did any serious injury to the officer, was an obstruction only, and not a deforcement.1 In like manner, if a tumultuous crowd take the poinded goods out of the officer's possession ; or he has got into the house and began to poind, and is pushed out again and the door barred in his face; or he is opposed by an armed posse, who shew their arms and forbid him access ; or if the opposers forcibly lock up the debtor, and lay hold of and master the officer so that he cannot get at him;5 or if they shall pull the debtor out of the messenger's hands after he has been taken into custody, and so give him the means of escaping; or shall break up the door of the room where the prisoner is, and so compel his surrender :-in all these and the like cases the opposer is guilty of deforcement, though the officer escape without any bodily harm. And this is evidently a wholesome and necessary rule; for bloodshed and murder would be of continual occurrence, if the officer was in every case compelled to persist till his life was brought into actual danger. un

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9. It is indispensable to the crime of deforcement that the diligence shall have been hindered being put in exeéution; but if this has once been done, it cannot be got quit of by the submission of the refractory parties."

If the officer, notwithstanding the most violent opposition, has succeeded in making good his point, the pannel cannot be indicted for deforcement, which his resistance has prevented from being carried into effect. The proper designation of such an offence is assault with intent to deforce, or with intent to revenge or prevent the execution of legal diligence. Nume rous instances of such indictments have occurred of late years. On the other hand, it is no less clear, that, if the resistance has once compelled the officer to abandon his purpose, no subsequent submission of the accused, or obedience to the law, will purge the offence, any more than a defence of subsequent restitution will elide a charge of theft. Such a defence accordingly was overruled in the case of Hamilton, January 1726.10;

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1 Unreported.-2 Hamilton's Case, December 1725.3 M Wallace's Case, Ayr, April 1830; unreported. Campbell's Case, July 1722; Hume, i, 395. - Duguid's Case, December 1. 1673.-6 Jean Steel and others, Dumfries, spring 1830; unreported.-7 Ramsay's Case, 23d November 1724; Hume, i. 395.8 Hume, i, 395.- Ibid 10 Ibid. i. 396.

#10. Every solemn act of an officer of the law, if resisted, will implicate the refractory party, or those aiding and assisting him, in the pains of deforcement.

It is of no importance in the estimation of law, what is the nature of the legal diligence which is prevented being carried into effect, whether letters of poinding, caption, or ejection, or the mere execution of a summons,1 or of a summary warrant to apprehend and imprison. The words of the act 1592 are quite general of ❝ all persons whatsoever," and of the precepts of all judges within the realm. On this principle the pains of deforcement have been found to have been incurred, even in the case of successful resistance to the precept of a baron court.1 As little does it make any difference what is the dignity of the court from which the warrant has emanated, whether letters under the King's Signet, or the precept of any inferior court, so as the warrant was not carried into execution beyond its proper territory.5 One numerous and important class of cases arises from the resistance of smugglers to the seizure of smuggled goods, or goods suspected to be smuggled, by officers of the customs or excise. In the case of John Costine, 7th January 1712, the statutes against deforcement were found to apply to the hindering of a steward officer from levying the mart-cow, or the cow which he was entitled to levy from each parish in his district. In the case of James Little and others, Jedburgh, spring 1815, the Court had no doubt that the pains of deforcement might be incurred by resisting the water bailies on the river Tweed, if acting legally; though in that particular case the indictment was dismissed as irrelevant, in respect that the local statute founded on required a written warrant, and gave no power to act without such warrant, except in the case of obstructions or illegal practices on the water, and that the officers in that particular case had no such warrant, and the matter of their interference did not fall within the exception specified in the statute.7

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All persons, of whatever description, or without exception, even of the highest, may be involved in the pains of deforcement; and the degree of accession which shall be held sufficient to implicate them, does not depend on any peculiar rule, but

1 Macneil's Case, July 1719.-2 Sinclair's Case, July 6. 1699.-3 1592, c. 152.1 Dict. of Decisions, i. 231.- Hume, i. 396.- Ibid. Ibid.

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on the general principles of art and part applicable to all offences. In the case of Hugh Fraser, July 20. 1675, the commanding the pannel's natural son to come up and relieve him from the messenger's hands, was found to render him art and part in the deforcement which followed. Nay, in the case of Thomas Mitchell, December 26. 1698, it was found relevant as a charge of deforcement, that the pannel, being a magistrate within his jurisdiction, twice refused to assist the messenger against the rabble who were obstructing him in the execution of his duty; but such tacit declining to support the authority of the law, would not be construed into an act of deforcement in the case of an ordinary individual.2

10. In modern practice, the pains of law for deforcement is imprisonment or fine; but in serious cases, or where the resistance has been attended with mobbing and rioting, or serious wounding of the messenger or his assistants, or the discharge of loaded fire-arms, transportation is not unfrequently inflicted.

In former times, and by the statutes 1581, c. 118, and 1587, c. 85, persons convicted of deforcement were directed to be punished with confiscation of moveables, and the placing of their persons at the King's will. But even in ancient times, when the unsettled state of the country rendered it necessary to chastise this crime with great severity, it does not appear that any farther corporal pains were inflicted than imprisonment, accompanied with the pecuniary penalties.3 - These patrimonial pains are escheats of moveables, the one-half to go to the King, the other half to the party whose diligence was hindered. To secure this, the sentence usually taxed the debt, and declared that the King's half shall be burdened with the balance, in case the private party's debt was not satisfied by his half. This was done in the case of Ramsay, November 27. 1724, and Macleod, July 1659.5

In other cases, the Court have at once, instead of confiscating moveables, decerned at once for a certain sum in name of fine or damages. This was done in particular in the case of James Macneil, July 1679, who was sentenced to pay 1000 merks

1 Hume, i. 397.-2 Duguid's Case, December 1. 1673; Hume, i. 397.— 3 Hume, i. 398.4 Ibid. Ibid.

Scots; and Joseph Watson, July 28. 1707, where the sentence was for payment of the debt, and a fine of 500 merks.1

More lately the practice seems to have gone entirely into disuse of decerning for the escheat of moveables, which would be no punishment at all in most cases, and a most severe one in others, and instead, sentencing the pannel to a certain period of imprisonment. In the case of William Calderwood, Ayr, April 1823, the case of the pannel, convicted of deforcing a messenger-at-arms, without any very aggravated circumstances, was certified to the High Court, for the purpose of fixing the sentence which should follow on the verdict, and the Court fixed on six months' imprisonment and caution to keep the peace.2 In the numerous cases of convictions for this offence which have taken place of late years, the sentence has usually been imprisonment for various periods, according to the magnitude of the crime; but where it has been coupled with a very aggravated assault, or mobbing or rioting of a dangerous character, or the discharging of loaded fire-arms, transportation has in general been the punishment. Of the more lenient course, the following instances may be given. At Inverness, spring 1823, on a confession of a charge of deforcement without any aggravation, John Fraser was sentenced to three months' imprisonment. At the same Circuit, Donald Macpherson, convicted of deforcing a revenue officer, without any aggravation, escaped with imprisonment for one month. At Aberdeen, spring 1823, John Gordon and others, for a simple deforcement, were sentenced to six weeks' imprisonment.5 At Inverness, September 1824, Robert Clark and others were sentenced to three months' imprisonment for a deforcement, accompanied with a slight assault to the effusion of blood.6

In more serious cases of assault with the deforcement the punishment has been much more severe. Alexander Gordon and others, Perth, spring 1826, were sentenced to twelve months' imprisonment for a deforcement of excise officers, accompanied by severe wounding of the revenue officers with sticks and stones.7. At Inverary, spring 1825, Donald MacCallum and others, convicted of deforcing officers of the revenue, accompanied with mobbing and rioting, were imprisoned for the like period. George Young, Perth, autumn 1824, re

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4` Hume, i. 399.—2 Shaw's Cases. Unreported. Unreported. Unreported. Unreported. Unreported. Unreported. Unreported.

ceived nine months' imprisonment for a violent assault and deforcement of a revenue officer in the streets of Forfar.1 At Dumfries, spring 1827, William Anderson received twelve months' imprisonment for a violent deforcement of a messenger-at-arms and constables in the execution of a warrant of caption. And in the case of David Morrison and Alexander Wardlaw, June 2. 1823, the prisoners, convicted of mobbing and rioting, with intent to prevent the execution of legal dili gence, were sentenced to nine months' imprisonment.3702

But where the deforcement has been accompanied, as it has too often been of late years, by discharging of loaded fire-arms at the revenue officers by bodies of armed men, a very different punishment has been deemed necessary, and certainly not without good reason. In the case of Charles Lamond, July 17. 1826, the pannel, convicted of deforcement, accompanied by a violent assault and discharging loaded fire-arms, though none of the officers were struck by the shot, was sentenced to fourteen years' transportation. And in the case of James Garden and William Garden, July 16. 1827, where the deforcement was committed by a large party of armed men in a Highland district, and one of the officers was shot through the body, though he recovered, the pannels were transported for life.5**

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12. Either the Lord Advocate, the messenger deforced, or the private party, owner of the diligence, may prosecute for deforcement; but the only Court competent to try a deforcement of the King's officers, is either the Court of Justiciary or Session, though inferior judges are all competent to take cognizance of any resistance to their own officers.

The interest of the private party, in a prosecution for deforcement, is obvious, as he has a right, in the event of a pecuniary penalty being awarded, to part of the fine or damages. In addition to these prosecutors, the title of the messenger and lord-lyon, even without the concurrence of the private party, was sustained in the case of Duguid, December 1. 1673. The Lord Advocate, of course, may prosecute for this, as every other offence.

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1 Unreported. Unreported. Unreported. Unreported. Unreported.