Kent, Ch. J.
delivered the opinion of the court. The question of justification turned upon this fact, whether the plaintiff, contrary to his duty, aided or assisted the rioters in their resistance to the execution of the warrant, or in their escape. There were several, and some of them strong circumstances, from which the jury might have inferred that fact against, him; and if so, the defendant was justified in arresting him. The sheriff is, ex officio, a conservator of the peace; and it is not only his right, but his duty to arrest all persons, with their abettors, who oppose^ the execution of process. And, as Sir Mathew Hale has observed, (2 Hale's H. P. C. 85.) these ministers of public justice 66 should *88have the greatest protection and encouragement in the due exec»» t;on 0f their office.” But the case is not such as to require the verdict to be set aside, on the ground merely of being a verdict ' against evidence, provided the law was laid down to the jury correctly by the court. The judge told the jury that the plaintiff, was clearly entitled to recover. -1 apprehend that this expression was' much too strong for the case; but still it was but mere opinion, and left the jury to exercise their own judgments upon the facts. But when the jury were told that the defendant could not authorize the persons left in the house in his absence, tó arrest the rioters, and that it would have been unlawful to have opposed their escape, I think there was a misdirection in point of law, and one which very probably determined the verdict. The defendant had come to the place to execute the process, and meeting with a resistance \in the plaintiff’s house, which be had not strength to subdue, he went back to Goshen for assistance, and directed the plaintiff and others to aid and assist, in preventing, in the mean time, the escape of the rioters.. He must be deemed, in this case, to have been constructively present, so as to justify an arrest of the rioters, during his temporary absence, provided he was . absent on that business, and this was a matter of- fact for the jury. z The sheriff may take the power of the county, if necessary, after resistancé, to execute process. Every man is bound to be aiding and assisting, .upon order or summons, in preserving the peace and apprehending offenders, and is punishable, if he refuses. (2 Hale’s H. P. C. 86.) The sheriff is, quodam modo, present, by his.authority, if he be actually engaged in efforts to arrest, dum fervef opus, and has commanded and is continuing to command and procure assistance. When he is calling on the power of the county, or a requisite portion of it, to enable him to overcome resistance, it would be impossible that he should be actually present in every pláce where power might be wanting. The law is not so unreasonable ás to require the officer to be an eye or ear witness of what passes, and to render all his authority null and void, except when he is so present. - He could not, upon that construction, use the power of the county with effect, and it would be attended with great inconvenience and danger to the administration of justice.’. The question in these cases does not turn upon the fact of distance, so long as the sheriff is within his county, and is bona fide and strictly engaged,in the business of the arrest. In the execution of civil process, where there was no resistance, it was held, by *89Lord Mansfield, in Blatch v. Archer, (Comp. 63.) that the officer must be the authority to arrest, but he need not be the hand, n~r present, nor in sight; nor is any exact distance prescribed. It is a question of fact for a jury, whether the officer was on that business, and so, quodam modo, present. The necessity of the doc-fine of constructive presence applies with much more force, and ought to be received with much more liberality when the officer is serving criminal process, and meets with resistance. There are many instances in the books of persons convicted of felonies committed by them, as aiders and abettors, though far beyond the power of seeing or hearing the actual perpetration of the act. The. cases proceed upon the principle of mutual concert, aid and protec~ tion in the execution of one common design, and the doctrine equally applies to this case where the sheriff calls in aid to execute pro~ cess. He is present, in judgment of law, by his authority, and every person who aids him, in pursuance of his summons, acts under the same protection, and the same responsibility, as if the sheriff stood in his view. This we consider to be a sound and essential principle, and if it had been stated to the jury, we cannot say that they would not have acquitted the defendant, on the ground that the plaintiff had, contrary to his duty, aided or countenanced the escape of the rioters during the absence of the sheriff.
This case ought, therefore, to be reviewed by another jury, and a new trial is accordingly awarded, with costs to abide the event of . the suit.
Spencer, J.
I cannot concur in the rule for a new trial. The idea that the defendant was constructively present, after his departure from the place where the defendants in the warrant were, and whilst actually absent, at a distance of several miles; and that the persons whom he had stationed to watch those persons against whom he had process, were acting under his immediate orders, and had power to arrest those persons, appears to me quite extravagant. The offence on which the warrant was issued was a breach of the peace, and it cannot be pretended that for such an offence, then past, private individuals could arrest; nor will it be contended that the sheriff could authorize an arrest, by parol, he being absent at the time. Chief Justice Holt doubted whether an arrest made by a bailiff’s servant would be *90lawful, even in the presence of the bailiff; and it was agreed that it would not be good, if the bailiff was not, quodam modo, in his company. (6 Mod. 211. Bull. N. P. 63.) In Blatch v. Archer, (Cowp. 63.) it was held, that an arrest must be by the authority of the bailiff, but that he need not be the hand that arrests, nor actually in sight; but he must be so nigh as to be near at hand, and acting in the arrest; and in that case the bailiff was within thirty rods. I believe there is no case to be found, carrying the doctrine of constructive presence further than that of Blatch v. Arclier. If the officer is acting in the arrest, or if he is near at hand, then an arrest by his follower is his act. In the present case, I conceive that the defendant was not acting in the arrest, nor near at hand.
New trial granted.