arrested) (z): but the latter acts more at his peril; and is not protected, unless he can prove an actual commission of the crime by some one, as well as a reasonable ground for suspecting the particular person (a). It is also to be observed, that a private person cannot, on mere suspicion, justify breaking open doors; which a constable may do, even without a warrant (b).

[Finally, there is yet another species of arrest without warrant, and that is upon a hue and cry raised upon a felony committed (c). A hue (from huer, to shout) and cry, hutesium et clamor, is the old common law process of pursuing, with horn and with voice, all felons, and such as have dangerously wounded another (d). If in a hue and cry, the constable or peace officer, concur in the pursuit, he has the same powers, protection and indemnification, as if acting under a warrant of a justice of the peace.] Indeed all those who join in following upon a hue and cry that has been raised, and that whether a constable be present or not, will be justified in their apprehension of the party pursued, even though it should ultimately turn out that he is innocent, or that no felony has been committed (e); and, where the party pursued has taken refuge in a house, may break open the door to secure him, if admittance be refused (f). But if a man wantonly or maliciously raises a hue and cry without cause, he is liable to fine and imprisonment (e); and is also liable to an action. at the suit of the party injured.

(z) Allen v. L. & S. W. R. Co., 40 L. J. Q. B. 55.

(a) Fost. 318. See Adams v. Moore, 2 Selw. N. P. 865; Moore v. Raye, 4 Taunt. 34; Beckwith v. Philby, 6 B. & C. 635; Williams v. Crosswell, 2 C. & K. 422.

(b) 4 Bl. Com. 292. See Smith v. Shirley, 3 C. B. 142. As to homicide in resisting an arrest by a private person, see 2 Hale, P. C.

84; Foster, 272, 309, 318.

(e) As to hue and cry, see 2 Hale, P. C. 100 et seq.

(d) The statutes relating to hue and cry, 13 Edw. 1, st. 2, cc. 1 and 4; 27 Eliz. c. 13, and 8 Geo. 2, c. 16; are repealed by 7 & 8 Geo. 4, c. 27.

(e) Hawk. P. C. b. 2, c. 12,

s. 16.

(f) 2 Hale, P. C. 102.

In order to encourage the apprehension of offenders in certain cases, it was provided by 7 Geo. IV. c. 64, s. 28,— in the place of previous enactments of a similar kind,—that when a person shall appear to a court of oyer and terminer, or gaol delivery, to have been active in or towards the apprehension of one charged with murder, or a felonious and malicious shooting; or with an attempt to discharge loaded fire-arms at another person; or with stabbing, cutting or poisoning; or with administering anything to procure the miscarriage of a woman; or with rape, burglary or felonious housebreaking; or with robbery from the person; or with arson; or with horse, bullock, or sheep stealing; or with being accessory, before the fact, to any of the offences above enumerated; or with receiving any stolen. property knowing the same to have been stolen,-the court is authorized to order the sheriff of the county to pay to such person such a sum of money as shall seem a reasonable and sufficient compensation for his, her, or their expenses, exertions and loss of time (g). But this power is to be exercised subject to such regulations, as to the rate of allowance, as shall be made from time to time by the secretary of state. And by 14 & 15 Vict. c. 55, s. 8, the above power of ordering compensation is extended, under certain limitations as to the amount, to any court of sessions of the peace,-in reference to such of the abovementioned offences as they have jurisdiction to try (h).

(g) And see 7 Geo. 4, c. 64, s. 30, as to compensation to the families of those who are killed in attempting to apprehend persons charged with such offences as are mentioned in the text; and 14 & 15 Vict. c. 55, s. 7, providing that nothing in that Act, with regard to the regulations under which the power of allowance is to be exercised, shall interfere with the power of any court to order payment to

any person who shall have shown extraordinary courage, diligence, or exertion in the apprehension. See also 19 & 20 Vict. c. 16, s. 13, as to compensation in cases removed for trial to the Central Criminal Court, under the provisions of that Act.

(h) The amount is limited to 51. to any one person. As to the jurisdiction of the sessions, vide sup. pp. 314 et seq.

CHAPTER XIII.

OF COMMITMENT AND BAIL.

WHEN a delinquent has been arrested by any of the means mentioned in the preceding chapter, he should be carried as soon as possible before a magistrate (a); and how he is then to be treated, is now to be shown under the head of commitment and bail.

The justices before whom a person charged with any indictable offence is brought up on warrant, or who attends before the court voluntarily or in obedience to a summons,—are bound immediately to examine into the circumstances of the crime alleged (b); and to this end, the following provisions have been made by the statute 11 & 12 Vict. c. 42, and by the 30 & 31 Vict. c. 35 (c): viz. that the magistrate shall take, in the presence of the accused-who shall be at liberty to put questions to any witness produced against him by way of crossexamination (d),-the statement on oath or affirmation. of those who know the facts of the case, and shall put the same into writing (e) :--that the room in which such

(a) See Wright v. Court, 6 D. & R. 623.

(b) It may be remarked here that the regulations of the statutes as to how an accused person is to be examined apply, whether he appears voluntarily (on summons or otherwise) or has been brought up on

warrant.

(c) This Act is often called "Russell Gurney's Act."

(d) As to the latitude allowed to the person charged by way of crossexamination before the magis

VOL. IV.

trates before whom he is brought, and particularly in cases of libel, see R. v. Townsend, 10 Cox, Cr. Ca. p. 356; R. v. Carden, Law Rep., 5 Q. B. D. 1.

(e) 11 & 12 Vict. c. 42, s. 17. Such a deposition may be afterwards used at the trial of the accused in the event of the deponent being then dead, or so ill as not to be able to travel or give evidence. (See The Queen . Farrell, Law Rep., 2 C. C. R. 116; The Queen r. Wellings, ib. 3 Q. B. D. 426.) A A

examinations (or depositions as they are called) are taken shall not be deemed an open court; and that it shall be lawful for the justice or justices, if it appear to them most conducive to the ends of justice, to order that no person shall have access to the same (ƒ):-and that after the examinations of all the witnesses on the part of the prosecution have been taken, and by them respectively signed, as well as by the examining magistrate, they shall be read over to the accused, who shall be asked if he wishes to say anything in answer to the charge, but at the same time cautioned that he has nothing to hope from any promise, or to fear from any threat, that may have been held out to him; and that (notwithstanding any such promise or threat), anything he may then say, may be read in evidence against him upon his trial. The statutes proceed to direct that whatever the accused person shall, after the above caution, say in answer to the charge shall be taken down in writing, and read over to him, and signed by the magistrate (g). The accused is then forthwith to be asked whether he desires to call witnesses (), and in that case such justice or justices shall, in his presence, take the statement on oath or affirmation, both by way of examination and cross-examination, of those who shall be so called by him, and who shall know anything relating to the facts and circumstances of the case, or anything tending to prove his innocence, and shall put the same into writing (i). And the same course may be adopted with regard to a statement on oath or affirmation made before and signed by a justice under the provisions of 30 & 31 Vict. c. 35, s. 6, by any person dangerously ill and not likely to recover.

(f) 11 & 12 Vict. c. 42, s. 19. (y) Sect. 18. As to this provision, see Reg. v. Stripp, 1 Dearsley's C. C. R. 648.

(h) In certain cases of newspaper libel it is the duty of the committing magistrate to hear evidence

in justification or excuse of the alleged offence. (See 44 & 45 Vict. c. 60, s. 4.)

(i) 30 & 31 Vict. c. 35, s. 3. (See R. v. Townsend, 10 Cox, Cr. Ca. p. 356.) As to the expenses of such witnesses, see sect. 5. It is not the practice to examine the prisoner himself, otherwise than by thus calling on him for his defence; and this corresponds with the canon law, whereby, says Blackstone, (vol. iv. p. 296,) пето tenetur prodere seipsum."

It is further provided:—that if, when all the evidence against the accused person shall have been heard, the justice or justices shall be of opinion that it is not sufficient to put him upon his trial, they shall forthwith order him to be discharged; but that if they shall be of the opposite opinion, or if the evidence given raise a strong or probable presumption of his guilt, they shall either commit him to prison to take his trial (as hereafter mentioned), or admit him to bail,—that is, allow him to be discharged, on entering into a recognizance (with some sufficient surety or sureties), to appear and surrender himself to custody, and take his trial on such indictment as may be found against him, in respect of the charge in question, at the next assizes or sessions of the peace. If the charge cannot be properly investigated at a single hearing, it is the practice of the magistrates to remand the person accused from time to time, to be kept in safe custody and under proper restraint until he can either be discharged or committed. It is, however, in the discretion of the court to allow the person accused to remain at large during the period of the investigation.

The justices, however, have no power to admit any person to bail for treason; nor shall bail, in that case, be allowed except by order of a secretary of state, or of the Queen's Bench Division of the High Court, or by a judge thereof in vacation: while, on the other hand, they are bound to admit to bail in all cases of misdemeanor, except such as the Act of 11 & 12 Vict. c. 42, particularly enumerates; and as to all felonies (treason excepted), as well as to the misdemeanors so enumerated, they have a discretionary power either to admit to bail (j), or to commit to prison (k).

(j) Formerly there were many other cases besides treason in which justices of the peace had no power to bail; for example, that of murder and of arson. (See 4 Bl. Com. 299.)

(k) The misdemeanors enumerated in 11 & 12 Vict. c. 42, for which justices are not obliged to take bail, but have a discretion in the matter, are as follows-assault with intent to commit felony; ob