
    * Commonwealth versus Loring S. Field.
    A sheriff may appoint one his aid without writing; and such aid, in the execution of civil process, is entitled to the protection of the law equally with the sheriff, although not in his sight, provided both are pursuing one business or object.
    The defendant was indicted, at the last May term of this Court, in the county of Franklin, for assaulting and beating one Samuel Rich, when performing the duty of an assistant or aid of-Bates, a deputy sheriff in that county, when in the execution of the duty of his office ; and for rescuing Warren JL. Field, who (as was alleged) had been arrested upon an execution in favor of Messrs. Jackson fy Waimoright, for $ 99.64.
    At the trial before Putnam, J., it appeared, that the defendant was the brother of the execution debtor ; and it was proved, that Rich had the execution, to collect the money due thereon for the use of the creditors, and delivered it to Bates to be served. He then proposed to be appointed an aid or assistant of Bates in the business To this Bates assented, and verbally appointed him his aid. Rich then stated, that he was acquainted with the debtor ; who possibly migh. be willing to pay, or compromise the matter, without further trouble ; and therefore proposed, that he should go forward and converse with the debtor, who was at the house of the defendant To this Bates assented, and agreed to follow ; and he testified, that he expected that Rich would not permit the debtor to escape, but would arrest him, if he should attempt to get away. Rich then went forward, and Bates followed. The defendant was at his house. The debtor, alarmed at the approach of these men, ran out of the door of the defendant’s house towards the woods. Rich then beckoned to Bates, who was in sight, and called to him to “come on.” The debtor ran into the woods, Rich pursuing him, the defendant pursuing Rich, and Bates following them. As Rich was pursuing, he told the debtor to stop, saying that he had nothing against him but what he could meet or settle. • On this the debtor looked round, but continued running. At last Rich overtook the debtor, -who defended himself with a *club, giving to Rich a blow on the head. Rich then seized the debtor, telling him, at the same time, that he was his prisoner. The debtor made no demand by what authority Rich acted. Nothing more was said than is above stated. A violent struggle then ensued between Rich and the debtor, which was continued until the defendant came up with them ; who, without demanding of Rich by what authority he seized his brother, immediately gave Rich several severe blows upon his head with a club, which stunned him. He hallooed, Murder ! which was heard by a man at work in the woods about thirty rods off, who immediately ran, with the intention of preserving the peace, and separated them. At that instant the debtor ran off, and has not since been heard of in this Commonwealth. Immediately afterwards Bates arrived, but not in season to arrest the debtor. There was no written appointment of Rich to be an aid or assistant of Bates.
    
    The jury were instructed, that a verbal request was sufficient ; that, if they believed the facts testified and before stated, Rich might be considered as acting as an aid or assistant of the officer, although not in his sight; provided the jury believed, that they were both pursuing one business or object; — that an arrest by the aid or assistant, under such circumstances, would be, to all intents and purposes, as valid as if the same had been made by the sheriff’s proper hand; — and that the aid or assistant would be under the same protection of the law as the sheriff himself.
    The jury found the defendant guilty ; and he moved for a new trial for misdirection. If, upon these facts, the Court should be of opinion that the defendant ought not to have been convicted, the verdict was to be set aside, and a new trial granted. Otherwise, &c.
    
      Newcomb, for the defendant,
    argued, that the arrest, in this case, was not legal, and, of course, there was no rescue.  The sheriff has no authority to take assistants with him for the éxecution of merely civil process, unless *he has good reason to believe that he shall be resisted. And, in that case, if he would clothe them with authority to execute process, he must do it by writing at least. A parol appointment is not sufficient.  To claim the protection of an officer, the assistant must be in the officer’s presence, at least constructively.  In this case Rich was wholly out of the reach of Bates■ He did not even declare by what authority he made the violent attack upon the debtor ; who had no cause to apprehend that he was clothed with the authority of law. Had Rich been killed in the rencounter, it would never have been ruled to be murder in the defendant, Rich having shown no war rant. 
    
    
      Morton (Attorney-General), for the 'Commonwealth.
    
      
       6 Mod. 210.
    
    
      
      
        Bull. N. P. 63.
    
    
      
      
        Blatch vs. Archer, Cowp 63.
    
    
      
      
        Moor, 767. — 6 Co. 54. — 9 Co. 69.
    
   Putnam, J.,

delivered the opinion of the Court. In the case ol Blatch vs. Archer, cited in the argument for the defendant, and which was very much like the case at bar, it was determined, that an arrest was good which was made by the servant of the bailiff, when the bailiff was not in sight, nor within thirty rods of the debtor. In that case, as in the present, the officer had the capias, and the servant acted by the verbal authority of the officer ; and the jury, in this case, as in that, have found, that both were intent upon one object, namely, the arresting and detaining of the debtor.

It has been contended, in the case at bar, that Rich, the assistant, did not sufficiently make known his authority to arrest. But he had no opportunity to do more than he did ; and' it was not his fault, that an explanation was not fully made after the arrest. The case, in which one arrested may demand of one, not known generally as an officer, to produce his warrant or authority, is, when the party arrested submits himself to the arrest; not where he immediately resists, and by his own wrongful act prevents the officer from doing his duty. Parties thus resisting do it at their peril; and all who come to their assistance under such circumstances must take the consequences of their unlawful interference.

* Upon consideration, we are all of opinion, that the direction to the jury was right; and the motion for a new trial ."s overruled. 
      
      
        Mackalley's case, 9 Co. 66. b.
      
     