¶1delivered the opinion of the court.
¶2The indictment for a rescue should state the nature and cause of the imprisonment of the person alleged to have been *201rescued; (1 Russ, on Crimes, 434;) and it should also state whether the person from whom the rescue was made was a public officer or a private person. (1 Hale P. C. 606.) For, whilst the custody of a person in the hands of a public officer would imply notice that the prisoner was lawfully held and the rescue would be at the peril of the party making it, the offence would not exist if the rescue was made from the custody of a private person, unless the defendant knew that the prisoner was under arrest for a felony or misdemeanor.
¶3This indictment neither states the cause of the imprisonment of Comfrey, nor whether Gunter was a public officer, nor, if a private person, that the defendants knew why he had Comfrey in custody.
¶4The indictment was properly quashed, and the other judges concurring, the judgment will be affirmed.