
For all such offences the superior courts have power to proceed in a summary way.—Ibid. 286.
If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned at discretion of the judges, without further proof or examination.— Ibid.
But in matters which arise at a distance, if the judges, on application, supported by affidavit, see sufficient ground to suppose that a contempt has been committed, they either make a rule to show cause why an attachment should not issue, or, in very flagrant cases, an attachment issues in the first instance.—Ibid.
This process is to bring the party into court; and when there, he must either stand committed, or put in bail, to answer on oath to interrogatories to be administered to him touching such contempt.—Ibid. 287.
His confession of the contempt will in general not avail to save him from the necessity of answering the interrogatories.—4 Burr. 2105; 1 W. Bl. 637.
If he wilfully and obstinately refuses to answer, or answers evasively, his contempt is aggravated, and his punishment will be increased.—4 Bl. C. 287.
If in his answer he clears himself, he is discharged. Otherwise, the court proceeds to correct him by fine or imprisonment, or both, and sometimes by corporal punishment.—Ibid.
In courts of equity, after the party in contempt has answered the interrogatories, his answers may be contradicted and disproved by affidavits of the adverse party; but in the courts of law this is not allowed, and if the party in contempt clears himself by his answers, the complaint is totally dismissed.—Ibid. 288.
And on the practice of attachment in general, see 1 Tidd, 484, (8th ed.)
Such is the course of proceeding upon actual contempts; but when an attachment issues for that sort of constructive contempt which consists in not obeying a rule or order of the court, made in the course of a cause, for payment of costs, performance of an award, or the like, this is looked upon rather as a civil execution than a criminal process, and upon such attachments, therefore, the mode of proceeding is different from that above described. Upon these, no interrogatories are administered, nor is any punishment inflicted; but upon non-payment of the money, &c. the party is committed to prison for satisfaction of the demand, as in any other case of civil debt. And to this latter species of attachment, persons having privilege of parliament are not liable, though they are liable to attachment for an actual contempt. But by 10 Geo. III. c. 50, obedience to any rule of court may be enforced against persons having privilege of parliament, by the process of distress infinite.
Arrest is the apprehending of the person, in order that the party may be forthcoming to answer an alleged or suspected crime.—4. Bl. C. 289.
1. Arrest by Warrant.
A warrant may be granted in extraordinary cases by the privy council or secretaries of state; by the speaker of the House of Commons or Lords; by justices of gaol delivery or oyer and terminer; by justices at sessions; or by a judge of the Court of King's Bench: but warrants are most usually issued by a single justice of the peace.—Ibid. 290, and 1 Chitty's Cr. Law, 34.
At common law a judge of the King's Bench may issue a warrant in his own name into any county of England or Wales for the apprehending and bringing before him any persons touching whom oath is made of a felony committed, or of suspicion of felony. But to avoid the trouble of bringing up the party, the judges of the King's Bench, when they issue warrants, usually direct the party to be apprehended and brought before some justice of the peace near adjoining, to be proceeded against according to law.— Ibid. 36.
By 48 Geo. III. c. 58, whenever any person shall be charged with any offence for which he may be prosecuted by indictment or information in the King's Bench, (not being treason or felony,) any judge of the same court may issue hia warrant under his hand and seal to apprehend him, and take sureties for his appearance in the same court.
A justice of the peace has power to issue warrants in all treasons, felonies and breaches of the peace, for which the party is punishable with corporal punishment, within the places over which his jurisdiction extends.—4 Bl. C. 290; 1 Chitty's Cr. Law, 35.
He may issue a warrant to apprehend a person accused of felony, though not indicted.—4 Bl. C. 290.
Or a person suspected of felony, if the party who prays his warrant shows probable ground of suspicion.—Ibid.
In both cases the party requiring a warrant should be examined as to the facts upon oath, and all charges, of whatever nature they may be, should be taken in writing. —Ibid., and 1 Chitty's Cr. Law, 34.
The warrant ought to be under the hand and seal of the justice, (though perhaps a seal is not essential, unless where expressly required by act of parliament,) and should set forth the time and place of making, and for what cause; and should be directed to the constable or other peace officer, (or to any private person by name,) requiring him to bring the party either generally before any justice of the peace for the county, or specially before the justice who grants it.—4 Bl. C. 290, 291.
A general warrant to apprehend all persons suspected, without designating any person in special, is illegal and void. — 1 Bl. Rep. 555; 3 Burr. 1742; Com. Journ. 22 April, 1766.
By 24 Geo. II. c. 44, a warrant properly penned, even though the magistrate exceeds his authority, will indemnify the officer who executes it.
But an officer will not be protected where he acts without warrant.—3 Esp. 226.
Nor unless he acts strictly in obedience to the warrant. —3 Burr. 1768; 6 B. & C. 351.
An officer is bound to execute a warrant received by him so far as the jurisdiction of the magistrate and himself extends.^ Bl. C.291.
If a person commits felony, and, a warrant being out against him, flies or resists the officer, and is killed by the officer in the attempt to take or detain him, (there being no other means of preventing an escape,) the homicide is justifiable.—! Hale, P. C. 4«9; 1 East, P. C. 248.
And the case is the same, though the party so flying or resisting is in fact innocent of the crime charged, if he be the person named in the warrant.—1 Hale, P. C. 490; Fort. 318; 1 East, P. C. 300.
And the officer may break open doors to execute a warrant for treason or other felony, or breach of the peace, if upon demand of admittance, it cannot otherwise be obtained.—4 Bl. C. 294; 1 Chitty's Cr. Law, 56. (Vide sup. .140.)
And if he or his assistants be killed in the regular execution of his duty, with intent to oppose him in his duty, it is murder.—4 Bl. C. 292.
An arrest may be made in the night.—1 Chitty's Cr. Law, 49.
And though by stat. 29 Car. II. c. 7, arrests in general are prohibited on a Sunday, cases of treason, felony and breach of the peace are excepted.—Ibid.
A warrant from a judge of the King's Bench extends all over England and Wales.—4 Bl. C. 291; 1 Chitty's Cr. Law, 36.
But a warrant of a justice of the peace in one county must be backed, that is, signed, by a justice of the peace in another county before it can be executed there.—Ibid. And see 23 Geo. II. c. 26; 24 Geo. II. c. 55; 28 Geo. III. c. 49.
By 13 Geo. III. c. 31; 44 Geo. III. c. 92; 45 Geo. III. c. 92; 48 Geo. III. c. 58, and 54 Geo. III. c. 186, regulations are made to provide for the apprehension of persons who have gone from one part of the United Kingdom to another; and, independently of these statutes, a justice may grant a warrant to apprehend a person who, being found within his jurisdiction, has committed an offence in Ireland, or in a foreign country, or on the high seas; and the secretary of state for Ireland may by his warrant remove a prisoner there, to be tried in England, for an offence committed in England.—1 Chitty's Cr. Law, 35. 46.
A justice of the peace may issue a warrant to a constable, both to apprehend a person suspected of felony, and to