(whether a peace officer or not) may, without warrant, in the case of any felony committed in his presence, justify breaking open doors in pursuit of the offender: and may also arrest any one for felony on probable suspicion (z). But there is this distinction between the case of the peace officer, and that of a private person; that the former is protected though it should turn out that no such crime as supposed had been in fact committed by any one (provided he can show that he had reasonable ground for suspecting the party arrested): 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

(z) 2 Hale, P. C. 78.

(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.

(c) 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 c. 13, and 8 Geo. 2, c. 16; are repealed by 7 & 8 Geo. 4, c. 27.

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.

In order to encourage the apprehension of offenders in certain cases, it is provided by 7 Geo. IV. c. 64, s. 28, -repealing 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 with a felonious and malicious shooting; or 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 robbery from the person; or arson; or horse, bullock, or sheep stealing; or with being accessory, before the fact, to any of the offences aforesaid; 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).

(e) Hawk. P. C. b. 2, c. 12, s. 16. (ƒ) 2 Hale, P. C. 102.

(9) 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, as to the regulations under which the power of allowance

But this power is to be

is to be exercised, shall interfere with the power of the 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.

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). diction of the sessions, vide sup. p. 317.

(h) The amount is limited to 51. to any one person. As to the juris

VOL. IV.

A A

CHAPTER XVII.

OF COMMITMENT AND BAIL.

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

The justice or justices before whom such prisoner is brought are bound immediately to examine 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 30 & 31 Vict. c. 35; viz. that the magistrates shall take, in the presence of the accused (who shall be at liberty to put questions to any witness produced against him), the statement on oath or affirmation of those who know the facts of the case, and shall put the same into writing (c):-that the room in which such 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

(a) Vide sup. p. 344. He ought to be brought before the justice without delay. (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) 11 & 12 Vict. c. 42, s. 17. Such a deposition, or any 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, may be afterwards used at the trial of the accused in the event of the deponent being then dead, or unable to travel or give evidence.

access to the same (d):-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 (e). 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 (ƒ). 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

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

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,) “nemo tenetur prodere seipsum."

(f) 30 & 31 Vict. c. 35, s. 3. As to the expenses of such witnesses, see sect. 5. It is not the