for reafon to interpofe, fuch homicide will be murder. 1 Hark. P. C. 194. Fofler, 278. 296. 3. Two bailiffs, who killed a prifoner (Mr. Luttrel) in his own houfe, by giving him nine wounds with a fword, and fhooting him with a piftol when he was fallen on the ground, found guilty of manslaughter only, because it appeared that he had given one of them a blow with his cane. He had a fword which was drawn and broken; but how, did not appear. He had brought the piftols into the room, and declared he would not be forced out of his lodgings. He threatened the officers. Both the officers were flightly wounded. Rex v. Reafon and Tranter. 1 Stra. 499. Foft. 292. 4. If the captain of a ship has a prefs-warrant, dire&ing that no perfon but a commiffion-officer is to be entrusted with the execution of it, and his name to be inferted on the back of it; and he accordingly appoints his lieutenant, who flays in the fhip, and the captain fends his boat with fome of the crew to prefs, and fome leagues off they board a fhip, and attempt to prefs, and one of them is killed, it is manflaughter, for they did not act according to the warrant. Broadfoot's cafe, 1743. Fofler, 154. (0) How. By one in a Company, where it is Mur- 15Vin. 516. 1.ON der in another. an indictment for murder, if the jury find a special verdict, it is neceffary, in order to affect principals in the fecond degree, to ftate. 1ft, That they were actually prefent; or adly, Some acts done by them at the very time, which unavoidably fhew that they were prefent; 3dly, That they were of the fame party, on the fame purfuit, and under the fame engagements and expectation of mutual defence and fupport with the person who did the fact. Rex v. Borthwick and others, 1 Dougl 207. 2. Perfons prefent, aiding and abetting, are principals in the fecond degree, and are within the riot act and oufted of clergy. Rex v. Boyce, 4 Burr. 2073. 3. Rex v. Hodgson and others.. This was a special verdict upon an indictment for murder, found at the feffions houfe in the Old Bailey, to the following effect.-The prifoners, together with feveral others, were hired by one 7. S. to affift him in carrying away his household furniture, in order to avoid its being dif trained for rent. They accordingly affembled for this purpofe, armed with bludgeons and other offenfive weapons. The landlord of the house, accompanied on his part by another fet of men, came to prevent the removal of the goods, and a violent affray enfued. The conftable was called in, and he produced his authority, but could not induce them to difperfe. While they were fighting in the street, one of the company, to the jurors unknown, killed a boy who was ftanding at his father's door looking on, but, totally U 1 unconcerned 15 Vin. 519. unconcerned in the affray. The question was, Whether this was murder in all the company? This was fubmitted to the confideration of all the judges in the fhape of a referved cafe. They accordingly met, and the two chief justices were of opinion, that it was murder in all the company, because they were all engaged in an unlawful act, by proceeding in the affray after the constable had interpofed, and commanded them to keep the peace, especially as the manner in which they originally affembled, viz. with of fenfive weapons and in a riotous manner, was contrary to law, though the purpose for which they affembled, viz. to carry away the goods, was juftifiable. But the majority of the judges held that as the boy was found to be unconcerned in the affray, his having been killed by one of the company could not possibly affect the rest; for the homicide did not happen in profecution of the illegal act, and therefore the perfous, though constructively prefent, could not be faid to be aiding and abetting the death of one who was totally unconcerned in the defign for which the parties had aflembled. Cafes in Gr. Law, 7. 4. There are no principals in the fecond degree in privately ftealing from the perfon. Rex v. Innis, Ibid. 8. 5. If two perfons be indicted for murder, the one as a principal in the first degree, and the other as being prefent aiding and affisting to commit the crime, the jury may find the principal in the first degree not guilty, and convict the principal in the second degree. 6. Perfons prefent aiding and affifting in footing at another, though ufing no fire arms themselves, are principals, and within the penalties of the Black Act. The Coalheavers' cafe, Ca. C. L. 76. (P) Justifiable. In what Cafes, and Pleadings. 1. No doubt the forcibly attempting the commiffion of an unnatural crime may be refifted by the death of the aggreffor. 4 Bl. Comm. 181. 2. If a stranger interpofe to part combatants in an affray, giving notice to them of that intention, and they affault him, and in the ftruggle he should chance to kill, this would be justifiable homicide; for it is every man's duty to interpofe for the prefervation of the public peace, and the prevention of mischief. Foster, 272. 15Vin. 520. (Q) Juftifiable. Juftifiable. By Officers or Perfons having Warrants. 1. WHERE a fheriff, &c. attempting to make a lawful arreft in a civil action, or to retake one who has been arrested and made his escape, is refifted by the party, and unavoidably kills him in the affray, it is justifiable homicide. Foster, 270. 4 Comm. 180. 2. And in fuch cafe the officer is not bound to give back, but may ftand his ground, and attack the party. Fot. 292. 1 Stra. 499. 3. But no private perfon of his own authority can arreft a man for a civil matter, as he may for felony, &c. Neither can the sheriff himself lawfully kill those who barely fly from the execution of any civil procefs. Fofter, 271. IF (R) Excufable. F an officer of the imprefs fervice fire in the ufual manner, at the ballyards of a boat, in order to bring her to, and kill a man, it is only manslaughter. L. Mansfield, 2 Cowp. 832. (W) Indictment. Good or not. IN an indictment for murder it is perhaps a fatal mistake not to fhew the day and place of the ftroke as well as of the affault, becaufe thefe offences are of different kinds, the one being only a trefpafs, and the other a felony, and may well be intended to have happened at different times and places, and the giving of the ftroke being the principal offence, ought to be fet forth with the most exact certainty. 2. If a mortal wound be given upon which the party dies at another day, the death ought to be alleged at the laft day. 4 Com. Dig. 377. 3. An indictment for murder muft ftate that the prifoner gave the deceased a mortal wound. Lad's cafe, Cafes in C. Law, 112. (A) Punishment thereof by peine fort et dure, or 15 Vin. 527. I. ·BY Y ftat. 12 G. 3. c. 20. it is enacted, That if any perfon, being arraigned on any indictment or appeal for felony or piracy, fhall, upon fuch arraignment, ftand mute, fuch person shall be convicted of the felony or piracy charged in the indictment, and the court shall award judgment and execution against fuch person in the fame manner as if he had been convicted by verdict or confeffion, and fuch judgment shall have all the confequences in every respect as if fuch perfon had been convicted by verdict or confeffion, and judgment thereupon awarded. 2. Old Bailey feflion 1778. Francis Mercier, on his arraignment for murder, stood mute. The fheriff was directed to return a jury inftanter to inquire whether it was "through obstinacy, or "the vifitation of God."-The jury found that he stood mute "fraudulently, wilfully, and obftinately, and not by the provi"dence of God."-The judge immediately paffed fentence, and he was executed. Cafes in Crown Law, 218. I do not find it faid in any book (fays Serj. Hawkins) what fhall be done to a prifoner, who obftinately standing mute to an arraignment, fhall appear to be charged upon very light fufpicion; but I take it for granted, that he may be feverely fined and imprifoned for the contempt. 4 Pleas of the Cr. 234. Ne ereat Regno. 15 Vin 437. (B) Neceffary and grantable, in what Cafes and how. I. UPON a motion for a ne exeat regno, it was faid by Lord Chancellor, that this was originally confined to ftate affairs, and the intent of it was to prevent any perfon from going beyond fea, to tranfact any thing to the prejudice of the king or his government, but that now it was very properly used in civil cafes, but that to induce the court to continue it to the hearing the plaintiff must fhew that the debt is certain; but in this cafe there was nothing more than a demand by a wife against her husband, by virtue of a marriage agreement, in which the defendant obliged himself to fecure 1700l. out of his eftate, real and perfonal, to his wife, as a provifion in cafe fhe furvived him; but this is a contingency which may never happen. Motion denied. 1 Atk. 521, 1738. Anon. 2. On motion to prevent a defendant going out of the kingdom till he had put in his answer, the court ordered him to give fecurity to abide by the decree which fhould be made upon the hearing. 2 Atk. 66. 1740. Baker v. Dumarefque. 3. No inftance of a ne exeat being granted where it is not a mere equitable demand, except where a wife fued in the fpiritual court for alimony, and the husband threatened to leave the kingdom, and to aid that court, and out of compaffion to her, it was granted. 2 Atk. 210. 1741. Anon. 4. Motion for a ne exeat regno, against the wife of Glafs, who was executrix of her former husband. Glafs was already gone out of the kingdom, and it was doubted by the Lord Chancellor whether it could be granted, as he was a feme covert, and could give no fecurity, but the motion was afterwards granted. 3 Atk. 409. 1746. Ferningham v. Glass. Ambl. 62. S. C. 5. A ne exeat regno cannot be granted unless the plaintiff swears pofitively that the defendant is indebted to him in a certain fum. 3 Atk. 501. 1747. Mico v. Gualtier. 6. An affidavit to found a writ of ne exeat regno, must not only fay, that the defendant is indebted in fuch a fum, but must also mention the facts on which it arifes and on which it is grounded; and in this cafe the bill being against an adminiftrator, the affidavit ought to ftate, as to knowledge or belief, that affets had come to his hands; because the demand arifes in auter droit, otherwise it would be holding one to bail who could not be held to bail at law; and would detain a perfon here whom they had no right to detain, the demand arifing in auter droit. 2 Vef. 490. 1752. Anon. 7. The court will not grant a ne exeat regno where the perfon lives out of the kingdom, and the transaction was on the faith of having justice done where he refided. Ambl. 177. Ambl. 177. 1753. Ro bertfon v. Wilkie. 8. Motion for a ne exeat regno, the cafe appeared to be, that the contract was made in Carolina, that a bond was given, and was afterwards fatisfied by a payment in paper money, at the value which it then legally bore in that ftate. The state of Carolina afterwards paffed an ordinance, which made paper of that kind not a legal tender in tranfactions not complete. The parties being now here, the plaintiff applied for this writ, contending that he had an equity here from the nature of the payment there. Lord Chancellor refufed the writ, as no equity could arife here from a transaction legally fatisfied in the country where it arofe; and faid a writ of ne exeat never could be granted, but upon a clear demand. 1 Bro. Ch. Rep. 376. 1784. Anon. 9. Bill by infants against the adminiitratrix of an inteftate's eftate, (who had married again, and her fecond husband, for diftributive shares.) An application had been made for a ne exeat regno against the hufband of the administratrix on the affidavit of the wife, that he had poffeffed the perfonal cftate of the inteftate, and was going abroad; but the motion was refufed as the court would not receive the affidavit of the wife against the husband. 3 Bro. Ch. Rep. 11. 1789. Sedgwick v. Watkins. I Vef. jun. 49. S. C. 10. A bond had been given by the defendant to Saunderfon, and by him aligned to plaintiff. Saunderfon was fince dead, and nobody had administered to him. Motion for a ne exeat regno against the defendant, on an affidavit that he was going abroad, and in order to give the plaintiff time to obtain adminiftration to Saunderfon; refused, because the fuit without the original reprefentative of Saunderfon must be difmiffed for want of parties. 3 Bro. Ch. Rep. 25. 1789. May v. Fenwick. 11. A writ of ne exeat regno must be on an equitable demand. 3 Bro. Ch. Rep, 218. 1791. Atkinson v. Leonard. U 4 12. Motion |