\^ THE CONSTABLES' MAl^UAL: BEING A SUMMARY OV THE LAW RELATING TO THE RIGHTS, POWERS, AKD DUTIES OF CONSTABLES BY S. E: CLARKE, OF OSOOODB HALL, BARBISTER-AT-LAW; AUTHOR OP "THB CRIMINAL LAW OF CANADA, "THE MA0ISTBATK8* MANUAL," "THB INSOLVENT ACT OP 1875, AND AMENDING ACTS." TORONTO: HART k BAWLINSON, 5 KING STREET WEST. 1878. C LAI I? HE ^ 1 ^ Entered according to Act of the Parliament of Canada, in the year of our Lord one thousand eight hundred and seventy-eight, by Samitel Robinson Clarke, in the Office of the If inister of Agricnlture. PRINTED BY COPP. CLARK & CO. TOEONTO. PREFACE. In preparing my "Magistrates' Manual," I did not treat specially of the duties of Constables, though the duties of Constables and of Magistrates are intimately blended. In fact, most English works on magisterial law contain a chapter on the duties of Constables. It was, however, thought advisable to publish "The Constables' Manual" as a separate work. Without incumbering "Tha Magistrates' Manual" with a considerable amount of matter which did not strictly pertain thereto, it was found impossible to furnish a complete guide to Con- stables. The plan now adopted secux-es to Constables a summary of their rights, powers and duties, at a moderate cost ; and it is believed that it does not render the book less useful to Magistrates. The Appendix contains some general instructions to Constables which may be perused with advantage. The Tariffs of Fees in the Provinces of Ontario, Quebec, Nova Scotia, New Brunswick and Manitoba, are also given. I beg to acknowledge the great assistance I have received from a 'perusal of "The Constables' Guide," by Adam Wilson, Q.C., now the Honourable Mr. Justice Wilson, of the Court of Queen's Bench for Ontario. The learning and research of this eminent judge are so well known that I have not hesitated to cite his work as an authority on all points of doubt or difficulty. S. xv. C. Toronto, 2nd April, 1878. TABLE OF CONTENTS. Paof. Appointment of Constables 1 General Powers of a Constable 16 Duties of Constables 23 As to the Cases in which the Right to Arrest is given by Statute 25 Ab to Arrest without Warrant in Cases of Misdemeanor 31 As to the Right to Arrest for Swearing 39 As to Arrest without Warrant in Cases of Felony 40 As to Arresting on Telegrams 44 As to what is an Arrest 47 As to the Execution of Warrants 49 When a Warrant may be Executed 60 As to Breaking Open Outer Doors and Windows 67 As to Handcuffing 70 As to Bringing the Prisoner before a Magistrate 70 As to Executing Search Warrants 73 As to Discharge by Constable Executing Warrant of Distress 75 As to Money found on Prisoners 75 As to the Duties of Constables in Obtaining Confessions 77 As to the Right to Recover Rewards 79 As to Escapes 79 Refusing to aid Constables 80 Homicide by a Constable in the Execution of his Duty 82 As to the Liability to Actions and the Protection of Constables 86 As to the Limitation of Actions against Constables 92 Appendix 97 General Instructions to Constables 97 Fees of Constables in the Provinces of Ontario, Quebec, Nova Scotia, New Brunswick and Manitoba 101 List of the Principal Felonies and Misdemeanors 113 Addenda 116 TABLE OF CASES CITED. Paok. Adiard, R. v 15 Alcock V. Andrews 93 Andrews v. Morris 86 Amott V. Bradly 75, 80 Atkins V. KUby 89, 90 Barber v. RoUinson 44 Barrons v. LuBcombe 91 Baynes v. Brewster 35 Beckwith v. Philby 42 Bell V. Oakley 88, 90 Bettersworth v. Hough 90 Blakeley, R. v '. G9 Booth, R. V 16 Booth V. Hanley 37 Boottie, R. V 17 Bowditch V. Baldwin 34 Bowditch V. Fosberry 72 Brain, R. v 16 Bright, R. V 37 Brown, R. v 80, 82 Bullock V. Dunlop 77 Burdett V. Abbott 67 Burgiss R. V 76 Butt V. Newman 91 Carignan, ex p 71 Chasson, R. v 81 Clark V. Woods 90 Clarke, R. v 15 Codd V. Cabe 33 Collins V. Rose 91, 93 Cook V. Nethercote 34 Cotton V. Kadwel' 88 Coupey V. Henley 17, 37 Cowles V. Dunbar 41 Crozier v. Cundy 74, 88, 89 Curraii, R. v 29, 84 . Dadson, R. v. . . .'. . . 83 Davis V. Russell 41, 71 Davis, R. V 81, 84 Derecourt v. Corbisliley 36 Dixon, R. V. 18 Downing v. Capel 29 Paok England v. Davidson 79 En tick V. Carrington 74 Evans, R. v 63 Ferdinand do Mierre, R, v. . . 16 Fido V. Wood 35 Field V. Croft 93 Foley V. Tucker 95 Ford, R. V 44 Fox V. Gaunt 31, 34 Freegard v. Barnes 93 Galliard v. Laxton 33 Gardner, R. v 29 Gay v. Mathews 92 Ginibert v. Coyney 62, 63 Gladwell v. Blake 91 Gosden v. Elphick 44, 93 Gossett V. Howard 86 Goudie v. Langlois 86 Graliam v. Smart , . 86 Grant v. Mosier 35 Graves v. Arnold 93 Griffin v. Coleman 31, 34 Griffith v. Taylor 30, 94, 95 Grinliam v. Willey 43 Haidie, The 86 Hailes v. Marks 43 Hanway v. Boultbeo 29 Hai-dy v. ]VIurj)hy 37, 71 Hardy v. Kyle 92 Harvey v. Marshall 95 Hennessy, R. v 56 Higham, R. v 63 Hobbs V. Brandscomb 42 Hogg V. Ward 42 Hood, R. V 52 Hough V. Marchant 44 Housin V. Barrow 52 Howarth, R. v 23, 29, 84 Howell V. Jackson 36 Hoye V. Bush 61, 89 Hunt, R. V 30, 84 Hutcheson v. Birch 67 • • • via TABLB OF OASES OITED. Page. Imoson V. Cope 24 IsaacH V. Brand 41 Johnson v. Leigh G7 Jonoa, R. v 75, 76 JonoH V. Rosa 51 Jonoa V. Viiughan 88, 89, 91 Kalar v. Cornwall 92 Kinaoy, R. v 75 Launock v. Brown 68 Lawrenco v. Hedgor 43 Leoto V. Hart 29 Levecque, R. v 22 Levy V. Edwards 37 Light, R. V 36 Lockloy, R. v 70 Loveridgo v. Plaatow 66 Mabel, R. v 33, 35 Maraden, R. v 36 Maasey v. Johnaon 92 Matthowa v. Biddulph 31 Mayhew v. Parker 67 Medhnrat v. Wate 15 Mick, R. V 78 Milne, R. v 71 Milton, R. V 74 Money v. Leach 88 Morris v. Wiao 71 Morae v. Teetzel 49 Moaley, R. v 15 Mulligan v. Rainaford 109 Mm-pliy V. Ellis 42, 94 McClonghan v. Clayton 41 McDonald, R. v 81 McDougall V. Peteraon 93 McGregor v. Patterson 87 McGregor v. Scarlett 39 Mcintosh V. Demeray 49 McMicliael v. Gray 95 Neville v. Kelly 79 Nicholson v. Hardwick 42 O'Donnell, R. v 75 O'Leary, R. v 81 Osbom V. Veitch 24, 42, 70 Ovens V. Taylor 86 Parton v. Williams 90, 93 Patience, R. v 62 Peacock v. Bell 87 Paob. Peppy y. Grono 94 Perrin v. Joyce 49 Phelps, R. v 29 Posllethwaito v. Gibson, 88, 91, 93 Powell V. Williamson 37 Prebble, R. v 69 Price, R. v 84 Price v. Messenger 90 Price v. Seeley 35 Priest, R. V 78 Radcliffe v. Burton 67 Rawlins v. Ellis 47 Ricketa, R. v 23 Rogers v. Van Valkenburgh . . 40 43,46 Roaier, R, v 18 Roas v. Lascelles 44 Rutland's Caae 66 Sage \\ Duffy 93 Samuel v. Payne 41, 84 Sandors, R. v 61 Scott, R. v 40 Semayne's Case 68 Sherlock, R. V 82 Simmons v. Millingen 29 Simpson v. Hill 43 Sly v. Stevenson 89 Smith V. Burpee 70 Smith V. Wiltslure 93 Stocken v. Carter 24 Stonehouse v. EUiott 32, 44 Stubbs, R. V 16 Sturch V. Clarke 88 Taylor, R. v 18 Theobald v. Crichmore 93 Timothy v. Simpson 34 Underhill v. Wilts 16 Vincent, R. v. 16 Walker, R. v 29, 36, 78, 86 Warwick, R. v 83 Wataon v. Fournier 92 Weir, R. v 51, 84 White V. Edmonds 43 WilHams, Re 63 Williams v. Glenister 72 Williams, R. v 86 Wood, R. V 16 Wright V. Court 24, 70 71 CONSTABLES' MANUAL APPOINTMENT OF CONSTABLES. The Statute of Canada 31 Vic. chap. 73 enacts as followa: 1. Tlic Governor in Council may from time to time appoint^ by Commission under the Great Seal, one or more fit and proper persons to be and act as a Commissioner or Commissioners of Police within any one or more of the Provinces of Canada, or within any one or more of the Districts or Counties in any Pro- vince, or within any Temporary Judicial District, or any Provi- sional Judicial District in Ontario. 2. The Governor in Council may from time to time direct and authorize any Commissioner of Police under this Act to appoint any fit and proper persons to serve as Police Constables under and within the jurisdiction of such Commissioner of Police, and such Commissioner may at his pleasure remove any such Police Constable, and every such Police Constable shall obey all lawful directions, and be subject to the government of such Cotnmis- sioner of Police, and shall be charged with all the powers, rights and responsibilities which belong by law to Constables duly ap- pointed in the Province or District or County of the Province in which they may be appointed, but for the purpose of carrying out the Criminal Laws and other Laws of the Dominion only. 3. If any Police Constable appointed under the authority of this Act be guilty of any disobedience of orders, neglect of duty, or any misconduct as such Police Constable, and be convicted thereof before any Commissioner of Police, Police Magistrate, or Justice of the Peace, he shall forfeit a sum to be fixed by such Commissioner, Police Magistrate or Justice, not exceeding forty dollars and costs, and in default of immediate payment thereof, shall sufier imprisonment for any time not exceeding three moQthB, unless such fine and costs be sooner paid ; and any such 2 „.-v 9 constables' manual. person may be proceeded kgainet by indictment for any offence committed by nim as sucb Conbtable, but not both by indictment and under this Act for the samo oftence. 4. Every Commissioner of Police' appointed under this Act for the purpose of carrying out tlie Criminal Laws and other Laws of tlie Dominion only, shall have and exercise within the Province or Provinces, District or Districts, or County or Counties, or Temporary Judicial District or Provisional Judicial District of a Province for which he is appointed, all the powers and authority, rights and privileges by law appertaining to Police Magistrates of Cities in the same Province, and all the powers and authority, rights and privileges appertaining to Justices of the Peace gen- erally'', and shall be subject in all respects (except as otherwise provided by this Act) to the requirements of the law of the Pro- vince in and for which, or any District or County in which he may be appointed, respecting Police Magistrates and the office of Justice of the Peace ; but it shall not be necessary for any Com- missioner of Police appointed under this Act to possess any pro- perty qualification, or to be actually resident within any District, County, Temporary Judicial District or Provisional Judicial Dis- trict of a Province for which he may be appointed. 5. Every such Commissioner of Police shall keep minutes of every proceeding had by and before him, and shall keep such accounts, make such returns, and collect such information within his jurisdiction, and perform such other duties as the Governor may from time to time prescribe and require. 6. Every Commissioner of Police and every Police Constable appointed under this Act shall be subject to such regulations in respect to the order, management, and disposition of the Police, and shall receive such rates of pay or allowance as may from time to time bo prescribed by the Governor in Council ; and an account shall be laid before Parliament, within the first two weeks after the meeting of each Session, of the average number of men employed during each month of the year, and of the cost of pay and of travelling expenses expended in respect thereof. 7. All moneys arising from penalties, forfeitures and fines im- posed by any Commissioner of Police, shall, if not directed by APPOINTMENT OP CONSTABLES. 8 law to be otherwise appropriated, be from time to time paid to Biich Commissioner of Police, who shall account for the same, and pay over or disburse the moneys arising therefrom at such times and in such manner, and to such person or persons, as the Governor may from time to time direct. In the Province of Ontario the JRevised Statutes, chap. 81, enact as follows : 1. Any Commissioner of Police duly appointed under the Great Seal of Canada to be and act as such within the Province of Ontario, under and by virtue of the Act of the Parliament of Canada passed in the thirty-first year of Her Majesty's reign, chaptered seventy-three (31 Vic. chap. 73), and entitled, " An Act respecting Police of Canada," and authorized in that behalf by commission from the Lieutenant-Governor, under the Great Seal of this Province, shall have and exercise within the several Counties, Temporary Judicial, Provisional Judicial or Territorial Districts, or Provisional Counties within this Province, all the powers and authority, rights and privileges, by law appertaining to Police Magistrates of cities, and all the powers and authority, rights and privileges appertaining to Justices of the Peace gene- rally ; and shall be subject in all respects^ except as otherwise pro- vided by this Act, to the requirements of the law of this Province respecting Police Magistrates and the office of Justice of the Peace; but it shall not be necessary for any Commissioner of Police as aforesaid to possess any property qualification or to be actually resident within any County or otlier Territorial Division for which the administration of criminal justice is provided, nor shall it be necessary for any such Commissioner of Police to take or subscribe any oath of allegiance or of office within any such Countv or District. 2. The Police Constables appointed or employed by such Com- missioner of Police shall be charged with all the powers, rights and responsibilities which belong by law to Constables duly appointed in this Province ; and they shall be subject to such Commissioner of Police, and liable to all the responsibilities, for- constables' manual. feitnres and penalties provided by or expressed in the said " Act respecting Police of Canada," 31 Vic. chap. 73. 3. The said Commissioner or Commissioners of Police and the said Police Constables, notwithstanding anything lierein to the contrary, shall have no power or authority as regards offences against Municipal By-laws, or as such with any other purely Mu- nicipal matters; and this Province shall not be liable to any charge for the maintenance of such Commissioner of Police or Police Constables. 4. In case the Lieutenant-Governor revokes any commission issued by him under this Act, the authority of any such Commis- sioner and of any Constable appointed by him, as far as the same are given under or by virtue of this Act, Bbal] forthwith cease. In Ontario, under the Revised Statutes chap. 82, s. 1, the Justices of the Peace may from time to time, at any sitting or adjourned sitting of the Court of General Sessions of the Peace, appoint a County High Constable, and a sufficient number of fit and proper persons to act as Constables in each Township, Incor- porated Yillage, Police Yillage, and place within their County, and may in like manner, from time to time, in their discretion dismiss any Constable so appointed. 2. The persons so appointed shall, before entering on the duties of their office, take and subscribe the following oath, which any Justice of the Peace may administer : I, , having been appointed High Constable (or Constable) for the County (or United Counties) of , do solemnly swear that I will truly, faithfully and impartially perform the duties appertaining to the said ofifice according to the best of my skill and ability. So help me God. 3. Every Constable so appointed, and having taken the afore- said oath, shall continue in office at least one year, and shall further continue in office from year to year without reappoint- ment, unless he claims exemption from serving as such Constable, in which case he shall be released at any time after the end of the first year. APPOINTMENT OF CONSTABLES. APPOINTMENT BY COUNTY JUDGE. 4. To prevent injurious delay in appointing County Constables, arising from the long intervp's between the sittings of the Courts of General Sessions of the Peace, any Judge of a County Court may at any time, and from time to time, appoint any person or persons to be a Constable or Constables for the County or United Counties of the County Court of which such Judge is a Judge. 5. The Judge making any such appointment shall forthwith notify the Clerk of the Peace thereof. 6. The Clerk of the Peace sliall report every such appointment to the next Court of General Sesslc^ns of the Peace which is holden after he receives notice thereof from the said Judge ; and unless at such Court such appointment is revoked by order duly passed in Sessions, the same shall continue as if the same had originally been made at such Court. 8. Any Constable so appointed by a Judge as aforesaid siiall, during the continuance of such appointment, have the same authority and privileges, and be subject to the same liability and the performance of the same duties, as if originally appointed by the Court of General Sessions of the Peace. PROVINCIAL CONSTABLES. 9. The Lieutenant-Governor may appoint, either permanently or for such a period as he may think fit, persons to be Provincial Constables; and every person so appointed shall, while he holds office, be a Constable of every County and District in Ontario, and as such shall have authority to act in any part of this Province. 10. The Lieutenant-Governor may from time to time appoint Constables for any Provisional, Judicial, Temporary Judicial, or Territorial District, or Provisional County, or for any portion of the territory of Ontario not attached to a County for ordinary municipal and judicial purposes. In Ontario, under an Act respecting Municipal Institutions, Rev. Stat. (Out.) chap. 174, s. 413, in every City there is consti- 6 constables' manual. tuted " Board of Commissioners of Police, and in every Town having a Police Magistrate the Council may constitute a like Board ; and such Board shall consist of the Mayor, the Judge of the County Court of the County in which the City or Town is situate, and the Police Magistrate ; and in case tlie office of County Judge or that of Police Magistrate is vacant, the Council of the City shall and the Council of the Town may appoint a person resident therein to be a member of the Board, or two persons so resident to be members thereof, as the case may require, during such vacancy : but the Council of any such Town may at any time, by by-law, dissolve and put an end to the Board, and there- after the Council shall have and exercise all powers and duties previously had or exercised by the Board. 418. The Council of every City shall appoint a High Bailiff, but may provide by by-law that the offices of High Bailiff and Chief Constable shall be held by the same person. •419. The Police Force in Cities and Towns having a Board of Commissioners of Police, shall consist of a Cliief Constable and as many constables and other officers and assistants as the Council from time to time deem necessary, but in Cities, not less in num- ber than the Board reports to be absolutely required. 420. The members of such Police Force shall be appointed by and hold their offices at the pleasure of the Board, and shall take and subscribe to the following oath : I, A. B. , do swear that I will well and truly serve our Sovereign Lady the Queen in the office of Police Constable for the of without favour or affection, malice or ill-will ; and that I will, to the best of my power, cause the peace to be kept and preserved, and will prevent all offences against the persons and properties of Her Majesty's subjects ; and that while I continue to hold the said office, I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law. 421. The Board shall, from time to time, make such regula- tions as they may deem expedient for the government of the Force, and for preventing neglect or abuse, and for rendering the Force efficient in the discharge of all its duties. APPOINTMENT OF CONSTABLES. 7, 422. The Constables shall obey all lawful directions, and be flubject tc the ojovernment of the Board, and shall be charged with the special duties of preserving the peace, preventing rob- beries and other felonies and misdemeanors, and apprehending offenders ; and shall have generally all the powers and privileges, and be liable to all the duties and responsibilities which belong by law to Constables duly appointed. 423. The Council shall appropriate and pay such remuneration for and to the respective members of the Force as may be required by the Board of Commissioners of Police; and shall provide and pay for all such offices, watch-houses, watch-boxes, arms, accoutre- ments, clothing, and other necessaries as the Board may from time t''' time deem requisite and require for the payment, accom- modation and use of the Force. 424. The Council of every Town not having a Board of Com- missioners of Police shall, and the Council of every Incorporated Village may, appoint one Chief Constable, and one or more Con- stables for the Municipality ; and the persons so appointed shall hold office during the pleasure of the Council. 425. Wherever in any Town there was on the twenty-fourth day of March, 1874, a Board of Commissioners of Police consti- tuted under the Acts then in force respecting Municipal Institu- tions in this Province, the Council of said Town may by by-law dissolve and put an end to said Board, and thereafter tlie Council shall have and exercise all powers and duties which might, under said Acts, have been had or exercised by said Board : and unless and until so dissolved atid put an end to, the said Board shall have and exercise all the powers and duties which, but for this section, would have been exercised or had by said Board. 427. Until the organization of a Board of Police, every Mayor or Police Magistrate may, within his jurisdiction, suspend from office, for any period in his discretion, the Chief Constable, or any Constable of the Town or City, and may, if he chooses, appoint some other person to the office during such period ; and in case he considers tlie suspended officer deserving of dismissal, he shall, immediately after suspending him, report the case to the Council, 8 constables' manual. and the Council may dismiss such officer, or may direct him to be restored to his office after the period of his suspension has expired ; and tlic City Council shall have the like powers as to the High Bailiff of the City. 428. Durino^ the suspension of such officer he shall not be capable of acting in his office except by the written permission of the Mayor or Police Magistrate who suspended him, nor dur- ing such suspension shall he be entitled to any salary or re- muneration, In Ontario, under the Revised Statutes, chap. 82, s, 8, the Judge of the County Court may suspend from office any County Constable for any period in the discretion of the Judge, but not beyond one week after the time appointed for the next sittings of the General Sessions of tiie Peace. Such suspension shall be by notice in writing ; and in case the Judge considers the suspended officer deserving of dismissal, such Judge shall, immediately after suspending him, report the case fully to the Clerk of the Peace for submission to tlie Justices at the next General Sessions of the Peace, and the Justices may dismiss such officer or direct him to be restored to his office after the period of his suspension has ex- pired, or after such further period of suspension as they may order. The Revised Statute of Ontario, chap. 83, entitled " An Act respecting Special Constables," provides as follows : 1. In case it is made to appear to any two or more Justices of the Peace of any Territorial Division in this Province, upon the oath of any credible witness, that any tumult, riot or felony has taken place, or is continuing or may be reasonably apprehended in any Territorial Division or plnce situate within the limits for which the said respective Justices usually act ; and in case such Justices are of opinion that the ordinary officers appointed for preserving the peace are not sufficient for the preservation of the peace and for the protection of the inhabitants and the security of the property in any such Territorial Division or place as aforesaid, then and in every such use such Justices, or any two APPOINTMENT OF CONSTABLES. 9 or more Justices acting for the same limits, may nominate and appoint,, by precept in writing nntlor their hands, so many as they think fit of the lionseholders or other persons not legally exempt from serving in the office of Constable residing in such Territorial Division or place as aforesaid or in the neighbourhood thereof, to act as Special Constables for such time and in such manner as to the said Justices respectively seems necessary for the preserva- tion of the public peace, and for the protection of the inhabitants and the security of property in such Territorial Division or place. 2. The Justices of the Peace who appoint Special Constables by virtue of this Act, or any one of them, or any other Justice of the Peace acting for the same limit, may administer to any per- son so appointed the following oath, that is to say: I, A. B. , do swear that I will well and truly serve our Sovereign Tiady the Queen in the office of Special Constable for the of without favour or affection, malice or ill will ; and that I will, to the best of my power, cause the peace to be kept and preserved, and will prevent all oifences against the persons and properties of Her Majesty's subjects ; and that Avhile I continue to hold the said office, I will, to the best of my skill and liuowledge, discharge all the duties thereof faithfully according to law. So help me God, 3. In case it is deemed necessary to nominate and appoint Special Constables as aforesaid, notice of the nomination and appointment, and of the circumstances which rendered it expe- dient, shall be forthwith transmitted by the Justice making such nomination and appointment to the Secretary of the Province. 4. The Justices of the Peace who appoint any Special Con- stables under this Act, or any two of them, or the Justices acting for the limit within which such Special Constables have been called out, may, at a Special Session of such last mentioned Justices, or the major part of such last mentioned Justices at such Special Session, make such orders and regulations as may from time to time be necessary and expedient for rendering such Special Con- stables more efficient for the preservation of the public peace, and may remove any such Special Constable from his office for any misconduct or neglect of duty therein. 10 constables' manual. 6. Every Special Constable appointed under this Act shall not only within the Territorial Division o'* place for which he has been appointed, but also tliroughout the entire jurisdiction of the Justices who appointed him, liave, exercise and enjoy all such powers, autiiorities, advantages and immunities, and be liable to all such duties and responsibilities, as any Constable duly appointed has by virtue of any law or statute whatever. 6. Where any Special Constables appointed under this Act are serving witiiin any Territorial Division or place, and two or more Justices of tlie Peace of any adjoining Territorial Division or place make it appear to the satisfaction of any two or more Justices of the Peace acting for the limits within which such Special Con- stables are serving, that extraordinary circumstances exist which render it expedient that the said Special Constables should act in such adjoining Territorial Division or place, then in every such case the said last mentioned Justices may, if they think fit, order all or any of the said Special Constables to act in such adjoining Territorial Division or place in such manner as to the said last mentioned Justices seems meet. 7. Every such Special Constable, during the time he so acts in such adjoining Territorial Division or place, shall have, exercise and enjoy all such powers, authorities, advantages and immunities, and be liable to the same duties and responsibilities, as if he were acting within the Territorial Division or place for which he was originally appointed. 8. The Justices of the Peace acting for the limits within which such Special Constables have been called out to serve, may, at a Special Session to be held for that purpose, or the major part of the Justices at such Special Session may from time to time order Bucli reasonable allowances for their trouble, loss of time and expenses not exceeding one dollar jper diem, to be paid to such Special Constables who have so served or are then serving, as to such Justices or to such major part of them seems proper. 9. The Justices so ordering shall make every order for the pay- ment of such allowances and expenses upon the Treasurer of the Territorial Division or other Municipal Division within which such Special Constables have been called out to serve ; and such Treas- APPOINTMENT OF CONSTABLES. 11 urer sluill pay the same out of any moneys in his hands at the time, and tlio said Treasurer shall he allrwed the same in his accounts, and the sum sliall be provided for by the Councnl of the Territorial Division or other Municipal Division wherein the expense arises. 10. The Justices of the Peace assembled at any Special Session for any of the purposes mentioned in this Act, may adjourn the same from time to time as they think proper, and every Special Session actually holden for any of the purposes mentioned in this Act shall be deemed and taken to have been legally holden until the contrary is proved. 11. The Justices who have appointed any Special Constables under this Act, or the Justices acting for the limits within which such Special Constables have been called out at a Special Session to be held for that purpose, or the major part of such last men- tioned Justices at such Special Session, may suspend or determine the service of all or any of the Special Constables so called out as to the said Justices respectively seems meet ; and notice of such suspension or determination of the services of ..il or any of the said Special Constables shall be forthwith transmitted by such respective Justices to the Secretary of the Province. 12. Every such Special Constable shall, within one week after the expiration of his office, or after he has ceased to hold or exer- cise the same pursuant to this Act, deliver over to his successor, if any such has been appointed, or otherwise to such person and at such time and place as may be directed by any Justice of the Peace acting for the limits within which such Special Constable has been called out, every staff, weapon and other article which has been provided for such Special Constable under this Act; and if any such Special Constable omits or refuses so to do, he shall, on conviction thereof before two Justices of the Peace, forfeit and pay for such offence such sum of money, not exceeding eight dollars, as to the convicting Justices seems meet. 13.. If any person being appointed a Special Constable as afore- said refuses to take the oath hereinbefore mentioned when there- unto required by the Justices of the Peace who so appointed him^ or by any two of them, or by any other two Justices of the 12 constables' mantjal. Peace acting for tlio same Hm'ts, ho may bo convicted thereof fortliwith beforo the said Justices so requiring him, and siiall for- feit and pay such sum of money, not exceeding twenty dollars, as to the convicting Justices seems meet. 14. If any person, being appointed a Special Constable as afore- said, neglects or refuses to appear for the purpose of taking the said oath at the time and place for which he has been summoned, ho may be convicted thereof before the Justices who appointed liim, or any two of them, or before any other two Justices of the Peace acting for the same limits, and shall forfeit and ])ay such sum of money, not exceeding twenty dollars, as to the convicting Justices seems meet, unless such person proves to the satisfaction of the said Justices that he was prevented by sickness or soine unavoidable accident, which in the judgment of the said Justices is a sufficient excuse. ; 15. If any person, having been appointed a Special Constable as aforesaid, and being called upon to serve, neglects or refuses to serve as such Special Constable, or to obey such lawful orders or directions as may bo given to him for tho performance of the duties of his office, the person so ofiending shall, on conviction before any two Justices of the Peace, forfoii and pay for every such neglect or refusal such sum of money, not exceeding twenty dol- lars, as to the said Justices seems meet, unless such person proves to the satisfaction of the said Justices that he was prevented by sickness or some unavoidable accident, in the judgment of the said Justices constituting a sufficient excuse. Section 13 of the Con. Stat. Can. chap. 104, is as follows : If any person assaults or resists any Constable appointed by virtue of this Act, while in the execution of his office, or promotes or encourages any other person so to do, every such person shall for such offence, on conviction thereof before two Justices of the Peace, forfeit and pay any sum not exceeding forty dollars, or shall be liable to such other punishment, upon conviction on an indictment or information for such offence, as persons are by law liable for aso^ulting a Constable in the execution of the duties of his office. • 16. The Justices of the Peace before whom any person is sum- marily convicted of any offence against tliis Act, may cause the APPOINTMENT OF OONSTAHLES. 13 conviction to be drawn up in the following form of words, or to the like effect, that is to say : \ }Bo it romonibered, that on tlio day of ill tlio yoar of our Lord in tho of in tho County (or as the case may he) of , J. N. is convicted Ixjforo us, A. B. and C. D. , two of Hor Majesty's Justices of tho Peace for tho said County (or as the case may he) of , for that ho the said J. N. did (here specify the offence and the time and place when andtvlwre t/bc samc>.was committed, as tJie case may he), and we do adjudge that the said J. N. sliall fur tlie said otfenco forfeit the sum of , and shall pay tho sjune imme- diately (or shall pay tho same on or before tho day of ) to tho Treasurer of the Given under our hands tho day and year first above mentioned. A. B. CD. 17. The Justices of the Peace by whom any person is sum- marily convicted and adjudged to pay any sum of money for any offence against this Act, may adjudge that such person shall pay the same either immediately or within such period as the said Justice thinks fit; and in case such sum of money is not paid by the time so appointed, the same shall be levied by distress and sale of the goods and chattels of the offender, together with the reasonable charges of such distress; and for want of sufficient distress, such offender shall be imprisoned in the common gaol for any term not exceeding one month when the fine to be paid does not exceed twenty dollars, and for any term not exceeding two months in any other case ; the imprisonment to cease in every case upon payment of the sum due. 18. No conviction for any offence against this Act shall be quashed for want of form, or be removed by certiorari or other- wise into any of Her Majesty's Superior Courts of Record ; and no warrant of commitment shall be held void by reason of any defect therein, provided it is therein alleged that it is founded on a conviction, and there is a good and valid conviction to sus- tain the same. 19. Where any distress has been made for levying any moneys by virtue of this Act, the distress itself shall not be deemed unlaW' 14 OON8TAHLK8' MAJTUAL. ful, nor tlio party making tlio samo bo deemed a trcapassor on account of any defect or want of form in the summons, convic- tion, warrant, distress or other proceech'nj^s relating thereto, nor shall the party distraining be deemed a trespasser ah initio on account of any irregularity afterwards committed by him ; but the ])er8on aggrieved by such irregularity may recover full satis- faction for the special damage, if any, in an action upon the case. 20. The prosecution for every olfciujo punishable upon sum- mary conviction by virtue of this Act, shall bo commenced within two months after the commission of the offence. 21. Every penalty or forfeiture for any offence against this Act shall be paid to the Treasurer of the Territorial Division or other Municipal Division within which the offence was committed. PROTECTION OF PERSONS ACTINC. UNDER THIS ACT. 22. All actions and prosecutions against any person for any- thing done in pursuance of this Act shall be laid and tried in the Tmnty or other proper venue where the fact was committed, and b.--ill be commenced within six months after the fact committed, and not otherwise; and notice in writing of such cause of action shall be given to the defendant one month at least before the commencement of the action. 23. No plaintiff shall recover in any such action, if tender of sufficient amends was, by or on behalf of the defendant, made before action brought, or if a sufficient sum of money has been paid into Court since action brought; and though a verdict is given for the plaintiff in any such action, the plaintiff shall not have costs against the defendant, unless the Judge before whom the trial is had certifies his approbation of the action and of the verdict obtained. The office of Constable is either strictly derivative or minis- terial, as in obeying warrants and precepts of Justices, Coroners and Sheriffs, and the charges of private individuals; or is original Bnd Judicial, as a conservator of the peace at common law; and in many cases it is exercised by virtue of particular Acts of Parliament. It has been asserted, however, that the office is OFFTOE OP 0ON8TABT.B. 15 wholly ministerial, and no way judicial, but tliis seems too general a position. Burns' Jus., 994; li. v. Stuhha^ 2 T.U. 40G. Inasmuch as the office is wholly ministerial, and no way judi- cial, it seems that a Constable may at common law appoint a deputy to execute a warrant directed to him, when, by reason of sickness, absence or otherwise, he cannot do it himself; yet it doth not seem to bo settled that a Constable can make a deputy without some special cause. Burns' Jus., 1000. In R. v. Clarke^ 1 T. K. 6S2, it seemed to bo admitted as a settled point that a Constable may appoint a deputy. See also MedhiWKt v, Wate^ 3 Burr. 1259. Under the Interpretation Act, 31 Vic. chap. 1, 8. Y, twenty-eightly words directing or empowering a i)ublic officer or functionary to do any act or thing, or otherwise applying to him by his name of office, shall include his successors in such office and his or their lawful deputy. See also Kev. Stat. (Ont.) chap. 1, s. 8, 8ub-8. 20. This would seem to indicate that a Constable may appoint a deputy to perform ministerial acts. The deputy, when appointed, has all the privileges of the Constable himself. The superior must be answerable for his deputy upon any miscarriage, unless the deputy is duly allowed and sworn, for then he is Constable. Burns' Jus., 1000. The following form of appointment of deputy may be used : I, A. B. , Constable of in the County of do liereby make, substitute and appoint C. D. , of in the said County (Yeoman), my true and lawful deputy in the office of Constable so long as I shall hold the same {or during the continuance of my will and pleasure). Dated at the of in the County of this day of A.D. 18 . A. B. Actual residence in the parish is essential to impose on the occupier of property the burden of serving the office of Constable. B. V. Adlard, 7 D. & R. 340; 4 B. & C. 772. A man may be liable to serve the office of Constable in several constablewicks, but if chosen Constable in two constablewicks for the same year, acceptance of the first appointment will excuse his non-acceptance of the second. E. v. Mosley^ 3 A. & E. 488. 16 constables' manual. A naturalized foreigner is not eligible to the office of Constable. li V. Ferdinand de Mierre, 5 Burr. 2787. If persons duly cnlled upon by the Magistrates to serve as Special Constables refuse to do so, the Magistrates ought to cause them to be indicted. R. v. Vincent, 9 C. & P. 91 ; see in Ontario Rev. Stat., chap. 83, s.s. j3, 14 & 15, ante pp. 11, 12. An indictment charged that the defendant, being elected to the office of Constable, neglected and refused to take upon himself the execution of the office. The proof was that he refused to take the oath of office. It was held that this was prima facie evidence of a refusal to take upon himself the execution of the office. B. V. Brain, 3 B. & Ad. 614 ; and see Rev. Stat. (Ont.) chap. 83, s. 13, ante p. 11. There is no doubt that any one, whatever his rank may be, is bound to serve the office of Constable if appointed to it, unless he can claim exemption upon some special grounds, as by showing that he is in holy orders, or is a barrister, physician, surgeon, attorney, justice of the peace, or that he fills some other incom- patible office. Wilson, 10: citing B. v. Booth, 12 Q. B. 884; B. V. Wood, 1 Esp. 358 ; Underhill v. Wilts, 3 Esp. 56. In Ontario, under the Revised Statutes, chap. 82, s. 11, the officers, non-commissioned officers and men of corps of volunteers shall, while they continue such, be exempt from serving as Con- stables; and a certificate under the hand of the officer com- manding any such corps shall be sufficient evidence of the service in his corps of any officer, non-commissioned officer or man for the then current year, and of his exemption as aforesaid. AS TO THE GENEEAL POWERS OF A CONSTABLE. A Constable has great original and inherent power with regard to arrests. He may arrest any one for a breach of the peace committed in his view, and carry him before a Justice ; and in case of felony actually committed, or a dangerous wounding whereby felony is likely to ensue, he may, upon probable sus- picion, arrest the felon, and for such purpose he is authorized, as GENERAL POWERS OF CONSTABLES. 17 upon a warrart, to break open doors and even to kill the felon if he cannot otherwise be taken. "Wilson, 20; 4 Bl. Cora. 292; Goupey v. Henley, 2 Esp.*540. He may arrest any one suspected upon a complaint of felony committed, or he may, after demand of admittance and refusal, break into a house to arrest in such a case. He may arrest, on complaint, him that threatens death. It is said he may in some cases take surety from or for the party arrested, for his appear- ance before a Magistrate. He may certainly, after arresting upon Buspicion of felony, discharge the party altogether if he find his suspicion groundless. Under the Police Regulations of the City of Toronto, when a Constable takes a person into custody, with or without warrant, on the charge of another, he should never discharge him on his own authority, but bring him to the station and have the particulars entered in the books. So if he arrest in consequence of it appearing that a dangerous wound has been inflicted, likely to end in felony, he ought not to detain the party if on examination it is evident the wound is not dangerous. And it would seem, if he can discharge absolutely in such cases, there can be no reason why he should not be able to discharge in a more qualified manner, namely, by taking security from the party, or from other persons for him, for his appearance' before a Magistrate as the condition of his being discharged, and particu- larly in a case where, although it cannot be said there is no evi- dence against the party, it is nevertheless so slight that it may be doubtful whether any charge can be maintained against him. It is clear, however, that a Constable cannot take a recognizance or any obligation to keep the peace ^ and it is recommended also that no Constable shall ever take security from any one who has been arrested, or who ought to be prosecuted ; for that Constable will best perform his duty who does not in any case allow a party against whom there is the slightest suspicion to go at large upon any security, or upon any ofler of security, without the interposi- tion of a Magistrate, for his general duty is "to take all wrongdccsrs before a Magistrate ;" and he should know that if he wrongly dis- charged a prisoner committed to his custody, he may be indicted for his misconduct. Wilson, 20-1 ; R. v. Boottie, 2 Burr. 864. 3 18 CONST ABLES' MANUAL. A Constable may make proclamation that affrayers do depart, and he may on fresh pursuit follow an affrayer into another county ; he may break open a house to which an affrayer has fled to take him. But here and every w^ere else, when it is said a house may be broken, it is to be understood that can only be done — (1), after demanding admission ; (2), after acquainting the inmates of the object of the demand ; and (3), upon being refused admission ; for not until then can any house be forcibly broken. Wilson, 21, 22. A Constable may break open a house in which an affray is going on. An affray is a fighting between two or more persons in some public place, to the terror of Her Majesty's subjects ; for example, a prize fight. If it takes place in private it will be an assault. There must be a stroke given or offered, otherwise it is not an affray. But it appears if a man arm himself with dangerous and u a usual weapons, as naturally to cause terror to the people, it will be an affray although there be no actual violence. But quarrelsome or threatening words will not make an affray, and therefore it is not allowable to lay hands on persons for merely quarrelling with angry words : in such a case the Con- stable should admonish them to refrain. It" they do not refrain, and if the words are urging or intended to lead to a breach of the peace, it would seem the parties may be arrested as for a breach of the peace and a nuisance. Wilson, 22. A Constable may arrest any one who opposes or insults him in the execution of his duty, although only by words. A Constable may arrest any one unknown to him, and take him before a Magistrate, for profanely swearing or cursing in his presence ; so he may arrest for prevention of felony. He may arrest one for selling wares, or using unlawful sports on Sundays. He may arrest any one for playing with false dice, or committing sny other indictable fraud affecting the public. He may arrest any one for keeping a common gaming house, for it is a nuisance and a misdemeanor. Wilson, 23 ; li. v. Rosier^ 1 B. & C. 272 ; R. v. Taylor, 3 B. & C. 502 ; B. v. Dixon, 10 Mod. 336. Under "An Act for Suppressing Gaming Houses, and to Punish the Keepers thereof,' 38 Vic. chap. 41, if the GENERAL POWERS OP CONSTABLES. # Chief Constable, Deputy Chief Constable, or other officer autho- rized to act in his absence, of any City or Town, shall report in writing to any of the Commissioners of Police or Mayor of such City or Town, or to the Police Magistrate of any Town, that there are good grounds for believing and that he does believe that any house, room or place within the said City, is kept or used as a common gaming house, whether admission thereto be limited to those possessed of entrance keys or other- wise (see 40 Yic. chap. 33), it shall be lawful for the said Com- missioners or Commissioner, or Mayor, or the said Police Magis- trate, by order in writing, to authorize the said Chief Constable, Deputy Chief Constable or other officer as aforesaid, to enter any such house, room or place with such Constables ae. may be deemed requisite by the said Chief Constable, Deputy Chief Con- stable, or other officer as aforesaid, and if necessary, to use force for tLe purpose of effecting such entry, whether by breaking open doors or otherwise, and to take into custody all persons who shall be found therein, and to seize all tables and instruments of gaming found in such house or premises, and also to seize all moneys and securities for money found therein. It shall be lawful for the Chief Constable, Deputy Oliief Con- stable, or other officer as aforesaid, making such entry as afore- said in obedience to any such order as aforesaid, with the assist- ance of any Constable or Constables accompanying him, to search all parts of the house, room or place which he shall have so entered, where he shall suspect that tables or instruments of gaming are concealed, and all persons whom he shall find therein, and to seize all tables and instruments of gaming which he shall 80 find. Similar powers of entry and search are given by other Statutes. Thus the 38 Vic. chap. 40 provides, if any Constable or Peace Officer has reasonable cause to suspect that any timber, mast, spar, Baw-log, or other description of lumber, belonging to any lumber- man or owner of lumber, and bearing the registered trade mark of such lumberman or owner of lumber, is kept or detained in any Baw-raill, mill-yard, boom or raft, without the knowledge or consent of the owner, it shall be lawful for such Constable or Peace Officer 20 ' constables' manual. I to enter into or upon the same, and search or examine for the purpose of ascertaining whether such timber, mast, spar or saw- log, or other description of lumber, is detained therein without Buch knowledge and consent. In the Province of Ontario, under " The Liquor License Act," Rev. Stat. (Ont.) chap. 181, any Officer, Policeman, Constable, or Inspector of Licenses, may, for the purpose of preventing or detecting the violation of any of the provisions of this Act which it is his duty to enforce, at any time enter into any and every part of any inn, tavern, or other house or place of public enter- tainment, shop, warehouse, or other place wherein refreslimenta or liquors are sold, or reputed to be sold, wJiether under license or not, and may make searches in every part thereof, and of the premises connected therewith, as he may think necessary for the purpose aforesaid. Ih. s. 95. 2. Every person being therein, or having charge thereof, who refuses or fails to admit such. Officer, Policeman, Constable, or Inspector, demanding to enter in pursuance of this section, in the execution of his duty, or who obstructs or attempts to obstruct the entrance of such Officer, Policeman, Constable or Inspector, or any such searcher as aforesaid, shall be liable to the penalties aud punishments prescribed by section 51 of this Act. Any Justice of the Peace or Police Magistrate, if satisfied by information on the oath of any such Officer, Policeman, Constable or Inspector, that there is reasonable ground for belief that any spirituous or fermented liquor is being kept for sale or disposal contrary to the provisions of this Act, in any unlicensed house or place within the jurisdiction of the Justice or Magistrate, may in his discretion grant a warrant under his hand, by virtue whereof it shall be lawful for the person named in such warrant, at any time or times within ten days from the date thereof, to enter, and if need be by force, the place named in the warrant and every part thereof, or of the premises connected therewith, and examine the same and search for liquor therein ; and for this purpose may, witli such assistance as he deems expedient, break open any door, lock or fastening of such premises or any part thereof, or of any closet, cupboard, box, or other article likely to contain any such GENERAL POWERS OF CONSTABLES. 21 liquor ; and in the event of any liquor being so found unlawfully kept on the said premises, the occupant thereof shall, until the con- trary is proved, be deemed to have kept such liquor for the pur- pose of sale, contrary to the provisions of the fortieth section of this Act. Ih. 8. 96. It shall be the duty of every Officer, Policeman, Constable, or Inspector of Licenses in each Municipality, to see that the several provisions of this Act are duly observed, and to proceed by infor- mation, and otherwise prosecute for the punishment of any offence against the provisions of this Act; and in case of wilful neglect or default in so doing in any case, such Officer, Policeman, Con- stable or Inspector, shall incur a penalty of ten dollars for each and every such neglect and default. Ih. s. 97. I: the Province of New Brunswick, it is the duty of all Con- stables to search out and prosecute all offenders against the laws in force with reference to the sale of spirituous liquors, by making complaint, and prosecuting the same to conviction before some Court of competent jurisdiction. Con. Stat. (N.B.) chap. 105, s. 9. The 38 Vic. chap. 42, was passed to prevent cruelty to animals while in transit by railway or other means of conveyance within the Dominion of Canada. Under this Act, horses, cattle or other animals on railways or vessels must not be kept more than 28 consecutive hours without unlading the same for rest, water and feeding for a period of at least five consecutive hours. By section 6 of this Act, any Peace Officer or Constable may at all times enter on premises where he has reasonable grounds for supposing that any car, truck or vehicle, in respect whereof any company or person has failed to comply with the requirements of this Act is to be found, or enter on board any vessel in respect whereof he has reasonable grounds for supposing that any com- pany or person has on any occasion so failed ; and if any person refuses admission to such Peace Officer or Constable acting under this section, such person shall be deemed guilty of an offence against this Act. It is conceived that in the cases mentioned in the foregoing Statutes the Constable may act without a search warrant ; but (^ constables' manual. except in these cases, or «where it is so specially authorized by Statute, it is recommended that the Constable have a search warrant. A Constable may arrest any one for cock-fighting, for it is illegal, and indictable at common law. He may arrest night walkers and persons who frequent bawdy houses ; that is, he may arrest persons found misdoing, but he cannot take up a woman of ill-fame on mere suspicion who is not misconducting herself; and under the Yagrant Act, 32 & 33 Vic. chap. 28, it seems a Constable would have no right to arrest a common prostitute without first asking her to give a satisfactory account of herself and receiving a refusal from her to give such account, for a com- mon prostitute has a right to walk the streets for a lawful purpose, and the ofifence only arises on refusal to give a satisfactory account after being required so to do. /L v. Levecque, 30 Q. B. (Ont.) 509. But subject to the above qualification, a woman found between one and two in the morning, who is a loose, idle, lewd and dis- orderly person and a common street walker, and who is behaving herself riotously and walking the streets to pick up men, may be arrested without warrant, and kept in custody until she can be taken before a Magistrate. Wilson, 23. ^ To suppress an affray or accomplish an arrest, a Constable may call to his assistance any private person present, who will be bound to render aid, under the penalty of severe punishment for refusal or neglect (see also 31 Yic. chap. 70, s. 4) ; but the Con- stable must carry this in mind, that to warrant his interference there must be evident appearance that a felony or other crime against the Queen's peace is on the point of being committed ; and this caution also may be given as to threats, that mere rash words or abusive or violent language used to the Constable or to any other person, unless calculated to deter the officer from doing his duty, or directly tending to a breach of the peace, would not cf themselves form a sufiicient ground for the arrest of the wrong- doer. Every Constable should properly be provided with a painted Btafi', as an ensign of authority as well as a weapon of defence. This should be held so that it can be readily seen, for if the noise DUTIES OF CONSTABLES. • 23 be too great to make himself heard, the production of his staff may be held a notification of the Constable's authority. Where possible, let a Constable make known his office by word of mouth, and call upon parties in the Queen's name to submit to his authority. Patton, 17. The general rule is, that before a person interferes to prevent others from fighting he should first notify his intention to prevent a breach of the peace. R. v. Rlohets^ 3 Camp. 68. But it seems that where the circumstances are such that a man must know why a person is about to apprehend him, he need not be told why, and the arrest will be legal and the resistance illegal, as much as if he had been told. R. v. Howarth, Mood. C. C. 207 ; Burns' Jus. 288. And where a Constable acts without warrant by virtue of his office of Constable, he should, unless the party be previously acquainted with it, notify that he is a Constable, or that he arrests in the Queen's name and for what, and this applies more particu- larly to a Special Bailiff. But it will, it should seem, be sufficient if, from the circumstances, the offender may collect he is a Con- stable, and if he shew his stafi" of office, it will suffice. It is much the best for the Constable, in all cases not requiring immediate interference, to obtain a Magistrate's warrant for apprehending a party, and if he does he will be entitled to the benefit of the 24 Geo. II. chap. 44, s. 8, which protects him when acting under a warrant on his granting on request a copy thereof. See notes on this Statute infra. «/ ■■•■,■■ '^'V- ' . ■ t- ^ -'■'■■ AS TO THE DUTIES OF CONSTABLES. It will be needless to repeat many of the duties of the Con- stable which are to be inferred from the list of his powers ; for instance, when it is said he may arrest to prevent felony, it neces- sarily follows that it is his duty so to do, and it would be impos- sible, without needless repetition, to set out his powers in one place and his duties in another, as they run so frequently into and side by side with each other. 24 constables' manual. , A few of his general duties may be stated aa follows : 1. He mu8t execute within his locality all process of the Justices directed to him, wlien the Justices have jurisdiction in the place and over the matter contained in the warrant. 2. He must certify what he has done upon every warrant, but he ought not to give it up, for it is liis protection. 3. He should make outcry, and pursue till taken any one making resistance with force. 4. He sliould call out, and give warning to the public at any large gathering, if he sees thieves or otlicr suspicious characters about, to beware of them. Stockeu v. Carter, 4 C. & P. 477. 5. He must keep watch and ward : ward being applied to the day and watch to the night time. 6. He must aid landlords in the daytime to break open any house to wliich the goods of a tenant have been clandestinely removed and are fraudulently concealed ; but if such place is a dwelling house, oath must first be made before a Magistrate of tliere being reasonable ground to suspect that the goods are con- cealed there. 11 Geo. II. chap. 19, sec. 7. 7. He should use all reasonable force to keep back the people crowding forward to a place which has to be kept clear ; but he must not strike any one a blow to make him stand back when such person cannot get back in consequence of the pressure behind him. Imcson v. Cope, 5 C. & P. 193. In such a case, the Con- stable should confine himself to the use of pressure, and should wait a short time to afford an opportunity for removing the party in a more peaceable way. 8. He should not treat with unnecessary hardship or restraint, and should not handcuff any one when he has no reason to fear an escape, and when the person is behaving peaceably : he is very reprehensible if he do so. Wright v. Court, 4 B. & C. 596 ; Oa- born V. Veitch, 1 F. & F. 317. 9. He is the proper officer of Justices of the Peace, and should observe all the regulations laid down for his guidance by his superiors. Wilson, 23-4. STATUTES AS TO ARREST. S0 A Constable has a duty to perform under Coroners as well as Justices. If the Constable has reason to believe that a death has occnrred from violence or unfair means, or by culpable or negli- gent conduct, either of the deceased himself or of others, under Buch circumstances as require investigation, and not through mere accident or mischance — see Rev. Stat. (Out.) chap. 79, s. 2 — the Constable of the place should notify the nearest Coroner while tlie body is fresh, and if possible while it remains in the same situation as when the party died, and the Constable should attend the Coroner when he arrives. AS TO THE CASES IN WHICH THE RIGHT TO ARREST IS GIVEN BY STATUTE. Under " An Act respecting Offences relating to Coin," 32 & 33 Vic. chap. 18, s. 33, it shall be lawful for any person whatsoever to apprehend any person who is found conmiitting any indictable offence against this Act, and to convey or deliver him to some Peace Officer, Constable, or Officer of Police, in order to his being conveyed as soon as reasonably may be before a Justice of the Peace or some other proper officer, to be dealt with according to law. Under " An Act respecting Offences against the Person," 32 & 33 Yic. chap. 20, s. 37, whoever wilfully disturbs, interrupts or disquiets any assemblage of persons met for religious worship, or for any moral, social or benevolent purpose, by profane discourse, by rude or indecent behaviour, or by making a noise, either with- in the place of such meeting or so near it as to disturb the order or solemnity of the meeting, may be arrested on view by any Peace Otiicer present at such meeting, or by any other person present thereto verbally authorized by any Justice of the Peace present thereat, and detained until he can be brought before a Justice of the Peace. v Under " An Act for the better Preservation of the Peace in the Vicinity of Public Works," 32 & 33 Vic. chap. 24 (amended by the 33 Vic. chap. 28, and 38 Vic. chap. 38), s. 8, any Commis- sioner or Justice, Constable or Peace Otiicer, or any person acting under a warrant in aid of any Constable or Peace Officer, may constables' manual. arrest and detain any person employed on any railway, canal or other work, found carrying any weapon mentioned in the Act within any place where the Act is at the time in force, at such time and in such manner as in the judgment of such Commis- sioner, Justice, Constable or Peace Officer, or person acting under a warrant, affords just cause of suspicion that they are carried for purposes dangerous to the public peace. Under " An Act respecting certain Offences relative to Her Majesty's Army and Navy," 32 & 33 Vic. chap. 25, s. 7, any person reasonably suspected of being a deserter from Her Majesty's service may be apprehended and brought for examination before any Justice of the Peace; and if it appear that he is a deserter, he bhull be confined in gaol until claimed by the military or naval authorities, or proceeded against according to law. Under " An Act respecting Cruelty to Animals," 32 & 33 Vic. chap. 27, s. 4, when any offencre against this Act is com- mitted, any Constable or other Peace Officer, or the owner of any such cattle, animal or poultry, upon view thereof, or upon the information of any other person (who shall declare his or their name or names and place or places of abode to the said Constable or other Peace Officer), may seize and secure by the authority of this Act, and forthwith, and without any authority or warrant, may convey any such offender before a Justice of the Peace within whose jurisdiction the offence has been committed, to be dealt with according to law. Under " An Act respecting Riots and Eiotous Assemblies," 31 Vic. oliap. 70, s. 4, if twelve or more of the persons so unlawfully, riotously and tumultuously assembled, continue together after Proclamation made in manner specified in the Act, and do not disperse themselves within one hour, then every Justice of the Peace, Sheriff and Deputy Sheriff, of the District or County where such assembly may be, and also every High and Petty Constable and other Peace Officer within such District or County, and also every Mayor, Justice of the Peace, Sheriff, and other Head Officer, High or Petty Constable, and other Peace Officer of any City or Town incorporate where such assembly may be, and any person or persons commanded to assist such Justice of the Peace, Sheriff BTATUTK8 A8 TO ABBK8T. 27 or Deputy Sheriff, Mayor, Bailiff, or other Read Officer aforesaid (who may coininand all Iler MajeBty's subjectB of age and ability to bo assisting to them therein), shall seize and apprehend the persons so unlawfully, riotously and turaultuously continuing together after Proclamation made as aforesaid, and shall forthwith carry the persons so apprehended before one or more of Iler Majesty's Justices of the Peace of the District, County or place where such persons are so apprehended, in order to their being proceeded against for such their offences according to law. If in the dispersing, seizing or apprehending, or endeavouring to disperse, seize or apprehend, any of the persons so unlawfully, riotously and tumultuously assembled, any such person happens to be killed, maimed or hurt by reason of their resisting the per- sons dispersing, seizing or apprehending, or endeavouring to dis- perse, seize or apprehend them, then every such Justice of the Peace, Sheriff, Deputy Sheriff, Mayor, Head Officer, High or Petty Constable or other Peace Officer, and all persons who were aiding and assisting them, or anj' of them, shall be free, discharged and indemnified, as well against the Queen's Majesty as against all and every other person and persons of or concerning the killing, maiming or hurting of any such person or persons so unlawfully, riotously and tumultuously assembled as aforesaid. Ih. s. 5. . The order and form of the Proclamation to be made !jy the authority of this Act shall be as follows, that is to say: The Justice of the Peace or other person authorized to make the said Proclamation shall, among the said rioters, or as near to them as he can safely come, with a loud voice command or cause to be commanded silence to be while Proclamation is making, and after that shall openly and with a loud voice make or cause to be made Proclamation in these words, or like in effect : Our Sovereign Lady the Queen chargeth and commandeth all persons being assembled immediately to disperse themselves, and peaceably to depart to their habitations or to their lawful business, upon the pains contained in the "Act respecting Riots and Riotous Assemblies." God save the Quedn. Ih. s. 2. 28 OONBTABLES' MANUAL. Undor " An Act respcoting tho Elections of Meinhors of the Honso of Commons," 37 Vic. chap. 9 (amended by 39 Vic. chap. 9), 8. 81, every Rotiiriiing Officer and every Deputy Returning Officer, from tho time tliey sluUl respectively have taken tlio oath of ofHce until tho day after tho closing of the election, shall bo a conservator of the ])eace, invested with all the powers appertaining to a Justice of the Peace ; and such Returning Officer or Deputy Returning Officer may require tho assistance of Justices of the Peace, Constables, or other persona present, to aid him in main- taining peace and good order at such election, and may also, on a requisition made in writing by any candidate, or by his agent, or by any two electors, swear in such Special Constables as he deema necessary. Ih. s. 82. ; , Such Returning Officer or Deputy Returning Officer may arrest, or cause to bo arrested by verbal order, and place in the custody of any Constables or other persons, any person disturbing the peace and good order at the election, and may cause such person to be imprisoned, under an order signed by him, until any period not later than the close of the poll. The Constable is to be allowed one dollar for his services. lb. s. 126. By the " Act respecting Procedure in Criminal Cases,'* 32 & 33 Vic. chap. 29, s. 2, any person found committing an offence pun- ishable either upon indictment or upon summary conviction, may be immediately apprehended by any Constable or Peace Officer without a warrant, or by the owner of the property on or with respect to which the offence is being committed, or by his servant, or any other person authorized by such owner, and shall be forth- with taken before some neighbouring Justice of the Peace, to be dealt with according to law. Under " An Act respecting Malicious Injuries to Property." 32 & 33 Vic. chap. 22, s. 09, any person found committing any offence against this Act, whether the same be punishable upon indictment or upon summary conviction, may be immediately apprehended without a warrant by any Peace Officer, or the owner of the property injured, or his servant, or any person authorized by him, and forthwith taken before some neighbouxing Justice of the Peace, to be dealt with according to law. 8TATDTE8 AS TO ARREST. 99 Under tliis section it is necessary that the person arrested bIiouM bo "found cointnittiiii;" tlio offence at the time of the apprehension. Simmons v. Millinffen, 2 0. B. 524. When it is intended to arrest an offender on the ground of his hc'uv^ "found committing" an offence against this Act, the offender must be taken either in the act of committing the offence or on fresh pursuit {Ilamoay v. BouUhee, 4 0. & P. 350 ; 1 M. & Rob. 15), but not on his return after committing the offence. R. V. Fhel^s, C. & M. 180. The words "found committing" mean either seeing tlie party actually committing the offence or pursuing him immediately and continuously after his committing it. R. v. Curran^ 3 C. & P. 397. Pursuit after an interval of three hours would not bo a fresh pursuit. Downing v. Capel^ L. R., 2 C. P. 461 ; Leete v. Ilart^ 37 L. J. C. P. 157. A man may be arrested on fresh pursuit without warrant when found committing a felony or breach of tlie peace, though before his arrest he escaped to some distance and hid himself, and tried to escape wlien discovered, and has given over his intention to commit the felony or breach of the peace, if it can be deemed one transaction. See A*, v. Ilovmrth, Mood. C. C. 207. But if the arrest be not made on fresh pursuit, a warrant is necessary. E. V. Gardner, 1 Mood. C. C. 390 ; R. v. Walker, Dears. C. C. 358; Burns' Jus. 287. "Immediately" in the statute means " then and there," and it refers to the commission of the offence and not its discovery. Downing v. Capel, L. R., 2 C. P. 461. Still it must receive a reasonable construction ; and if arrest on the spot is impossible and can only be effected by pursuit, if the pursuit is immediately Bet on foot, and so the party is arrested, in the opinion of Cock- hum, C. J., he would bo immediately apprehended within the meaning of the section, although the apprehension took place not on the spot but at some distance from it. The question is one of fact under the particular circumstances of each case. The law seems to require that the party should do everything that can be constables' manual. done, by telegraph or otherwise, to make the arrest immediate. See Griffith v. Tayli/r, L. K., 2 C. P. D. 194. If a man is found attempting to commit a felony in the night, any one may apprehend and detain him until he can be carried before a Magistrate. R. v. Hunt, 1 M. C. C. 93. The 32 & 33 Yic. chap. 29, s. 4, provides that any person may apprehend any other person found committing any indict- able oifence in the night, and shall convey or deliver him to some Constable or other person, in order to his being taken as soon as conveniently may be before a Justice of the Peace, to be dealt with according to law. It will be observed that this statute fol- lows the common law ; and in this, as in many of the foregoing cases, the provisions of the Statutes as to arrest are merely declara- tory of what the law is, independently of the Statute. Thus, where a Statute enacts tliat any person found committing an offence punishable upon indictment may be immediately appre- hended by any Constable or Peace Officer without a warrant (see ante p. 28), it only constitutes a declaration of what the law was before the Statute. Thus, as we shall hereafter see, not only may a person found committing a felony be arrested without warrant by any Peace Officer, but such person may be arrested without warrant though not so found connnitting the offence, provided the Constable has reasonable and probable cause to sus- pect that he has committed it ; and this whether the Constable is acting on his own suspicions or on information derived from others. The 32 & 33 Vic. chap. 29, s. 5, also provides that any Con- stable or Peace Officer may, without a warrant, take into custody any person whom he finds lying or loitering in any highway, yard or other place during the night, and whom he has good cause to suspect of having comtnitted or being about to commit any felony, and may detain such person until he can be brought before a Justice of the Peace, to be dealt with according to law. By section 6, no person having been apprehended as last afore- said shall be detained after noon of the following day without being brought before a Justice of the Peace. AEEEBT IN OASES OF MI8DEMEAN0E. ^ AS TO ARREST WITHOUT WARRANT IN CASES OF MISDEMEANOR. A Constable is bound to take up any one committing a breach of the peace in his view. He may also, when there lias been a breach of the peace, though not in his presence, and in order to prevent a renewal of it, arrest one whom he has good reason to think is about to break it. But when no breach of the peace has taken place in his view, and there is no likelihood of its being broken, he cannot, either at his own instance or on complaint of any one, arrest without a warrant unless specially authorized by statute. Neither can a Constable receive any person from another who has been arrested by that other for an alleged breach of the peace, unless at his own risk ; that is, if the party taken have broken the peace, the Constable will be right in receiving him into his custody, but if he have not, the Constable will be liable in taking him in like manner as the other will who delivered him to the Constable. The general rule, therefore, for a Constable is, never to arrest or receive any one into his custody for any oJEfence less than felony unless, (1) The Constable has either seen the offence committed, or (2) Fears a breach of the peace, or (3) Unless a warrant, authorizing the arrest, is delivered to him. Wilson, 25. The general rule is that no person can be apprehended without warrant for a mere misdemeanor not attended with a breach of the peace, as perjury or libel {Ifatthews v. Biddidph, 4 Scott, N. E. 54) ; and in misdemeanors other than breaches of the peace in his view, a Constable cannot in general arrest another without warrant, though a doubt has been thrown upon the dis- tinction between the different kinds of misdemeanor. Fox v. Gaunt, 3 B. & Ad. 798 ; Griffin v. Coleynan, 4 II. & N. 205 ; Burns' Jus. 296. In the Province of Ontario, in case any person complains to a Chief of Police, or to a Constable, in a Town or City, of a breach of the peace having been com- mitted; and in case such officer has reason to believe that a 8S' constables' manual. breacli of the peace has been committed, though not in his pre- sence, and that there is good reason to apprehend that the arrest of the person charged with committing the same is necessary to prevent his escape or to prevent a renewal of a breach of the peace, or to prevent immediate violence to person or property; then if the person complaining gives satisfactory security to the officer that he will, without delay, appear and prosecute the charge before the Police Magistrate, or before the Mayor or Bitting Justice, such officer may, without warrant, arrest the person cliarged in order to his being conveyed as soon as con- veniently may be before the Magistrate, Mayor or Justice, to be dealt witli according to law. Rev, Stat, (Ont,) chap. 174, s, 426. This Act creates an exception to the general rule as to the right to arrest for a breach of the peace not committed in view of the Constable. It also requires, as a preliminary, that the party cotnplaining give security to the officer before the arrest ia made. Except in this case, or in any other case where it is specially authorized by statute, it is recommended that a Con- stable never arrest without warrant for a misdemeanor not cooa- initted in his presence. Although a Peace Officer cannot, without a warrant, arrest for any olfence less than a felony, unless it was committed in his view, or unless he have reason to apprehend a renewal of a breach of the peace, but in such cases less than felony, when he is acting under a warrant, he is completely justified, although no breach of the peace at all had taken place, if he had reasonable and probable cause for believing that it had. Wilson, 49 ; Stone- home v. Elliott, 6 T. E. 315. Where a breach of the peace is not committed in the Constable's presence, and in cases less than felony, he must have the warrant in his possession at the time of the arrest, except of course in the special cases provided by the Statute already referred to in Ontario (see ante p. 31). When a warrant has been issued to arrest a person for an offence less than felony, and for which he cannot be arrested without a warrant, the Police Officer who executes it must have ARREST IN CASES OF MISDEMEANOR. 33 the warrant in his possession at the time of the arrest, that the person arrested may have an opportunity of seeing the same if he so desires. Codd v. Vdbe, L. R. 1 Ex. D. 352. Of course, in those cases in which the Constable can arrest without a warrant, this rule does not apply. But in cases requiring a warrajit a Constable arresting without a warrant cannot claim protectioA a Constable from an assault committed upon him in endeavouring to effect an arrest. Thus, wliere a warrant was issued by a Justice of a County, directed to the (youi^table of the Township, and generally to all Her Majesty's Officers of the Peace in and for the Countv, commandinc: them or some of them forthwith to apprehend G., and convey him before two Justices to answer for not obeying a bastardy order for payment of money. The warrant was delivered to the Super- intendent of Police, and had subsequently l)een in possession of D., one of the Police Constables. Afterwards D. and S., Police Constables, while on duty in uniform, arrested G. under the warrant, but they had it not in their possession at the time of the arrest, it being at the station house. G. was rescued ;.y several persons, who assaulted the Constables, whereupon infor- mations for the rescue and assault were laid against the parties by the Constables, and at the hearing before Justices the complaint as to the rescue was wlLhdiHwn, and that for the assault proceeded with, and the parties were convicted. It was held that the con- viction was bad, as the arrest by the Constables was illegal, they not having the warrant in their possession at the time. Galliard V. Laxton, 9 Cox. C. 0. 127 ; 2 B. & S. 363 ; 31 L. J. M. C. 123. It must be remembered, however, that an assault on a Police- man in the execution of his duty, is of a more aggravated nature than a mere common assault, and it does not follow that a defend- ant, though entitled to be acquitted on a charge of assaulting a Policeman in the execution of his duty, would also be acquitted of a common assault. Where a Constable attempts an arrest illegally, a person resisting could not be convictea of an aggravated ass lult ; but if the person resisting used more force and violence than was necessary merely to resist the arrest, he might be con- victed of a common assault. See R. v. Mdbel^ 9 0. & P. 474. 4 84 constables' manual. The rule is clear that for misdemeanors not committed in the presence of the Constable, he cannot arrest without warrant. Tims, an officer of the City of London Police has no authority to arrest a person without a warrant, merely upon suspicion of his having committed a misdemeanor. Bowditoh v. Baldwin^ 5 Exch. 378. And it seems after the commission of any misde- meanor, a Constable is not justified in arresting any person with- out a warrant on suspicion only of his having committed the misdemeanor. Fox v. Gaunt, 3 B. & Ad. 798. Where the party is not caught in the act, suspicion merely without a warrant will not justify the Constable, nor is there any difi'erence between one kind of misdemeanor and another. Ih. See also Griffin v. Coleman, 4 H. & N. 265. An affray is a misdemeanor ; and to justify a Constable in ap- prehending a party without warrant for an affray, it is essential that the party should have been engaged in the affray, and that the Constable should have view of the affray while the party was 80 engaged in it, and that the affray was still continuing at the time of the apprehension. CooTi. v. NeiJiercote, 6 C. & P. 741. If the affray has ceased, the Constable has not the power to apprehend without warrant, for the power is given him by law to prevent a breach of the peace ; and where a breach has been committed and is over, the Constable must proceed in the same way as any other person, namely, by obtaining a warrant from a Magistrate. Ih. The affray may be said to be continuing so long as those who committed it are assembled together and the danger of their renewing it continues ; but where a Constable has not seen the affray, it seems he would not be justified after it was over in taking the party into custody unless upon information made to him, and unless he had reasonable ground to believe in the charge, and the party arrested was concerned therein, Wilson, 31. See Timothy v. Sim.pson, 1 C. M. & E. 757 ; 6 C. & P. 499. But a person is justified in giving in charge, and a Constable in arresting without warrant, a party who has been guilty of a breach of the peace, if there are reasonable grounds for appre- hending its continuance or renewal, but not otherwise, and the AERE8T IN OASES OP MISDEMEANOR. 36 circumstances from which such an inference is raised are for the jury. Baynes v. Brewster^ 2 Q. B. 375 ; 6 Jur. 392. See also Grant v. Mosier, 5 M. «& G. 123 : 7 Jur. 854. A. was indicted for assaulting a Policeman in the execution of his duty. It appeared that the Policeman had gone into a public house where the defendant was having high words with the land- lady. The defendant tried to go into a room in the house in which a guest was, and the Policeman, without being desired to do so, collared him and prevented him from going into the room, and A. struck the Policeman, and several blows passed on both sides. It was held that if the jury was satisfied that no breach of the peace was likely to be committed by the defendant on the guest in the room, it was no part of the Policeman's duty to prevent the defendant entering it ; but assuming that to be so, if the defendant used more violence than was necessary to repel the assault committed on him by the Policeman, the defendant would be liable to be convicted of a common assault. R. v. Mahel^ 9 C. &P. 474. A plea justifying an arrest for an affray without warrant ought to contain a direct averment that there was an affray or a breach of the peace continuing at the time of the arrest, or a well- founded apprehension of its renewal. Price v. Seeley^ 10 C. & F. 28. In the case of affrays on the streets, or of assault upon the Police, attempts to rescue, or obstruction in the performance of their duties, it is most desirable that the Constables should not take persons into custody at the time, if they are known and can be apprehended afterwards on a warrant obtained from a Magis- trate. But this does not apply to those cases in which it is neces- sary to take persons into custody in order to put an end to a disturbance or to prevent acts of violence being committed. See Police Regulations of Toronto. But the rule is clear that a Constable, having view of a breach of the peace, has a right to arrest on the spot and without warrant. Fido V. Wood^ 5 O. S. 558. Thus, if a person is guilty of an assault and battery, a Policeman who is present and sees the 96 constables' manual. oflPence committed is justified in taking the offender at once into custody witiiont warrant, in order to take him before a Magistrate to answer for the offence ; and if such person is taken into custody, he cannot maintain an action against a bystander for directing the Policeman so to take him into custody. Derecourt v. Cor- Ushley, 5 E. & B. 188 ; 1 Jur. N". S. 870. If a Constable sees a person committing a breach of the peace in a public house, he is justified in arresting him without a war- rant. See Howell v. Jackson, 6 C. & P. 723. If a Constable sees an assault committed, he may recently after that assault, and before all danger of further violence has ceased, apprehend the ofiender ; and if in so doing he is resisted and assaulted, tlio person assaulting is liable to bo convicted of assaulting a Constable in the execution of liis duty. R. v. Light, 7 Cox C. C. 389; Dears. C. C. 332. But the arrest must be made recently after the assault, and while there is danger of renewal. A. committed an assault upon a Constable, who, two hours afterwards, having obtained assistance, and when tliere was no danger of any renewal of the assault, attempted to apprehend him, and was wounded in the attempt. It was held that his appre- hension at that time was unlawful. R. v. Walker, 6 Cox C. C. 371 ; Dears. C. C. 358. So where the prisoner assaulted a Police Constable in the exe- cution of his duty, the Constable went for assistance, changed his plain clothes for his uniform, and after an interval of an hour returned with three other Constables, when he found that the prisoner had retired into his house, the door of which was closed and fastened. After another interval of fifteen minutes, the Con- stables forced open the door, entered and arrested the prisoner, who wounded one of them in resisting his apprehension. It was held, that as there was no danger of any renewal of the original assault, and as the facts of the case did not constitute a fresh pur- suit, the arrest was illegal, as it was not for the purpose of pre- venting an afiray or of arresting a person whom the Constable had seen committing an assault. R. v. Marsden, L. R., 1 C. C. R. 131. ' • ARREST IN OA8E8 OF MISDEMEANOR. 87 From the cases jnst cited it will be seen that the power of the Constable is not more extended when he is himself the object of the assault, for a Constable is not allowed to act officially in his own case except at the time of the assault or resistance, while there is otherwise danger of escape, or to suppress an actual dis- turbance, and enforce the law while it is in the act of being resisted. When the act is over and time intervenes, so that there is no present disturbance, it becomes like any other offence, a matter to be dealt with on a proper complaint upon oath to a Justice of the Peace, who will issue his warrant. Powell v. Wil- limnson, 1 Q. B. (Ont.) 156. The rule is well established that unless the misdemeanor is committed in view of the Constable, he is not justified in arresting without a warrant. Thus, where B. went to a house at night, demanding to see the servant, he was told to depart, and would not. A Constal)le was sent for, and B. went from the house to the garden. When the Constable arrived, B. said that if a light appeared at the windows he would break them, upon which the Constable took him into custody. It was held that the Constable was not justified in so doing, because the prisoner had committed no offence in his presence. H. v. Bright, 4 C. & P. 387. A Constable is not justified in taking a person into custody for a mere assault, unless he is present at the time. Coupey v. Henley, 2 Esp. 540. Using loud words in the street, though disorderly, is not an offence for which a party should be taken into custody. Hardy V. Murphy, 1 Esp. 294. If a party is turning towards the wall in a street on a parti- cular occasion, a watchman is not justified in collaring him to prevent him so doing. Booth v. Uanley, 2 C. & P. 288. If a Constable is preventing a breach of the peace, and any person stands in his way to hinder him from so doing, the Con- stable is justified in taking such person into custody, but not in giving him a blow. Levy v. Edwards, 1 C. & P. 40. In the Province of Ontario, a Constable is empowered to arrest : (1) All poor and indigent persons who are incapable of sup- porting themselves. 38 CONSTABLfle' MANUAL. (2) All persons without the means of maintaining themselves, and able of body to work, and who refuse or neglect so to do. (3) All persons leading a lewd, dissolute or vagrant life, and exercising no ordinary calling or lawful business sufficient to gain or procure an honest living. (4) And all such as spend their time and property in public houses, to the neglect of any lawful calling. (5) And idiots. On arresting any person or persons of this class, the Constable should bring him or them before a Police Magistrate, or any two of Her Majesty's Justices of the Peace, who may, by writing under his or their hand and seal, or hands and seals, commit to the House of Industry or of Refuge, to be employed and governed according to the rules, regulations and orders of the House. Rev. Stat. (Ont.) chap. 174, s. 451 ; 29 & 30 Vic. chap. 51, ss. 414, 415. There must be a warrant before the arrest in all cases of mis- demeanor, unless the party is found committing the offence, or unless a Statute otherwise order. (See ante p. 31.) An arrest without a warrant is illegal in cases where a warrant is required. A warrant issued in the County of Oxford, and given to a Con- stable, stated : " Robert Scarlett, of the County of Grey, hath this day, 1st November, 187G, been charged upon oath, before M. T., one of Her Majesty's Justices of the Peace in and for the County of Oxford, for that he, within the month last past, at the County of Grey, did embezzle and fraudulently appropriate to his own use certain property belonging to William McGregor and F. M. Colecleugh, viz., a mill saw, shingle machine and parts of an engine, and is now on his way to leave the country, evidently with the design of defrauding the said William McGregor and F. M. Colecleugh. These are therefore to command you, in Her Majesty's name, forthwith to apprehend the said Robort Scarlett, and to bring him before me or some other of Her Majesty's Justices of the Peace in and for the said County of Oxford, to answer unto the said charge, and to be further dealt with accord- ing to law." ^r; ■ --:— T -r AEREST FOR 8WEARINO. 39 It was held that the warrant vvoiikl have been sufficient on its face if it liad alleged that the defendant was or had been the clerk or servant, or was or had been employed in that capa city, and that he had received the property said to have been embezzled by him or that it had been delivered to him or taken into his possession for or in the name or on the account of the master or emj)loyer. Tlie warrant also charged the embezzle- ment at the County of Grey, whilst the Magistrate was acting in and for the County of Oxford. It should also have shewn that the defendant hp*d the property in liis possession in the County of Oxford (see 32 & 33 Vic. chap. 21 s. 121 ; Chirke's Mag. Man. 7), or that the defendant was residing or being, or suspected of residing or being, within the limits of the 8£iid County. 32 & 33 Vic. chap. 30, s. 1 ; Clarke's Mag. Man. 22-3. McGregor v. Scarlett, 7 P. R. (Ont.) 20. AS TO THE RIGHT TO ARREST FOR SWEARING. By the 19 Geo. II, chap. 21, s. 3, in case any person or persons shall profanely swear or curse in the presence and hearing of any Constable, it shall and may be lawful for any and every such Constable, and they and each of them are hereby authorized and required (in case any such person shall be unknown to an^f such Constable), to seize, secure and detain such oifender or offenders unknown to him or them as aforesaid, and such oifender or offenders forthwith to carry before the next Justice of the Peace for the County, or before the Mayor or other Chief Magistrate of the Town Corporate wherein such offence was committed ; and the said Justice, Mayor or other Chief Magistrate, is hereby authorized and required, on the oath of such Constable, to con- vict the offender; and in case any such person so profanely swearing or cursing in the presence or hearing of any such Con- stable shall be known to any of them, every such Constable shall, and is hereby required, speedily to make information before some Justice of the Peace for the County, in order that the offender may be convicted and punished by such Justice. A conviction that "A. did, on the """ day of profanely curse one profane curse " (setting it out), " twenty several 46 CONSTABLE^' MANUAL. times repoatecl," and adjudfjcinf? him to pay " for sncli lii'g offence the penalty of £2," being a curnidative penalty at the rate of 23. for each repetition, is good. li. v. Scott, 8 L. T. N. S. 6G2 ; 4 B. ct S. 308. Using several oaths on one and the same occasion is one offence only, and therefore the 32 & 33 Vic. chap. 31, s. 25, providing that every information shall be for one offence only, and not for two or more offences, does not apply. Ih. AS TO ARREST WITHOUT WARRANT IN CASES OF FELONY. The Constable may arrest for any felony committed in his presence. See also 32 & 33 Vic. chap. 29, s. 2. lie may also arrest on his own suspicion that a felony has been committed, and that the party he arrests is or was concerned in it. So he may arrest on the information of another that a felony has been committed, and that the person arrested is or was concerned in it. See Rogers v. Van Valkenhuryh, 20 Q. P>. (Ont.) 218. When he acts upon his own suspicion, it must not be upon any loose, vague suspicion, either of an offence having been com- mitted or of its having been committed by the person arrested, but he must, in the language of the law, have reasonable and probable cause for believing both of tliese facts. If he arrest without having reasonable and probable cause for so doing, he will be liable to answer in damages to the aggrieved party for making the arrest; but if he arrest under justifiable circum- stances, he will not be liable for making the arrest, although the party taken was not concerned in the felony, nor will he be liable even although there was no felony at all committed. So also if a Constable arrest one for a felony upon information derived from another, be will be fully authorized in doing so if he had reason- able and probable cause for believing the information he got to be correct, and he will not be liable although, as before stated, no felony in fact had been committed at all. Wilson, 35. The Constable, however, must be careful that he has such reasonable and probable cause to justify his proceedings, for if he has not he will be liable in like manner as any one else would be for his malicious conduct. The Constable should consider, ARREST IN 0A8E8 OF FELONY. 41 m (1) Who it is who gives him the inforinution. (2) Who the person is who is alleged to have committed the offence; and (3) The general probability of the facts narrated. For instance, a Constable is not jnstificd in apprehending a person as receiver of stolen goods, on the mere assertion of the principal felon. Isaacs v. Bratul, 2 Stark. 107. So also, it follows that if he arrest on his own suspicion of the party being a felon, or upon infornuition communicated to him by another, he should not detain the party arrested after his sus- picions are or ought to be entirely removed, or if he discover the information which was given him to bo false or untrustworthy. Wilson, 36. Thus, if a Constable arrest on suspicion of theft, and after searching the party discover nothing, and the sus})icion appears to be groundless, he may discharge the party out of his custody without taking him before a Magistrate. lb. MoClouyhan v. Clayton, 1 Holt's N. P. C. 478. A Constable may arrest on information of others that a party has committed a felony. Thus, if a reasonable charge of felony is made against a person who is given in charge to a Constable, the Constable is bound to take him, and he will bo justified in so doing though the charge may turn out to be unfounded. Cowlea V. Dunhar, 2 C. & P. 565 ; M. & M. 37. A Peace Officer may justify an arrest on a reasonable charge of felony without a warrant, although it should afterwards appear that no felony had been committed, but a private individual cannot. Samuel v. Payne, 1 Doug. 359. A Constable is justified in apprehending a person charged on suspicion of felony if he has reasonable or probable cause to believe that the party charged is the felon. Davis v. Russell^ 2 M. & P. 690 ; 5 Bing. 354. Where the Constable acts on his own suspicion, if he has rea- sonable and probable grounds for it, he will be justified. Thus, a Constable having reasonable cause to suspect a person of felony, 42 OON8TABLE8\ MANUAL. may arrest him, tliongli it appears no felony was committed. Bcckwith V. Philhy^ B. & O. 35 ; Ilobhs v. Brandscornh^ 3 Oatnp. 420 ; Murphj v. Ellh^ 2 Hannay, 345. A woman died after a very sliort illness. Rumoura were gene- rally in circulation in the nei^^hbourhood where she had lived that lier husband had poisoned her, and a j^reat crowd was colle(!ted in front of his house ; upon which the Constable of the parish, with- out any warrant, took him into custody and conveyed him before a Magistrate, who detained him till medical men had ro])()rted the cause of death, and then discharged him. It was held that if the jury was of opinion that the Constable had reasonable ground of suspicion to justify the apprehension, an action could not be main- tained for the arrest. Nicholson v. IlardwicTc, 5 C. & P. 495. To justify an arrest by a Constable on a charge of a third per- son, there must be reasonable groimds for such charge, and a Con- stable is not justified in arresting a supposed offender for felony without a warrant, at the instigation of a third party, unless there exists a reasonable charge and suspicion. Hogg v. Ward^ 3 H. & N. 417 ; 4 Jur. N. S. 885. But no duty is imposed on the Constable to inquire into the reasonableness of the chaige; it is enough that it be not unrea- sonable. The Constable is only to take those whom he has good cause to suspect; and if a person whom there is no cause to sus- pect of nntruth come to a Constable and say, " That man has committed felony — take him," that is a reasonable ground for the Constable taking him ; but if at the time there are other circum- stances which shew that the charge is an idle one, the Constable ought not to do so. Ih. A charge of attempting to shoot may justify a Policeman in arresting. shorn v. Veitch^ 1 F. & F. 317. And where a warrant has been issued for the arrest of an offender for felony, a Constable would be justified in arresting such ofiender, though he had not the warrant in his possession, the fact of a warrant having issued on proper information consti- tuting sufficient reasonable and probable cause for the arrest. Watchmen and Beadles have authority at common law to arrest and detain in prison for examination persons walking the streets ARREST IN CASKS OP FELONY. 48 at niujlit, whom tlicro is rcasonablo gfouncl to suspect of felony, althou<;li thoro ia no proof of a folony having been cornmittod. Lawrence v. Iledger, 3 Taunt. 14. Wiitehinon may imprison any person who encourages prisoners in their custody to resist. White v. Edmonds^ Pcako, 89. Tn justifying giving a person into custody on a charge of folony, it is sufficient to prove such facts as constitute a reasonable and probable cause for the charge, although the defendant may have acted not merely on those facts which arc proved, but also on others, the truth of which, although alleged in the plea, are cither not proved or are disproved. Jlailes v. Marks^ 7 Jur. N. S. 851; 7 II. & N. 56. The law is clear upon the point that a Constable may arrest a person without warrant upon a reasonable charge, that is, upon probable information that he has committed a felony. A plea, therefore, to an action for false imprisonment will be good if it shews that at the time of the arrest the defendant was a Peace Officer for the County, and as such was informed that the plain- tiff' had committed a felony, and was then a fugitive from justice on account thereof, and that the defendant arrested the plaintiff and immediately caused him to be brought before the nearest Justice of the Peace to answer the said felony, and that the plain- tiff was detained in the Police Station by said Magistrate, which was the trespass complained of. liogers v. Van Valkenburghy 20 Q. B. (Ont.) 218. When a party whose property has been stolen sets the Police in motion to discover the thief, who of their own authority take up a party on suspicion, and request the other party to sign the charge sheet at the Police Station, his doing so is not a giving into cus- tody which will support an action for false imprisonment. Grin- ham V. Willey, 4 H. & N. 496 ; 5 Jur. N. S. 444. The merely giving a person in charge to a Peace Officer, where the officer never takes the person of the defendant into custody, is not an imprisonment which will support an actilh. Simpson V. iZ"^7^, 1 Esp. 431. 44 constables'* manual. If A., having been robbed, suspects B. to be gnilty, and takes him and delivers him into charge of a Constable present, 13. (if innocent) may maintain trespass against A. Stonehouse v. Elliott, 6 T. E. 315 ; 1 Esp. 272. A party who, seeing a man in custody of a Constable for a sup- posed offence, points out another as the real oifender, but does not direct the Constable to take him into custody, is doc liable in trespass if the Constable does illegally take hira into custody. Gosden v. ElpUck, 4 Exch. 445 ; 13 Jur. 989. The defendant having charged the plaintift with felony, the plaintiff was taken up for it under a Justice's warrant. At the hearing before the Justice, the plaintiff was discharged on his promising to appear again in a week ; upon which the defendant said he had another charge of forgery against him. The plaintiff was stop})ed by an ofhcer and again put to the bar, but dismissed on a similar promise. It was held that his remedy against the defendant was in trespass. Barber v. Rollinson, 1 C. & M, 330; 3 Tyr. 267. Tlie person giving another in charge for a felony, and assisting the Constable in the arrest, is not entitled to an acquittal on the general issue in trespass brought against him together with the Constable. Hough v. Marchant, M. & M. 510. A charge to a Constable on taking a person into custody that he has a forged note in his possession, without anything more, is defective, though the defect is immaterial, it not being necessary that the charge should contain the same accurate description of the offence as an indictment. 12. v. Ford, R. & H. C. C. 329. A charge sheet is sufficient proof of tlie signatures which it contains. Jioss v. Lascelles, 15 L. T. N. S. 293. AS TO ARRESTING ON TELEGRAMS. It is presumed that a Constable acting either upon a letter received in the usual way, or upon a telegram which he has no cause to snsp^t of having been improperly senl or of being un- true, will be held to be authorized in acting as upon sufficient, reasonable and probable cause, the letter or telegram constituting ARRESTING ON TELEGRAMS. 45 a sufficient cliarge fiori a thini person tliat an offender has been guilty of felony. No ('oubt it will be safer for the officer if the telegram be signed by some one in authority, as the Mayor, Police Magistrate, or an Alderman or other Justice of the Peace of the place from which it is sent. But even then the message may nut have been sent by such person, for there is no handwriting or any other means of identifying the message. It might be possible, liowever, to telegraph back to the })erson professing to send the communication, for the purpose of determining whether it really was or was not sent by the person supposed, and if the reply ap- peared to be satisfactory, the original message might then be acted on ; and whenever there is time to pursue this course it ia the course which ought to be taken ; but it cannot be adopted in all cases, for, as urgonc}' is necessary when crime is in question, and as the telegraph is resorted to only because urgency is neces- sary, the criminal may be beyond the reach of the Police while the correspondence is going on. If no time is allowed for com- municating, the telegram should be shewn to some others in authority for their advice as to whether it will be proper to act upon it or not; and if they advise it, it is most likely the Court or Judge woukl hold that the Constable in enforcing it had acted on reasonable and proljable cause. Yet it is not said that even this is absolutely necessary, although it is clearly prudent to do so, for the emergency may be so great that no time is permitted even for this reference; but in such case the' Constable must proceed most circumspectly, for fear of the consequences. While, there- fore, it may not be wholly unjustifiable to arrest upon the telegram of some unknown person, it is clear that the Constable may justly expose himself to very severe consequences unless he acts with great moderation and judgment. It may therefore be laid down : (1) That on the receipt of a telegram professing to be from some known, responsible, respectable person, whether concerned in the administration of justice or not, but more particularly if he be, the Constable may proceed to make the arrest. (2) On the receipt of a telegram from some unknown person, the Constable should not arrest without advising with some one 46 CONSTABLES' MANUAL. in authority as to how he should act. If he advise an arrest, the Constable may then make it. (3) If he have no time to advise, he must proceed, as before stated, most warily. (4) In no case, however, should a telegram be acted upon if it be possible to test its genuineness by communication with the person professing to have sent it. (5) In no case should a telegram or letter from the United States, or from any country beyond Canada, be acted upon for an offence committed beyond Canada, because the party complained of is not a criminal against our laws until a proper information has been laid, and a warrant issued here for his apprehension, pursuant to the 31 Yic. chap. 94, as amended by the 33 Vic. chap. 25, and the Imperial Act, 33 & 34 Vic. chap. 62, relating to Extradition. Wilson, 45, 46, 47, 48. In a case, however, in which it appeared at the trial that the plaintiff had committed a gross fraud in Detroit, in the TJnited States ; that the defendant, having received a telegram from a public officer there, arrested him in this Province, and took liim to the Police Station in London, and that after three days' deten- tion he was discharged, the offence not being within the Ashburton Treaty ; and where it further appeared that the defendant had been Chief of the Police in London, and afterwards appointed from year to year Codstable for the County— he had acted for the year in which the arrest was made, and there was some evidence of his having been sworn in, but his name was not upon the list of the Clerk of the Peace of those appointed for that year — the jury were told that, the defendant having no warrant and not being a Peace Officer at the time, tlie arrest was not strictly legal, and the plaintiff therefore entitled to recover ; but the jury, notwithstanding this direction, found for the defendant, and the Court refused to disturb the verdict. Rogers v. Van Valkenburgh^ 20 Q. B. (Ont.) 220. (6) The Constable is not justified in arresting on a telegram in cases of misdemeanor, the general rule being, as we have already seen, that a Constable cannot arrest without warrant for a mis- demeanor not committed in his view. WHAT 18 AN AEREST. 47 i Under the 32 & 33 Yic. chap. 30, s. 8, any Justice or Justices of the Peace may grant or issue any warrant to apprehend a person for an indictable offence, or any search warrant, on a Sunday as well as on any other day. The 29 Car. II. chap. 7, s. 6, provides in Eubstance that no war- rant or other process shall be served on the Lord's Day e::cept in cases of treason, felony or breach of the peace. Except in these cases, the service is declared to be void ; and the person or persons 80 serving or executing the same shall be as liable to the suit of the party aggrieved, and to answer damages to him for doing thereof, as if he or they had done the same without any writ, warrant or process at all. The exception in 29 Car. II. chap. 1. s. 6, that process may be executed on the Lord's Day in cases of treason, felony or breach of the peace, extends to all indictable offences, and is not restricted to treason, felony, and such misdemeanors as involve an actual breach of the peace. Rawlins v. Ellis, 10 Jur. 1039 ; 16 M. & W. 172. If the first arrest is illegal, a second arrest by the same prose- cutor will be illegal also. The party arresting a second time cannot make use of his own illegal prior arrest to sustain the otherwise valid second arrest, although another person, not con- nected with the prior illegal arrest, might do so. McGregor v. Scarlett, 7 P. R. (Ont.) 20 ; Hooper v. Lam, 3 Jur. N. S.'l026 ; Chafman v. Freston, 6 H. & N. 4G9 ; Re Eggington, 2 E. & B. 717. AS TO WHAT IS AN ARREST. An arrest may be effected by merely touching the prisoner, saying at the sanie time such words as " You are my prisoner," " I arrest you," &c. A Sheriff's Officer, in execution of a ca. sa., put his hand into the debtor's dwelling house by an opening in a window caused by a pane having been broken in the scuffle, but not by the officer, and touched the debtor, who was inside the house, and said, " You are my prisoner." He was unable then • to secure the person of the debtor, but he thereupon broke open the outer door of the house and seized the debtor. The Court held that the officer had acted legally, the arrest having been 48 constables' manual. effected by touching the debtor, and the subsequent breaking of the outer door being justifiable for the purpose of taking into custody the debtor so arrested. Sandon v. Jervis, E. B. & E. 935; 5 Jur. "n. S. 860. A Sheriff's Officer having a writ which had been issued against A., communicated that fact to him by saying, " I arrest you ; " upon wliich A. said, " Yery well, I will come to you immediately," and shortly afterwards made his escape, without having been touched by the officer. It was held that this was no arrest ; but if he had acquiesced, or afterwards gone with the ofHcer, it would have been sufficient to constitute an arrest. Mussen v. Liicas, 1 C. & P. 153 ; K & M. 26. But an actual touching of the body in not always necessary to constitute an arrest. Thus, if a Bailiff come into a room and tell the debtor who is there that he arrests him, and locks the door, that is an arrest without touching the body of the party, for he is then in the custody of the officer. Williams v. Jones, Ca. Temp. Hardwick, 301. And if a Constable tell a person given into his charge that he must go with him before a Magistrate, and such person in conse- quence goes quietly and without force, it is an arrest and impri- sunment. Wilson, 58 ; Ghinn v. Morris, 2 C. & F. 361 ; see also PoGock V. Moore, R. & M. 321 ; Berry v. Adarnson, 6 B. & 0. 528. A Deputy-Sheriff having a ca. sa. to arrest a party, went to his house with the writ in his possession for that purpose, lie told hitn of process, and being assured that a friend of his (the debtor's) who was then from home, would go his bail, he returned home, and d'd not insist on the debtor coming with him. Afterwards the Sheriff went again to the debtor's house and told him, without laying his hands upon him, that he must come to his (the Sherifi"'8) house, which he did, and remained there till discharged, but not under actual constraint. It was held, that under these facts there liad been no legal arrest of the debtor on the first visit of the Sheriff: that the merely insisting on the debtor going to the Sheriff's house on the second visit did not of itself constitute an arrest ; but that the debtor, in having gone to the Sheriff's house EXECUTION OF WAERANT8. 49 as desired, and having remained there till discharged, though with- out constraint, had been duly arrested. Mcintosh v. Demeray^ 5 Q. 13. (Ont.) 343. In an action ior malicious arrest, it was held that the arrest was not proved by shewing that the Bailiff to whom the warrant waa directed went to the plaintiff's house and told him at the door that he had a writ against him, but did not enter the house nor touch liim, and afterwards left him on his promise to put in bail the next day, which he did. Perrin v. Joyce^ 6 O. S. 300. A bailable capias having issued, the Deputy-Sheriff went to defendant and asked liim to find bail. They both then went in search of bail, and a bail bond was executed. This was held an arrest. Morse v. Teetzel, 1 P. R. (Ont.) 369. AS TO THE EXECUTION OF WARRANTS. When a warrant is put into the hands of a Constable to be exe- cuted, he should carefully peruse and endeavour to thoroughly understand its provisions. Where the warrant constitutes the sole autliority for the Constable's act, that authority should be strictly pursued, and sliould not be exceeded. If the warrant is found deficient in any particular, or if it wants a seal or signa- ture, or the name of the officer to execute it, it should be taken to the oftice from which it issued to have the defects remedied. The Constable should make a memorandum of the time of its receipt and other necessary particulars. The warrant should be executed with secrecy and dispatch, and after execution, the Con- stable should enter on the back the date of execution, and hand it over to the proper oflicer. . As to the time within which the warrant may be executed where the warrant specifies no particular time for brino-ino- the offender before a Justice, the warrant may be executed at any time, provided the Magistrate granting it so long live. As to the Justice before whom the Constable should bring the offender : this depends on the wording of the warrant. Where it is in the usual form, the Constable may bring the offender before any Justice having jurisdiction in the place where the warrant is issued. 6 60 CONSTABLES* MANUAL. The Constable should in the next place ascertain from the warrant the nature of the offence, whetlier felony, breach of the peace, or simple misdemeanor, as that must in a great measure regulate his future proceeding. He then sees if the party named or described in the warrant is personally known to him. If not, the Constable should find out what country the party is a native of, his personal appearance, manner, the dress he is supposed to wear, and any other peculiarity the individual maybe recognized by ; and whenever it can be done, it would be advisable for the Constable to bring with him some person able to point out the party ; for the ofiicer is not only bound to use his best exertions to make an arrest, but at his peril makes it, for should the wrong person be taken up, a Constable who acted unguardedly would be liable to an action. The Constable should, as soon as he possibly can, proceed to find out and arrest the defendant. Dalt. 169, p. 404r. An arrest may be made in the night as well as the day, but not on a Sunday, unless the offence charged includes a breach of tlie peace, or felony. See ante p. 47. The defendant should be brought without delay before the proper Magistrate, and it is the duty of the Magistrate to make such arrangements with the officer who is intrusted with the execution of the warrant that the case may be brought on to a hearing as speedily as possible after the arrest. To detain a party for an unreasonable time on any of the minor charges which Justices are empowered to determine, would be very im- proper: indeed, it would be both illegal and unjust. Before executing the warrant, the Constable should observe to whom it is directed. Where it is directed to the Constable by name, or to all or any of the Constables or Peace Officers in the County, i^c, any Constable for any place within the County may execute the warrant at any place within the jurisdiction for whlcli the Justice acted when he granted the warrant, notwith- standing the place within which such warrant is executed be not within the place for which he is Constable or Peace Officer. 32 & 33 Vic. chap. 30, s. 20 ; 32 & 33 Yic. chap. 31, s. 10. EXECUTION OF WARRANTS. dl In regard to the direction of the warrant, the rule, independ- ently of statutory enactments, is, that a warrant to a Peace Officer by name may be executed anywhere within the jurisdiction of the Justices granting it, but if to tlie officer by his name of office, he can only execute within the precincts of his office. R. v. Weir, 2 D. & R. 444. Though a warrant to a Peace Officer by his name of office gives him no authority out of the precincts of his jurisdiction, yet such authority may be expressly given on the face of the warrant ; and where a warrant is directed to all or any of the Constables within the limits of the Justices' jurisdiction, this will confer express authority to act anywhere within such limits. 32 & 33 Vic. chap. 30, 8. 20 ; 32 & 33 Vic. chap. 31, s. 10. See also Jones v. Ross, 3 Q. B. (Ont.) 328. There is no doubt that the statutes cited give express authority to execute the warrant anywhere within the Justices' jurisdiction, though beyond the place for which the Constable is appointed. Thus, if the warrant is specially directed to the Constable by name, or generally to all other Constables or Peace Officers of the Division, any person coming within this description may law- fully execute it, but where it is directed to the Constable of A., that is, the Constable of such Division, it cannot lawfully be executed by any other person. R. v. Sanders, L. R. 1 C. C. R. 75. The warrant, no matter how directed, does not authorize an arrest in any place for which the Justice granting it has not jurisdiction. Thus, if a warrant is directed by any Justice of a City to all Constables of the City, no one but a Constable of the City can execute it, and he cannot go beyond the City to do so. Hoye v. Bush, 1 M. & G. 775. Where a warrant is necessary to the arrest, the officer will not be justilied in arresting the real offender if the warrant does not give his proper name, or at all events the name which he is reputed to bear. Thus, where the defendant was arrested under a warrant describing him as " John Hoye," his real name being Richard Hoye, it was held that the arrest was not justified though he was really the person intended. Hoye v. Bush^ 1 M. & G. 776. 53 CONSTABLE^' MANUAL. A warrant directed a Constable "to arrest Hood, by whatsoever name or names he may bo called, being one of the sons of Samnel Hood." Jt appeared that Samuel Hood had four sons living together, but it also appeared from the surrounding circumstances that George Hood, the party taken, was the right person. Tiie Court held that the warrant ought to have stated some reason for omitting the Christian name, and to have supplied some particulars by which the individual might be distinguished from his brothers, and that not having done so it was bad, and gave no authority to the Constable to arrest George Hood. H. v. Hood.m.&'K. 281. The party's name, of course, must not bo inserted in the war- rant after it has been signed and sealed by the Magistrate, for that will avoid it altogether. Wilson, 50. The same result would follow if the warrant were directed to any particular Constable by name, and the name were struck out and another inserted instead. In such case, the warrant would be illegal and the arrest void. Ilousin v. Barrow^ 6 T. R. 122. A person who will not give his name may be described as " a person unknown, but who was personally brought before the jurors by the keeper of the prison ;" that is, he must be identified in some way, if not by name. See also R. v. Hood, 1 Mood. C. C. 281. Where the warrant is executed by some one assisting the Con- stable, the latter must be sufficiently near to be able to co-operate in the arrest. In one case, where a Constable had a warrant to arrest, and he gave it to his son to execute, and his son attempted to make the arrest, but at the distance of at least a quarter of a mile from his father, so that his father could not help him, it was held that the son was a wrongdoer, and had no authority to act under the warrant. li. v. Patience, 7 C. & P. 775. c-.t,: .,.^ From the foregoing cases, it will be seen that the Constable cannot execute the warrant at any place beyond the jurisdiction of the Magistrate issuing the warrant ; and where the warrant is directed to the Constable by his name of office, as " the Constable of the Township of A.," he cannot execute it beyond the limits of EXECUTION OF WAKRANT8. 68 the Township. However, &^ we have seen, wlien the warrant is directed generally to all or any of the Constables of the County for which the Magistrate acts, it may be executed anywhere within the jurisdiction of the Magistrate. There are certain cases in which the Magistrate has jurisdiction beyond the limits of his County, and of course in these cases the Constable may execute the warrant anywhere within the Magistrate's jurisdiction. These cases will now claim attention. If the offence is committed within the limits of the Justice's jurisdiction, his warrant will authorize an arrest anywhere within such limits (32 & 33 Vic. chap. 30, s. 19), provided the warrant is directed, in the usual form, to all or any of the Constables within such limits, or to any Constable by name and not by his name of office. In case of fresh pursuit, the offender may be apprehended at any place in the next adjoining Territorial Division, and within seven miles of the borders of the first mentioned Territorial Di- vision, without having the warrant backed. 32 ife 33 Vic, chap, 30, 8. 19 ; 32 & 33 Vic. chap. 31, s. 9 ; Clarke's Mag. Man. 23-34. In other cases the warrant may be backed so as to authorize the apprehension of the offender at any place in Canada, and beyond the jurisdiction of the Justice issuing the warrant. 32 & 33 Vic. chap. 30, ss. 19 & 23 ; 32 & 33 Vic. chap. 31, s. 11. If the person against whom tlio warrant is issued cannot be found in the County in which it has been backed, it may be again backed in the same manner in any other County, and so from County to County until the offender is apprehended ; and notwith- standing such backings of the warrant, the offender maybe after- wards apprehended thereon in the County in which it originally issued. When the offence is committed within the Justice's juris- diction, to authorize an arrest beyond such jurisdiction, the war- rant must be backed by a Justice having jurisdiction in the place where the offender is suspected to be. 32 & 33 Vic. chap. 30, s. 23 ; 32 & 33 Vic. chap. 31, s. 11. This endorsement authorizes the execution of the warrant by the person bringing it, and by all other persons to whom the warrant was originally directed, and by all Constables and other CONSTAULEB* MANUAL. Peace Officers of the Territorial Division where the warrant haa been endorsed. Ih. The following is the form of tho endorsement : Canada, Province of , District {or County, United Counties, or as the case may be,) Whereas good jircxif upon oatli hath tliis day been made before nie, one of Her Majesty's Justice* ' of the Peace in and for tlie said District (or County, United Counties, vr as the case may be,) of that the name of J. S. , to the within warrant subscribed, is of the handwriting of the Justice »)f tho Peace within mentioned, I do therefore liereby authorize W. T., who bringeth to me tliis wsixrant, and all other persijns to whom this war- rant was originally directed, or by whom it may bo lawfully executed, and also all Constables and other Peace Officers of the said District (or C(junty, United Counties, or as the case may be,) of to vixecuto the same within tho said last mentioned Disti-ict (or County, United Counties, or a* the case may he.) Given under ray hand this day of in the year of our Lord at in tho District (or County, &c. ,) aforesaid. J. S. The above endorsement, as we have seen, authorizes the execu- tion of the warrant bv any Constable for the place where it ia endorsed. AVhen warrants are sent from one County to another, as, for instance, from the County of Ontario to the County of York, the warrant Iiavint;; issued and the offence having been com- mitted in the former County, a Constable for the County of York should not execute the warrant until it is endorsed in the above form. And this remark applies to all warrants from other juris- dictions : they must be endorsed before action taken thereon. The warrant may be backed in the same manner in the case of offences punishable on summary conviction. {See 32 & 33 Yic. chap. 31, s. 11. The provision in the 32 & 33 Yic. chap. 30, s. 23, as to backing warrants, is as follows : If the person against whom any warrant has been issued can- not be found within the jurisdiction of the Justice or Justices by whom the same was issued, or if he escapes into or is supposed or is suspected to be in any place within Canada out of the EXECUTION OF WARRANTS. {fj( jurisdiction of the Judtico or Justicjs isBuing tlic warrant, any Justice of the Peace within the jurisdiction of wliotn the person 80 escapes, or in which he is or is suspected to ho, upon proof alone being made on oath or affirmation of the handwriting of the Justice who issued the same, without any security being given, shall make an endorsement on the warrant, signed with his name, authorizing tlie execution of the warrant within the juris- diction of the Justice making the endorsement, and such endorse- ment shall be sufficient authority to the person bringing such warrant, and tc all otlicr persons to whom the same was originally directed, and also to all Constables and other Peace Officers of the Territorial Division where the warrant lias been so endorsed, to execute the same in such other Territorial Division, and to carry the person against whom the warrant issued, when apprehended, before the Justice or Justices of the Peace who first issued the warrant, or before some other Justice or Justices of the Peace for the same Territorial Division, or before some Justice or Justices of the Territorial Division in which the offence mentioned in the warrant appears therein to have been committed. And if the pro- secutor or any of the witnesses for the prosecution be then in the Territorial Division where such person has been apprehended, the Constable or other person or persons who have apprehended him may, if so directed by the Justice backing tlie warrant, take him before the Justice who backed the warrant, or before some other Justice or Justices for the same Territorial Division or phice. 11). s. 24r. By the 32 & 33 Vic. chap. 29, ss. 8, 9, 10, 11, Magistrates lave in certain cases jurisdiction over offences not committed (rithin the ordinary local limits of their County. (1) Where a elony or misdemeanor is committed on the boundary of two or nore Districts, Counties, or places; or (2) within the distance of Dne mile of any such boundary ; or (3) in any place with respect to which it may be uncertain within which of two or more Dis- tricts, Counties or places it is situate ; or (4) when any felony or misdemeanor is begun in one District, County or place, and com- pleted in another, a Magistrate acting and having jurisdiction in any one of the said Districts, Counties or places, may issue his 56 constables' manual. warrant to apprehend the perpetrator of any sncli felony or mis- demeanor in the same manner as if it had hecn actually and wholly committed within the limits of the County to which the Magistrate's commission extends. The same rules apply (1) when any felony or misdemeanor is committed on any person, or on or in respect of any i)roperty in or upon any coach, waggon, cart or other carriage whatever employed in any journey ; or (2) is committed on any person, or on or in respect of any ]>roperty on board any vessel, boat or raft whatever employed in any voyage or journey upon any navigable river, canal or inland navigation. The Magistrate having juris- diction in any District, County or place, through any part whereof such coach, waggon, cart, carriage or vessel, boat or raft passed in the course of the journey or voyage during which such felony or misdemeanor was committed, may issue his warrant to appre- hend the offender in the same manner as if the offence had been actually committed in such District, County or place. Tiic same rules apply in all cases where the side, centre, bank or other part of any highway, or of any river, canal or navigation constitutes the boundary of any two Districts, Counties or places. Under the 31 Vic. chap. 72, s. 8, and the 32 & 33 Yic. chap. 17, s. 2, Magistrates having jurisdiction over the principal felony or any felonies committed in any District, County or place in which the act, by reason whereof a person has become an acces- sory, has been committed, have jurisdiction over the accessory. Under the 32 & 33 Yic. chap. 21, s. 112, where any person brings into Canada, or has in his possession therein any property stolen, embezzled, converted or obtained by fraud or false pre- tences in any other country, in such manner that the stealing, embezzling, converting or obtaining it in like manner in Canada would, by the laws of Canada, be a felony or misdemeanor, a Magistrate having jurisdiction in any District, County or place in Canada, into or in which he brings such property or has it in his possession, may issue his warrant for the arrest of the offender. See B. v. Hennessy, 35 Q. B. (Ont.) 603. And where a thief steals property in one County in the Dominion, and has it in his possession in any other County, a EXECUTION OF WARRANTS. 67 Magistrate in tlio latter County lias jurisdiction over In'm. So if a person receives property in one County in Canada which has been stolen in another, a Mae person whose goods had been stolen might have an pppor- tunity of collecting his witnesses and bring them to prove the felony, it was held that he was not justified in so doing. Wright V. Court, 4 B. & C. 596. If a Statute requires that the prisoner should be forthwith taken before a Justice, the person apprehending must not take him to his house, or to any other place before going to the Magistrate, under any pretext. Morris v. Wise, 2 F. & F. 51. Though the arrest be at night, or at any other time when it is not possible or reasonable to take the prisoner before a Magis- trate, it seems a Constable is justified in a case of treason or felony in taking the party out of his liouse to a Gaol or other place for safe custody, until he can take him before a Magistrate. Davis V. Russell, 5 Bing. 354. Where an arrest has been made without a warrant, the Con- table may in some cases take the party's word for his appearance before a Magistrate, and this is frequently done where the charge is for an assault of a trifling nature, and the defendant is of good repute, and there is no probability of his absconding. See Hardy V. Murphy, 1 Esp. 295 ; Burns' Jus. 305. A Constable may be justified in removing a person from a church for disturbing the congregation in time of divine service, although no part of such service was actually going on at the 79 constables' manual. time. Yet he has no right to detain such person in custody afterwards, for the purpose of taking. hin: before a Magistrate^ Williams v. Glenister, 4 D. & K. 217 ; 2 B. & C. 699. Under the 32 & 33 Yic. chap. 20, s. 37 (see ante p. 25), the party may be detained until lie can bo brought before a Justice of the Peace, and it would seem that under this Statute the party may be detained a reasonable time at all events. A Policeman on duty at a Police Station is justified in detain- iug a person brougiit there in charge and delivered to him by a Policeman, although he may have been illegally arrested, as, for instance, if he has been arrested without warrant upon suspicion of having been guilty of perjury. Bowditch v. Fosbermj, 19 L. J. Exch. 339. Should the arrest be made at night, the party may be confined in the Gaol, or in a Lock-up House or other secure place, till the following morning ; but then the Constable should at the earliest convenient hour bring the party before a Magistrate. He will be liable to an action if be does not, as would probably the party keeping the prisoner in custody in case of long detention. See also the 32 & 33 Yic. chap. 29, s. 6, ante p. 30. In Ontario, under " An Act respecting Municipal Institutions," Rev. Stat. (Ont.) chap. 174, s. 432, the Council of every County may establish and maintain a Lock-up House or Houses within the County, and may establish and provide for the salary or fees to be paid to the Constable tr be placed in charge of every such Lock-up House, and may direct the paj^ment of the salary out of the funds of the County. Every Lock-up House shall be placed in the charge of a Con- stable specially appointed for that purpose by the Magistrates of the County, at the General Sessions of the Peace therefor. Ih. B. 433. The Council of every City, Township, Town and Incorporated Village, may by by-law establish, maintain and regulate Lock-up Houses for the detention and imprisonment of persons sentenced to imprisonment for not more than ten days under any by-law of the Council j and of persons detained for examination on a charge EXECUTING SEARCH WARRANTS. 78 of having committed any offence; and of persons detained for transmission to any Common Gaol or House of Correction, either for trial or in the execution of any sentence ; and such Councils shall have all the powers conferred on County Councils m ralation to Lock-up Houses. Ih. s. 434. Any Justice of the Peace of the County may direct by warrant in writing, under his hand and seal, the confinement in a Lock-up House withip his County, for a period not exceeding two days, of any person charged on oath with a criminal offence, whom it may be necessary to detain until examined and either dismissed or fully committed for trial, to the Common Gaol, and until such person can be conveyed to such Gaol ; also the confinement in such Lock-up House, not exceeding twenty-four hours, of any per- son found in a public street or highway in a state of intoxication, or any person convicted of desecrating the Sabbath ; and gene- rally may commit to a Lock-up House, instead of the Common Gaol or other House of Correction, any person convicted on view of the Justi( , or summarily convicted before any Justice or Jus- tices of the Peace, of an""- offence cognizable by him or them, and liable to imprisonment therefor under any Statute or Municipal By-law. 11. s. 449 ; 29 & 30 Vio. chap. 51, s. 409. The expense of conveying any prisoner to and of keeping him in a Lock-up House shall be defrayed in the same manner as tho expense of conveying him to and keeping him in the Common Gaol of the County. Ih. s. 450. AS TO EXECUTING SEARCH WARRANTS, With respect to the direction of the warrant and the County or place wherein it may be executed, the rule is the same as in other warrants. In executing it the Constable must be careful strictly to pursue its directions. Under the ordinary form of .search warrant the Constable can enter only in the daytime. The same rules apply as to breaking open doors, &c., as in other cases of warrants. The Constable should bring with him materials for striking a light if necessary, and ho should take sufficient time to make a thorough search. 74 constables' manual. The owner of the goods must attend at the execution of the warrant, to shew them to the officer, who must see that they answer the description. See EnticTc v. Carrington, 19 St. Tr. 1067. The Constable should not take away any goods but those speci- fied in the warrant, unless they are indispensable in substantiating the charge of stealing the goods specified. Where a Consta-ble, having a warrant to search for certain specified goods alleged to have been stolen, found and took away those goods and certain others supposed to have been stolen but which were not mentioned in the warrant, and were not likely to be of use in substantiating the charge of stealing the goods men- tioned in the warrant, it was held that the Constable was liable to an action of trespass. Crozier v. Gundy, 6 B. & C. 232 ; 9 D. & R 224. The warrant requires the Constable to have "necessary and proper assistance" in its execution. Ho should therefore bring with him sufiicient assistance to secure the execution of tlie war- rant, and to watch outside to prevent the things being taken away wliile he is making a search within. Should the warrant be taken from him, he may use reasonable force to regain it, Thus, where Excise Ofiicers went with a search warrant, and at the desire of the party gave it him to peruse, when he refused to return it, the Court held that they had a right to take it from him, and even to coerce his person to obtain the possession of it, provided they used no more violence than was necessary. H. v. Milton, 3 C.*& P. 31 ; M. & M. 107. When the goods or any part of them are found, the Constable is to bring them and the person before the Magistrate, according to the direction of the warrant, to restore them to the party's possession if so directed after the examination by the Magistrate, or, if the party is committed, to keep them, if not deposited at the Magistrate's ofiice, in order to their being produced at the trial. The goods may be marked or otherwise be thoroughly examined by the Constable, that he may have no hesitation in afterwards identifying them. MONEY FOUND ON PRISONERS. 78 AS TO DISCHARGE BY CONSTABLE EXECUTING WAURANT OP DISTRESS. The 32 & 33 Vic. chap. 31, s. 83, provides that in all cases wliere a warrant of distress has issued against any person, and such person pays or tenders to the Constable having the execution of the same, the sum or sums in the warrant mentioned, together ' with the amount of the expenses of the distress up to the time of payment or tender, the Constable shall cease to execute the same. This section, however, does not authorize the Constable to receive payment and discharge the prisoner where the warrant is to imprison fur a certain time, as for thirty days absolutely, and not unless fine and costs, &c., be sooner paid. Arnott v. Braclly, 23 C. P. (Out.) 1. ^ Constables would therefore do well to look at the terms of the warrant before receiving the amount and discharging the prisoner. If the imprisonment is for a certain time, and if the warrant omits the words " unless fine and costs be sooner paid," or words of similar import, a Constable cannot abridge the time of im- Bonment on receiving the money. AS TO MONEY FOUND ON PRISONERS. A Constable who apprehends a prisoner has no right to take away from him any money which he has about him, unless it is in some way connected with the ofience with which he is charged, as he tliereby deprives him of the means of making iiis defence. B. V. O'DonnelU 7 C. & P. 138 ; R. v. Kinsey, 7 C. & P. 447 ; R. V. Jones, G C. & P. 343. Where therefore a Police Officer, who apprehended a person on a charge of rape, took from him a watch and other articles which had nothing whatever to do with the charge, the Court directed the property to be given up to the prisoner, saying that it ought not to have been taken from him. R. v. Kinsey, siopra. Property stolen, when found on the prisoner, should be taken from him ; so should the proceeds of any property feloniously obtained by the prisoner. T6 constables' manual. Where a prisoner charged with uttering a forged note applied to the Judge to order twenty-eight sovereigns found on him when he was apprehended to be restored to him, the Court, having reasonable grounds to believe that these twenty-eight sovereigns were the proceeds obtained from uttering the forged note, refused the order, R. v. Burgiss, 7 C. & P. 488. If a person taken on a charge of stealing a horse, have the horse in his possession when he is apprehended, any money found upon him ought not to be taken from liim, as it has no connection with the charge, nor can it be the proceeds of the theft, the horse Btill being in the prisoner's possession. E. v. Jones, 6 C. & P. 343. A Constable should not search a prisoner before taking him to the Station or Lock-up House ; but after he is taken to the Station the search may be made in view of the officer on duty. Any dangerous weapon should then be removed, and in cases of rob- bery, larceny, or receiving stolen goods, the Constable sliould mark distinctly any property taken from the prisoner, so as to be able to identify it at any future time. The ndvisal>ility of deferring any search until the Constable has his prisoner in the presence of some one who will be able to corroborate the Constable's statement as to the articles taken fr^in the prisoner, will be apparent when it is remembered that the prisoner might afterwards set up an unfounded claim for articles never taken by the Constable. In England, the 2 & 3 Yic. chap. 71, s. 29, provided that if any goods or money charged to have been stolen were in the custody of any Constable by virtue of any warrant of a Justice, and the person charged with stealing the same could not be found, or had been tried and acquitted or tried and convicted, it should be law- ful for any Magistrate to make an order for the delivery of such goods or money to the person appearing to be the rightful owner thereof. The plaintiff having been indicted for stealing goods and acquitted, a Constable, within a reasonable time after coming into possession thereof, applied to a Magistrate under the Act to make an order with respect to the goods. The Magistrate adjourned OBTAINING CONFESSIONS. 77 « the hearing to a future day. After the application, and before the day of hearing arrived, the plaintiff brought an action against the Constable to recover the goods. It was held that the Con- stable was protected by the Act, and that the action could not be maintained. Bullock v. Dunlojp^ L. E. 2 Ex. D. 43. AS TO THE DUTIES OF CONSTABLES IN OBTAINING CONFESSIONS. The general rule is that the confession of a prisoner, in order to be admissible against him, must be free and voluntary; and it is clear that if a promise or threat be made by any one having authority over the prisoner in connection with the prosecution, as, for instance, by the prosecutor, the Constable, or other oflScer having him in custody, a Magistrate, or the like, tlie confession will be rejected as not being voluntary ; and the same rule will perhaps prevail though the inducement was not actually offered by the person in authority, if it were held out by any one in hia presence, and he by his silence has sanctioned its being made. Taylor's Ev. 6th ed. 778-9. Though an inducement has been held out by an officer, a prose- cutor, or the like, and though a confession has been made in con- sequence of such inducement, still if the prisoner be subsequently warned by a person in equal or superior autliority that what he may say will be evidence against himself, or that a confession will be of no benefit to him, or if he be simply cautioned by the Magistrate not to say anything against himself, any admission of guilt afterwards made will be received as a voluntary confession. 75.783. In order to exclude a confession, the inducement, whether it assume the shape of a promise, a threat, or mere advice, must have reference to the prisoner's escape from the criminal charge against him. Ih. 783-4. But if no inducement has been held out relating to the charge, it matters not in lohat way the confession has been obtained ; for whether it were induced by a solemn promise of secrecy, even confirmed by an oath, or by reason of the prisoner having been drunken, or even by any deception practised upon him, or false 78 constables' manual. representation made to hiinfor that purpose, it will be equally admissible, however much the mode of obtaining it may be open to censure, or may render tlie statement itself liable to suspicion. Much less will a confession be rejected merely because it hns been elicited by questions put to the prisoner, whether by a Magistrate, officer, or private person ; and the form of the question is imma- terial, even though it assumes the prisoner's guilt. So what the accused has been overheard muttering to himself, or saying to his wife or to any person in confidence, will be receivable in evi- dence. Ih. 7S5-6. A Constable, therefore, while a prisoner is in his custody, should allow the prisoner full liberty to act and judge for himself, and should not take any measures to endeavour to extort a confession or statement. It is said the Police should not endeavour to obtain a character for activity and zeal by harassing and oppressing un- fortunate prisoners with the view of wringing from them a reluc- tant confession. On the other hand, the Constable should not tell the prisoner not to say anything at all. Nor is the Constable to lead a prisoner to say anything ; but if a prisoner chooses to say something, it is the duty of the Constable to hear what it is he has to say. R. v. Priest, 2 Cox C. C. 378. The proper course for the Constable is to caution the prisoner that any confession he makes will be admissible against him on his trial, but can be of no service to him ; and it is not necessary or proper that the Constable should do or say more than tliis. He should certainly not dissuade the prisoner who wishes to confess not to do so, for after telling the prisoner he need not say any- thing, and cautioning hira as above stated, the prisoner should be left to act and judge for himself. Wilson, 59, 60; see B. v. Walker, 8 C. & r. G21. The practice of questioning prisoners by Policemen, and thus extracting confessions from them, though it does not render the evidence so obtained inadmissible, is one which is strongly repre- hensible, and which ought not to be permitted. IL v. MicJc, 3 F. & F. 822. ESOArES. • 79 AS TO THE rJGHT TO RECOVER REWARDS. A Constable giving information which leads to the conviction of a felon may recover on a promise to give him a reward there- for, although it is the duty of the Constable to give such informa- tion. Thus, where A. offered a reward to whoever would give Buch information as would lead to the conviction of a felon, and a Constable and Peace Officer of the District where the felony was committed gave sucii information, it was held that his having given the information was a good consideration for a promise by A. to pay the reward to him. England v. Davidson^ 11 A. & E. 856. A Police Constable apprehended a boy (in Bedfordshire) having in his possession a horse and a gig under circumstances of suspi- cion, and discovering that the boy had absconded with them from "Woolwich, gave notice to his superintendent, who within a reason- able time gave notice to the boy's master. After the boy's appre- hension, but before the master had received notice thereof, the latter had issued an advertisement offering a reward of £10 to any one who would give such information as would lead to the recovery of the property and the apprehension of the thief. It was held, that a plea charging the Police Constable with a breach of duty, in neglecting to inform the master of the boy's appre- hension until after the issuing of the advertisement, was no answer to an action by the Constable for the reward. Neville v. Kelly^ 12 C. B. N. S. 740; 32 L. J. C. P. 118. AS TO ESCAPES. Constables or Peace Officers who, after an arrest, negligently allow a prisoner to escape, are punishable with fine. If they volun- tarily permit it, they are deemed guilty of the same offence, and are liable to the same punishment as the prisoner who escapes from their custody, and this whether the latter has been committed to Gaol or is only under bare arrest. But the officer cannot be thus punished for a felony until after the original offender has been convicted. Before the conviction, however, he may be fined and imprisoned as for a misdemeanor. The allowing the escape is punishable criminally only if the original imprisonment were for some criminal matter. 80 constables' manual. Under The Penitentiary Act of 1875, 38 Vic. chap. 44, s. 30, keepers in a Penitentiary who carelessly allow any prisoner to escape are guilty of a misdemeanor. REFUSING TO AID CONSTABLES, To prevent the execution of lawful process is at all times an offence, but more especially so when the object is to prevent the arrest of a criminal. It has been held that the party opposing Buch an arrest becomes tliereby particeps criminis, that is, an accessory in felony, otherwise a principal. Not only positively obstructing an oflEicer, but also refusing to aid him in the execution of his duty in order to preserve the peace, is a crime. The latter offence is a misdemeanor at common law. See I^. v. Brown, 0. & M. 314. In the Province of New Brunswick, under the 27 Vic. chap. 8 (Con. Stat. p. 1095-6), Constables are empowered, whenever it is necessary by reason of any wilful resistance to or unlawful obstruc- tion of such Constables acting in tlie due performance of their duty, to require any male person there present or near at hand, and being over sixteen and under sixty years of age, to aid and assist, by physical force if required, such Constables in the execu- tion of their duty. A penalty of not more than five pounds is imposed on the person refusing assistance. Under the Statute of Canada 32 & 33 Vic. chap. 20, s. 39, whosoever assaults any person with intent to commit felony; or assaults, resists or wilfully obstructs any Eevenue or Peace Officer in the due execution of his duty, or any person acting in aid of Buch officer ; or assaults any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, is guilty of a misdemeanor, and shall be liable to be imprisoned in any Gaol or place of confinement other than a Penitentiary for any term less than two years, with or without hard labour. If a warrant of commitment issued by a Justice of the Peace is good on its face, and the Magistrate had jurisdiction in the case, it is a justification to the Constable to whom it is given to be executed, as he is bound to execute it at his peril, and a person REFUSING TO AID CONSTABLES. 81 resisting him is guilty of an assault under this section. R. v. Davis, 8 Cox. C. 0. 486 ; 30 L. J. M. 0. 159 ; R. v. O'Leary, 3 Pugsley, 264. Where the warrant is based on a conviction for an unlawful assault, it is not necessary, in order to make the warrant legal and a justification to the Constable, that it should be stated in the conviction and warrant, that the complainant had requested the Magistrate to proceed summarily. Ih. Under section 38 of the Statute referred to, assaulting an officer engaged in preserving wreck, &c., is a misdemeanor, and under section 17, whosoever unlawfully and maliciously, by any means whatsoever, wounds or causes any grievous bodily harm to any person, or shoots at f.ny person, or by drawing a trigger, or in any other manner attempts to discharge any kind of loaded arras at any person with intent, in any of the cases aforesaid, to maim, disfigure or disable any person, or to do some other grievous bodily harm to any person, or with the intent to resist or prevent the lawful apprehension or detainer of any person, is guilty of felony. An execution issued by a Justice of the Peace is sufficient if it substantially follows the Form K in the Schedule to the Rev. Stat. (N.B,) chap. 137 ; and any person resisting a Constable in executing it, is liable to an indictment. Ji. v. McDonald^ 4 Allen, 440. Persons acting in aid of the Constable are within the protection of the law, provided the Constable is sufiiciently near to be able to render assistance in the execution of the warrant. (See ante p. 52). Thus, where an otFeuce was committed in the County of G., and warrants were issued for the arrest of the guilty parties, persons from another County who came to assist the Constables of the County of G. in making arrest, were held entitled to the same protection as the Constables. E. v. Chasson^ 3 Pugsley, 546. As we have already seen, persons called upon to aid a Constable in the execution of his duty are bound to do so. (See ante^ p. 22.) And it may be observed that in the case of riots express power is given to a Constable to command the assistance of all Her Majesty's subjects of age and ability. See 31 Vic, chap. 70, s. 4. 7 82 constables' manual. Refusing to aid and assist a Constable in tlie execution of hia duty in order to preserve the peace, is an indictable misdemeanor Ht common law. In order to support sucb indictment, it must be proved tbat tbc Constable saw a breach of the peace committed, that there was a reasonable necessity for callitii; upon the defend- ant for his assistance, and that when duly called on to do so the defendant, without any physical impossibility or lawful excuse, refused to do so; and it is no defence that the single aid of the defendant could have been of no avail. li. v. Brown^ C. & M. 314. An indictment for refusing to aid a Constable in the execution of hia duty, and to prevent an assault made upon him by persons in his custody with intent to resist their lawful apprehension, need not shew that the apprehension was lawful, nor aver that the refusal was on the same day and year as the assault, or that the assault which the defendant refused to prevent was the same aa that which the priboners made upon the Constable ; neither is it any objection that the assault is alleged to have been made with intent to resist their lawful apprehension by persons already in custody. R. V. Sherloch, L. R. 1 C. C. R. 20. IJomicide by an officer in the execution of his duty is justifiable in the following cases : (1) When the officer or his assistant in the due execution of hia office, whether in a civil or criminal case, kills one who is resist- ing his arrest or attempt at arrest. (2) "When the prisoners in Gaol, cr going to Gaol, assault the Gaoler or ofljicer, and he in his defence, to prevent an escape, killa any of them. (3) When an officer having legal authority to arrest attempts to do so, and the other flies and is killed in the pursuit. But here the ground of the arrest must either be a felony or the inflic- tion of a dangerous wound. (4) When an officer, in endeavouring to disperse the mob in a riot or rebellious assembly, kills one or more of them, he not being able otherwise to suppress the riot. In this case the homicide is justifiable both at common law and under the Riot Act. 31 Yic. chap. 70, 8. 5. '•;:!> • . , *• HOMICIDE IN EXECUTION OF DDTT. 83 Tn all these cases, liowevcr, it must bo shewn chat the killing was apparently a necessity. But it is not difli.'.ult to instance cases in wliicli the officer would bo i^nilty — [a) Of murder. For example: if tiie killing in pursuit as above were in case of one charged with a misdemeanor only, or of one required merely on a civil suit. TIius, it was held that a Constable was not justified in shooting at a man whom he had seen stealing wood growing in a copse (which, if a first offence, is only a misdemeanor), although the Constable had no means of arresting the tnan without firing; and although the stealing the wood in the particular instants amounted to felony by reason of the man having been previously convicted several times for similar ofl^ences, these convictions being unknown to the Constable at the time. li. v. Dadson^ T. & M. 385 ; 2 Den. C. C. 35 ; 20 L. J. M. C. 57. {h) Of rnandaughter. For example : if the killing in case of one so charged with a mis- demeanor were occasioned by means not likely to kill, as by tripping up the fugitive's heels. On the other hand, if a man kill an officer of justice, either civil or criminal, such as a Bailiff, Constable, Watchman, &c., in the legal execution of his duty, or any person acting in aid of him, knowing his authority, or the intention with which he interposes, the law will imply malice, and the offender will be guilty of murder; and the officer and persons acting in aid of him enjoy tliis protection going to the place where the arrest is to be made, remaining at such place, and returning therefrom. Three things are to be attended to in matters of this kind — the legality of the deceased's authority, the legality of the manner in which he executed it, and the defendant's knowledge of that authority; for if an officer be killed in attempting to execute a writ or war- rant invalid on the face of it, or against a wrong person, or out of the District in which alone it could legally be executed, or if the offender had no knowledge of the officer's business, the killing will be manslaughter only. AS TO THE LEGALITY OF THE AUTHORITY. If the warrant is illegal and void upon the face of it, or issued with a blank in it and the blank afterwards filled up (see R. v. Wcvrwick, 8 T. R, 454, ante p. 52), or issued with an insufficient 84 constables' manual. description of the defendant, as for instance if it were to take the son of J. S. (lb.), or if it be attempted to be executed against B. instead of C, the killing would be manslaughter only. In the case of process out of an inferior court, as the County Court, the production of a warrant good upon the face of it, and appearing to be issued in a case in which the Court had jurisdiction, is suffi- cient to justify an arrest under it, and render the party, if he resist the arrest, liable to an indictment for an assault upon the officer. H V. Davis, L. & C. 64. But if the writ were a nullity on the face of it, or if the warrant upon it were attempted to be executed by any other than the officer to wh.ai it was directed (the officer himself not being present, or at least acting in the arrest — see Cowp. 65, ante p. 52), the killing would be manslaughter only. If an innocent person be indicted tor a felony, and an attempt be made to arrest him for it without warrant, and he resist and kill the party attempting to arrest him, if the party attempting the arrest were a Constable, the killing is murder ; if a private person, manslaughter; because the Constable has authority by law to arrest in such a case, but a private person has not ; and the same in all cases where a person is arrested or attempted to be arrested upon a reasonable suspicion of felony. See Samuel v. Payne, Doug. 359. So if a man actually commit a felony, and another in whose presence he committed it attempted to arrest him for it, and he resisted and killed ; or if a person present at any ajQPray interfere for the purpose of restraining the otfenders and keeping the peace, and be killed ; or if a person present when another attempts to commit a treason or felony, lay hold of him in order to prevent him, and be killed: the killing in these cases would be murder, whether the person arresting or interfering, &c., be a Constable or not, f-\' either has power to arrest or interfere, &c., in such a case. li. V. Hunt, 1 Mood. 0. 0. 93 ; i?. v. Gurran, 3 C. «fe P. 397 ; R. V. Price, 8 C. & P. 282 ; R. v. Wdr, 1 B. & C. 261. So where a man seen attempting to commit a felony, on fresh pursuit kills his pursuer, it is as much murder as if the party were killed while attempting to take the defondant in the act. R. v. Howarthy 1 Mood. 0. 0. 207. But where an aflfray which hM / HOMIOroE IN EXECUTION OF DUTY. 85 taken place out of the Constable's view is over, and there is no continued pursuit, the Constable has no right to arrest the affrayer unless there is an immediate danger of the affray being renewed. E. V. Walker, Y>G2,T&. 358; Arch. Cr. Pldg. 640-1-2. If a person be taken before a Magistrate for an assault, and, whilst the warrant is being made up for his commitment, escape, a Constable may, by verbal directions from the Magistrate, pursue and apprehend him ; and if in so doing the Constable is killed, it is murder. R. v. Williams^ 1 Mood. C. C. 387. AS TO THE LEGALITY OF THE MANNER IN WHICH THE AUTHORITY IS EXECUTED. If a Constable attempt an arrest in a place where he has no jurisdiction, and be resisted and killed, it is manslaughter only, for he has no authority in such case ; so if an officer were to attempt an arrest on a Sunday, unless for treason, felony or breach of the peace (see ante p. 47), and were resisted and killed, it would be manslaughter only. - AS TO THE DEFENDANT'S KNOWLEDGE OF THE DECEASED'S . AUTHORITY OR INTENTION. When any officer is, in the legal execution of his duty, endeavour- ing to suppress an affray or apprehend a felon, and is resisted and killed, if it appear that the slayer knew the officer's business, either expressly from the deceased or impliedly from circumstances, the killing is murder ; if it appear that he was ignorant in this respect, it is manslaughter only. Where the Constable shews the warrant, or where it appears that he is known to the defendant to be an oflScer, as for instance where the defendant said, " Stand off, I know you well enough ; come at your peril ;" if after this the officer be killed, it will be murder. If a Constable command the peace or shew his staff of office, this it seems is a sufficient intimation of his authority ; and in such case it is not necessary to prove the deceased's appointment as Constable; proof that he was accustomed to act as Constable is sufficient. In all cases, however, above stated to be manslaughter only, if there be evidence of express malice in the party killing, the homicide will he murder. Arch. Cr. Pldg. 644-5-6. 86 constables' manual. AS TO THE LIABILITY TO ACTIONS AND THE PEOTECTION OP CONSTABLES. The necessity of knowing who should issne the warrant is appa- rent when it is considered that the warrant is only of validity — (1) When it is issued by one who holds such an office as confers upon him the authority to do so. (2) When such person has jurisdiction over the offence. (3) When he has power to order it to be executed in the par- ticular place. First, then, as to the officer or court issuing it. The rule of law is, that where the Court or Justice has juria- diction over the offence, cause of action or complaint, and proceeds erroneously, the officer who executed the warrant or process will be protected from the consequences of the arrest ; but when the Court or Justice has no jurisdiction at all, the officer executing the process, and all parties concerned in it, are liable for the con- sequences. Wilson, 49 ; Gossett v. Howard, 10 Q. B. 359. ' An action of trespass cannot be maintained against an officer who executes a writ issued upon a judgment rendered by an infe- rior court in a matter over which they have jurisdiction. Gondii V, Langlois, Stuart, 142. The court would not in such case be responsible; and where the officer executing the writ of an inferior court is sought to be made liable, the want of jurisdiction in the court from which it issued must be apparent on the face of the writ itself, and unless it be so the officer cannot be considered as a trespasser. Ih. If the court has jurisdiction but proceeds erro- neously or irregularly, it seems the officer would not be liable ; but if the court or Magistrate has not jurisdiction, the officer would be liable. See Ovens v. Taylor, 19 C. P. (0?it.) 49 ; Graham v. Smart, 18 Q. B. (Ont.) 485 ; Andrews v. Morris, 1 Q. B. 16 ; Clarke's Mag. Man. 226 et seq. But Justices cannot give them- selves jurisdiction by finding that as a fact which is not a fact, and their warrant in such case will be no protection to the officer who acts under it. The Ilaidie, 10 L. C. R. 101. PROTEOTION FROM ACTTONE. 87 In the Province of New Brunswick it has been held, in accord- anpe with these principles, that no action will lie against a Constable for executing a warrant, how^ever defective it may be, provided the Magistrate issuing the warrant has jurisdiction and the Constable was bound to obey it. McGregor v. Patterson^ 1 Oldright, 211, 231-2. - - '. -rir.r The superior courts are presumed to have jurisdiction unless the contrary appear on the face of the process, while Magistrates are not presumed to have jurisdiction at all unless their jurisdic- tion appear on the face of the warrant. Peacock v. Bell^ 1 Saund. 74. - By 24 Geo. II. chap 44, s. 6, no action shall be brought against any Constable, Ilead-borougli, or other officer, or against any per- son or persons acting by his order and in his aid, for anything done in obedience to any warrant under the hand or seal of any Justice of the Peace, until demand hath been made or left at the usual place of his abode by the party or parties intending to bring such action, or by his, her or their attorney or agent, in writing, signed by the party demanding the same, of the perusal and copy of such warrant, and the same hath been refused or neglected for the space of six day after such demand ; and in case, after such demand and compliance therewith by shewing the said warrant to and permitting a copy to be taken thereof by the party demanding the same, any action shall be brought against such Constable, Head-borough, or other officer, or against such person acting in his aid, for any sucli cause as aforesaid, without making the Justice or Justices who signed or sealed the warrant defend- ant, then, on producing or proving such warrant at the trial of such action, the Jury shall give their verdict for the defendant or defendants, notwithstanding any defect of jurisdiction in such Justice or Justices. And if such action be brought jointly against Buch Justice or Justices and also against such Constable, Head- borough, or other officer or person or persons acting in his or their aid as aforesaid, then, on proof of such warrant, the Jury shall find for such Constable, Head-borough, or other officer, and for Buch person and persons so acting as aforesaid, notwithstanding such defect of jurisdiction as aforesaid ; and if the verdict shall 88 constables' manual. , be given against the Justice or Justices in such case, the plaintiff or plaintiffs shall recover his, her or their costs against him or them, to be taxed in such manner by the proper officer as to in- clude such costs as such plaintiff or plaintiffs are liable to pay to such defendant or defendants for whom such verdict shall be found as aforesaid. In the Province of New Brunswick there is a provision sub- stantially the same as the above. See Con. Stat. (N.B.) chap. 91. The object of this Statute was to relieve the Constable alto- gether from responsibility when he has a warrant and acts in obedience to it, and shows and gives a copy of it when demanded, and to put the Magistrate in his place. Jonea v. Vaughan^ 5 East, 448. ./:'-■.,'•; Where therefore the Constable has acted under the warrant, and in obedience to it, he cannot be sued, but only the Magistrate who has exceeded his jurisdiction, provided the Constable give a copy of his warrant pursuant to the Statute. Before this the Constable was liable to be sued without any protection for executing the warrant, and to be indicted (which he still is) if he did not. Under the Statute, if the Constable (1) Have no warrant. Postlethwaite v. Gibson, 3 Esp. 26. (2) Or if he do not act in obedience to it. Bell v. Oakley^ 2 M. & S. 259 ; Crozier v. Cundy, 6 B. & C. 232. (3) Or if he refuse or neglect to shew it, and to furnish a copy of it when demanded. (4) Or if he arrest the wrong person. Money v. Leach, 1 W. Bl. 563 ; 3 Burr. 1742. (5) Or even if he give such perusal and copy ; but there is no remedy against the Magistrate; the Constable will himself be liable. Wilson, 61. The object of the Statute in making a demand of the war- rant necessary is that the Justice may be joined as defendant; therefore it is unnecessury to demand a perusal and copy of the warrant, when there is no remedy against the Magistrate. Cotton ▼. K'ldwell, 2 N. & M. 399 ; Sturch v. Clarke, 4 B. & Ad. 113 ; 1 N. & M. 671. PROTECTION FROM A0TI0N8. .^ 89 So a Constable who delivers a copy of his warrant to the party aggrieved cannot thereby discharge himself, unless the party has a right of action (supposing the warrant illegal) against the Magistrate under whom he acts. Sly v. Stevenson^ 2 C. & P. 464. ..'■' ■ ■^■-L. '--:.■ ■■■:■' -■■"^ - ■•' ■ ■ ■^^-'rV'-'.x.::.:^-': A Constable having a warrant authorizing the seizure of cer- tain specified goods alleged to have been stolen, seized those goods and others not specified in the warrant. The latter goods were not likely to furnish evidence of the identity of the former, and it was held that he was liable to an action of trespass, though a copy of the warrant had not been demanded, for it was clear that the Magistrate could not in any way be liable for the wilfully wrong- ful act of the Constable. Crosier v. Cimdy, 9 D. & R. 224 ; 6 B. & C. 232. In an action by A. against B., a Constable, for false imprison- ment, B. cannot defend himself under a Magistrate's warrant against C, although A. was charged with felony before the Magis- trate, and was the person against whom the warrant was intended to issue ; and a demand of a perusal and copy of the warrant is in such case unnecessary, for the Magistrate could not be answer- able in this case for the Constable's taking the wrong person. JSoye V. Bush, 1 M. & G. 775. A Constable is bound to give a copy of his warrant when demanded, and the fact of his having lodged the warrant with the Gaoler to whom he has delivered the prisoner will not excuse him. He has still power to procure a copy within six days. As to giving a perusal of the warrant, if the party accept a copy and make no further demand for a perusal of the original, he may be held to have waived it. Where neither copy nor perusal is given, the Constable stands in no better position than the convicting Magistrate, and cannot justify under the warrant, but must justify under the conviction. Arnott v. Bradly, 23 0. P. (Ont.) 1 ; Atkins v. Kilby, 11 A. & E. 777 ; Jones v. Vaughan, 6 East, 445. A Constable who had taken a party to Gaol under a Magis- trate's warrant, was called upon for a copy of the warrant and 90 constables' manual. perusal of the original. The Constable gave the party a copy, but was unable to grant a perusal of. the original, because it wat retained by the Gaoler for his own protection. The party, on information of this circumstance, made no objection to its non- production ; and it was held that he had dispensed with the production of the original. Atkins v. EUhy^ 11 A. & E. 777. "Where a party obtained a copy of the warrant previously to a demand, it was held that the Constable was not thereby excused from complying with the demand. Clark v. Woods^ 2 Exch. 395. Where parties, in order to levy a poor rate under a warrant of distress granted by two Magistrates, broke and entered the house and broke the windows, it was held that they might be sued with- out a previous demand of the perusal and copy of the warrant. Bell V. Oakley, 3 M. & S. 259. . .,. If an officer seizes goods in obedience to the warrant of a Magis- trate, whether that warrant is legal or not,' he cannot be sued without a previous demand of a copy and perusal of the warrant. Price V. Messenger, 2 B. & P. 158 ; 3 Esp. 96. If the warrant is to seize stolen goods, and the officer seizes goods wliich turn out not to have been stolen, he is still within the protection of the Statute. Ih. If a Constable takes the goods of B. under a vvarrant command- ing him to take the goods of A., no previous demand of a copy of the warrant need be made, as the Constable must act most strictly in obedience to his warrant. Patton v. Williams, 3 B. & A. 330. A Constable justified the assault and imprisonment of the plaintiff under a Magistrate's warrant of commitment. It was objected to this warrant that it erroneously recited that the plain- tiff was then present to hear the complaint in another County, and that on the endorsement of it for execution by a Magistrate of the County where the plaintiff was, it did not appear that tlie handwriting of the committing Magistrate had been proved according to 24 Geo. II. chap. 55, s. 1. It was held that if these objections were tenable, they shewed defect of jurisdiction in the Magistrates, but did not deprive the Constable of the protection given him by the warrant. Atkins v. Kilby, 4 P. & D. 145 ; 11 A. & E. 777. \ PEOTECnON FKOM ACTIONS. W A demand of the warrant need not specify any time, and if a difierent time is mentioned than that allowed by the Statute, it will not vitiate the demand. Collins v. Rose^ 5 M. & W. 194. Where a demand for the perusal of a copy of a Magistrate's warrant required the perusal and copy to be given within three davs, it was held, that this was a sufficient demand to entitle the V 7 7 party to sue, although the Statute says that no action shall be brouglit until the perusal and copy shall have been refused for six days after demand. Ih ■.,-,■ ,, , ., A Constable executing the warrant of a Justice, and sued without the Magistrate, is within the protection of the Statute, and entitled to a verdict on proof of such warrant ; having first complied with the plaintiff's demand of a perusal and copy of the warrant, and before the action brouglit, though not within six days after such demand, as the Act directs {Jones v. Vaughan^ 5 East, 445) ; so that if the Constable, even after the six days, give the perusal and copy, he cannot be sued if no action has been brought against him in the meantime. .; • • If p Constable executes a warrant of a Judge of the Queen's Bench not directed to him by name, under 5 Geo. lY. chap. 18, e. 6, out of his own District, and he is sued, no demand need be made of a perusal and copy of the warrant. Oladwell v. Blake^ IC. M. &R 636. Where Magistrates without authority order the suspension of the execution of a distress warrant duly issued, and the officer afterwards executes such warrant, he is entitled, before action brought for the taking under such warrant, to a demand of a copy and perusal of the warrant. Barrens v. Luscomhe, 5 N. & M. 330; 3 A. &E. 589. '"'' Constables acting without warrants are not within the Statute. Postlethwaite v. Gibson., 3 Esp. 226. A Gaoler receiving and detaining a person unde'* the warrant of a Magistrate is entitled to the protection of the Statute. Butt V. Newman, Gow. 97. The proof by the plaintiff of an admission by a Constable, sued in trespass with Justices, that a paper produced at the trial was / ■ 92 constables' manual. a copy of the warrant under which he acted, is not sufficient evidence as against the Justices to entitle the Constable to an acquittal under the 24 Geo. II. chap. 44, s. 6. Kalar v. CarnwaU, 8 Q. B. (Ont.) 168. The Statute does not apply to actions of replevin. Gay v. Mathews, 4 B. & S. 425. AS TO THE LIMITATION OF ACTIONS AOAINST CONSTABLES. Any action against a Constable for anything purporting to be done in pursuance of any Act of the Parliament of Canada relating to criminal law, shall, unless otherwise provided for, be laid and tried in the District, County or place where the fact was committed, and must be commenced within six months next after the fact committed, and not otherwise. 32 & 33 Vic. chap. 29, 8. 130-1. ,_., , . . . ^,..; ..■;,,,,;.^,.:'. The 24 Geo. II. chap. 44, s. 8, also provides that no action shall be brought against any Constable for anything done in the execution of his office, unless commenced within six calendar months after the act committed. See in New Brunswick the Con. Stat. chap. 91, s. 3. The word " month " in the Canadian Statute means a calendar month. 31 Vic. chap. 1, s. 7, fourteeuthly. The day on which the act was done is not to be included in the six months, and therefore where a person committed by a Justice was discharged out of custody on the 14th December, and he commenced his action on the 14th June, it was holden that the action was commenced in time. Hardy v. Ryle, 9 B. & C. 603. Where the cause of action is a continued one by imprisonment, the action may be brought within six calendar months after the last day of the imprisonment {Ih. Massey v. Johnson, 12 East, 67), provided that be within six months after the service of notice of action. Watson v. Fournier, 14 East, 491. The Statutes, it will be seen, only apply to protect a Constable when he acts in pursuance of the authority conferred on him, and they would not apply if the Constable's act were wholly unauthorized by law. But a Constable who does an act bona LIMITATION OF ACTIONS. 93 ■fide intending to do his duty, is within tlie protection of the Statutes, and therefore cannot be sued after the six months. {Gosden v. Elphick, 4 Exch. 445). So a Constable acting hona fide under a warrant commanding him to take the goods of one person, by mistake takes those of another, is protected. Parton v. Williams, 3 B. «fe A. 330). So where Constables were directed under a warrant to search a house for black cloth, and took cloths of another description, and carried them before a Magistrate, refusing at the time they took them to tell the owner of the house searched whether they had any warrant or not, it was held that they were within the protection of the Statute. /Smith v. Wiltshire, 5 Moore, 322. It seems if a Constable acts in his character as such, even without a warrant, that he is within the Statute. F'ield v. Croft, 5 Mocre, 329; and see Graves v. Arnold, 3 Camp. 242. But a Constable acting without a warrant is not protected {Postlethwaite v. Gibson, 3 Esp 226), and a Constable acting by colour, not by virtue, of his oflSce, is not protected. Alcock v. Andrews^ 2 Esp. 542 n. Where a Constable executes a warrant not directed to him in such a way as to authorize the execution by him, he is neverthe- less protected, and an action for the arrest, though illegal, must be brought within six months. Freegard v. Barnes, 7 Exch. 827; see also Collins v. Pose, 5 M. & W. 194; Theobald v. Criohmore, IB. & A. '227. ; '. - • > > c* In the Province of Ontario a Constable is entitled to protection under "An Act to Protect Justices of the Peace and other Officers from vexatious Actions," Rev. Stat. (Ont.) chap. 73. See Sage v. Dufy, 11 Q. B. (Ont.) 30 ; McDougall v. Peterson, 40 Q. B. (Ont.) 95. And a Constable is entitled to notice of action under the Statute of Canada 32 & 33 Vic. chap. 29, s. 131, and is within the pro- tection of the Statute. Under section 132 of the Act, when a sub- ordinate Police Constable acts under the command of a superior officer in making an arrest, he may, where the arrest is legal and be acts within the limits of the command, give evidence to shew a Oft constables' manual. jnstification under the command without pleading such justifica- tion specially. Pepvy v. Orono, 1 Russell & Chesley (N.S.) 31. An action of trespass for false imprisonment was brought against two Constables who had arrested the plaintiff without a warrant by order of E., who suspected him of having set fire to his house. The plaintiff and E. liad not been on good terms, E. having caused his removal from the Police Force, and there was evidence to shew that he had threatened to injure E.'s person and property, and sent threatening letters to him some time before the fire. The fire took place during the night, and after it was Over E. was informed by some person that the plaintiff had been seen leaving his shop and going towards the place where the fire was and returning hastily after the alarm was given. E. saw the Constables and ordered them to arrest the plaintiff, which they did without a warrant. On the investigation before the Magis- trate, it was not shewn that a felony was committed or how the fi[re originated. The Constables were acquitted on the ground that they had received no notice of action; but the Court held that the Judge should have directed the Jury to find whether, when they arrested the plaintiff, they hona fide believed in the exis- tence of a state of facts which would have justified the arrest. Murphy y. Ji^llis, ^ ILa.nnaj, S4:5. i^^ - . ' ; .; :- ^y ; vi Constables are therefore not entitled to notice of action unless they honafde believe in the existence of circumstances which, if they had really existed, would have amounted to a justification. See also Griffith v. Taylor, L. R. 2 C. P. D. 194. In effecting an arrest under the 32 & 33 Vic. chap. 21, s. 117, which provides that any person found committing an offence may be immediately apprehended without a warrant by any person, it is necessary, to entitle the Constable to notice of action by virtue of the 32 & 33 Vic. chap. 29, s. 130-1, that he should lona fide believe that the person arrested was "found committing" the offence within the meaning of the Statute. Such belief will give protection though no felony is actually committed. But the hona fide belief does not apply to the " immediateness " of the appre- hension ; and though there is a lonotfide belief that the person 96 NOTICE OF ACTION. is found committing the offence, yet, as a fact, the apprehension must be immediate to give a riglit to notice of action in those cases where no felony has been actually committed. The section in question includes felony as well as misdemeanor. Wlicre qo felony had been actually committed, but the Jury found that the defendant (not a Constable) hona fide believed that he had found the plaintiff committing a felony, but the Jury had not found ;a8 a fact whether the plaintiff was immediately apprehended, it was held that to entitle the defendant to notice of action this point should be found in his favour, and a new trial was ordered. Gripth V. Taylor, L. E. 2 C. P. D. 194. In an action brought for breaking open a house, it was held that the defendants (one of whom was a Policeman, and the other acting in his aid and under the orders of the Mayor) were entitled to notice of action under the (N. B.) 11 Vic, chap. 13, s. 23 : the Policeman because he acted in the hona fide belief that he was in the legal discharge of liis duty, and the other defend- ant because he acted lona fide in aid of the Policeman, and under the belief that he had authority to do the act complained of. McMicJtael v. Gray, 2 Allen, 73. In an action against a Policeman, if it appears by the plain- tiff's evidence, or it may reasonably be inferred from the facts that he acted under a hona fide belief that he had authority by the (N. B.) Police Act, 12 Vic. chap. 68, to do the act com- plained of, and therefore would be entitled to notice of action, the plaintiff's counsel should ask to have that question submitted to the jury, or the defendant's counsel may ask it ; if neither counsel ask, and the question is not submitted, the Court may determine whether there is evidence to shew reasonable grounds of belief. Harvey v. Marshall, Steven's Dig. N. B. 9-10. The Police Act (N. B.) 11 Vic. chap. 13, s. 22, did not autho- rize the arrest without warrant of known residents of the place, but only of transient persons, and a person acting as principal in directing a Policeman to make an arrest is not ent itled to notice of action under that Act. Foley v. Tucker, 1 Harinay, 52. 96 CONSTABLES' MANUAL. If the day specified in the uotice as the time when the arrest and false imprisonment took place be proved to be the day on which the defendant acted as a Constable, the plaintiff, to avoid the necessity of notice, will not be allowed to prove an arrest and false imprisonment made on a day previous, when the de- fendant was not a Constable. Bettersworth v. Hough^ 10 L. C. J. 184. -v; APPENDIX. GENERAL INSTRUCTIONS TO CONSTABLES. The following instructions for the guidance of Constables have been promulgated in England : The Constable may arrest one whom he has just cause to suspect to be about to commit a felony. Thus, when a drunken person or a man in a violent passion threatens the life of another, the Constable should interfere and arrest. He should arrest any person having in his possession at night any picklock, key, crow, jack, bit, or other implement with intent feloniously to break into any dwelling house, warehouse, coach house, stab^s or out- building (see 32 & 33 Vic. chap. 21, s. 59) ; or any person armed with any gun, pistol, hanger, cutlass, bludgeon, or offen- sive weapon, or having upon him any instrumenf with intent to commit any felonious act. (See 40 Vic. chap. 30.) Every person found in any dwelling house, warehouse, coach house, outhouse or stable, or in any inclosed yard, garden or area, and being there for any unlawful purpose, may be arrested. In each of these cases the Constable must judge from the situa- tion and behaviour of the party what his intention is. In some cases no doubt can exist, as when the party is a notorious thief or acting with those who are thieves, or when the party is seen to try people's pockets in a crowd, or attempt to break into a liouse, or to endeavour to take any property secretly from another. The Constable will not act hastily in case the intention is not clear, but content himself with watching closely the suspected party, that he may discover his design. . The Constable must arrest any one whom he sees in the act of committing a felony, or any one whom another positively charges with having committed a felony, or whom another suspecta of 8 98 APPENDIX. having committed a felony, if the suspicion appear to the Con- stable to be well founded, and provided the person so suspecting go with the Constable. Though no charge be made, yet if a Constable suspect a person to have committed a felony, he should arrest him ; and if he have reasonable grounds for his suspicion, he will be justified, even though it should afterwards appear that no felony was in fact committed ; but the Constable must be cautious in thus acting upon his own suspicion. Generally, if the arrest was made discreetly and fairly in pur- suit of an offender, and not from any private malice oi* ill-will, the Constable need not doubt that the law will protect him. If after sunset and before sunrising the Constable shall see any one carrying a bundle or goods which he suspects were stolen, he should stop and examine the person, and detain him ; but here also he should judge from circumstances (such as appearance and manner of the party, his account of himself, and the like) whether he has really got stolen goods, before he actually takes him into custody. The Constable must make every exertion to effect the arrest, and the law gives him abundant power for the purpose. If the felon or party accused of felony fly, he may immediately follow wherever he goes ; and if he takes refuge in a house, the Con- stable may break open the doors if necessary to get in, first stating who he is and his business; but the breaking open outer doors is so dangerous a proceeding that the Constable should never resort to it except in extreme cases, and when an immediate arrc^st is necessary. There are some cases in which a Constable may and ought to break into a house, although no felony has been committed, where the necessity of the case will not ad'^-Jt of delay, as where persons are fighting furiously in a house, or where a house has been entered by others with a felonious intent, and a felony will probably be committed unless the Constable interfere, and there are no other means of entering. Except in such cases, it is better in general that the Constable should wait till he has a warrant from a Magis- trate for that purpose. APPENDIX. »P If a prisoner escape he may be retaken, and on immediate pursuit the Constable may follow him into any place or any house. If a Constable finds his exertions insufficient to effect the arrest, he ought to require all persons present to assist him, and they are bound to do so. In cases of actual breaches of the peace, as riots, affrays, assaults, and the like, committed in the view of the Constable, he should immediately interfere (first giving public notice of his ofiice if he be not already known), separate the combatants, and prevent others from joining in the affray. If the riot, &c., be of a serious nature, or if the offenders do not immediately desist, he should take tliem into custody, securing also the principal instigators of the tumult, and doing everything in his power to restore quiet. A Constable, in cases of assault which have not been committed in his presence or within his view, is not authorized to arrest or assist in arresting the party charged ; nor is he to receive a party 80 charged into his custody, unless the party has been arrested by some other Constable who saw the assault committed. He may arrest any one assaulting him or opposing him in the execution of his duty. • If a person forcibly enter the house of another, the Constable may, at the request of the owner, turn him out directly ; if he have entered peaceably, but having no right to enter, and the owner request the Constable to turn iiim out, the Constable should first request him to go out, and unless he do so he should turn him out, in either case using no more force than is necessary for the purpose. Where the offence has not yet been committed, but where a breach of the peace is likely to take place, as where persons arc preparing to fight, the Constable b!" uld take the parties concerned into custody; if they fiy into a house, or are making preparation to fight within the house, the Constable should enter the house to prevent them, and likewise take the parties into custody; and •hould the doors be closed he may break them open if admission be refused, after giving notice of his office and his object in entering. 100 APPENDIX. If a party threaten another with immediate personal violence, or offer to strike, the Constable should interfere and prevent a breach of the peace ; if one draw a weapon upon another, attempt- ing to strike, the Constable should take him into custody. If persons be merely quarrelling or insulting each other by words, tlie Constable has no right to take them into custody, but should be ready to prevent a breach of the peace. The Constable ought to arrest and take before a Justice any person walking about the streets and exposing to view in the street any obscene print or exhibition. If a party charged with a misdemeanor escape out of custody, he may be pursued immediately anywhere; and if he take refuge in a house, the doors may be broken open after demand of admis- sion, and after notification by the Constable of his office and object in coming. . After arrest the Constable is in all cases to treat a prisoner properly, and impose only such constraint upon him as may be necessary for his safe custody. The Constable is bound to follow the directions contained in a warrant, and to execute it with secrecy and dispatch. The power given to him for the purpose of arresting has been already shown. If the warrant cannot be executed immediately, it should be executed as soon as possible afterwards. The Constable must execute the warrant himself, or when he calls in assistance must be actually present. Upon all occasions he ought to state his authority, if it be not generally known, and should show his warrant when required to do so ; but he should never part with the possession of the warrant, as it may be after- wards for his own justification. Upon arrest being made, the prisoner is to be taken before the Magistrate as soon as convenient. When the prisoner is brought to the Justice, he still remains in custody of the Constable until his discharge or committal, or until the officer receive the orders of the Justice. The Constable may enter a house to search for stolen goods, having ^' . c got a search warrant from a Magistrate for that pur- APPENDIX. 101 pose. He should, when it is possible bo to do, execute it in the daytime. If he finds the J2;ood8 mentioned he is to take them to a Magistrate, and when the warrant so directs, he must take the person also in whose possession they are found. To avoid mis- takes, the person who applies for the warrant ought to attend at the search to identify the goods. The Constable has power to apprehend and carry before a Justice of the Peace every common prostitute wandering in the public streets, public highways, or in any place of public resort, behaving in a riotous or indecent manner; every person wander- ing abroad, or placing himself or herself in any public street or highway, court or passage, to beg or gather alms, or causing, or procuring, or encouraging any child so to do, all such being declared by the law to be idle and disorderly persons ; every person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon, not having any visible means of subsistence, and not giving a good account of himself or herself; every person wandering abroad, and endeavouring by the exposure of wounds or deformities to obtain or gather alms ; every person going about as gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind under any false or fraudulent pretence; every person playing or betting in any street, road, highway, or other open or public place, at or with any table or instrument of gaming, at any game or pretended game of chance. In cases above mentioned, the Constable has by law power to arrest. AS TO THE FEES OF CONSTABLES. Tn the Province of Ontario, the Eev. Stat. (Ont.) chap 84, provides : 2. The Table of Fees in the Schedule appended to this Act, shall be and constitute the fees to be taken by Sheriffs, Coroners, Clerks of the Peace, Constables and Criers respectively, for the services therein mentioned in respect of any business by them done and transacted in all such prosecutions, matters, causes and proceedings as aforesaid, and in proceedings in the County Judge's 103 APPENDIX. Crirninal Court, and before Coroners or Justices of the Peace, until otherwise provided by Act of the .Legidature, or (in the caBO of Constables) by the Lieutenant-Governor, under the provisions of the next section. 3. The Lieutenant-Governor in Council may from time to time fix the fees to be taken by Constables for services rendered by such oflScers in the administration of criminal justice, or in any proceed- ings had before Coroners or Justices of the Peace. 4. All percentage, fees or allowances, on levying fines and recognizances, may be levied over and above the amount of such fines and recognizances. 5. Nothing herein contained shall deprive any of the before- mentioned officers of such fees as are allowed by any Act of Parliament, or of the Legislature of this Province, for other ser- vices not herein provided for. 6. If any officer hereinbefore mentioned wilfully and know- ingly demands or receives any other or greater fee or allowance than the fee and allowance to which he is entitled under this Act, for any of the services performed by them respectively (unless allowed by some other Act of Parliament, or of the Legislature of this Province or by the Lieutenant-Governor in Council, under section three of this Act), he shall, for every such offence, forfeit and pay the sum of forty dollars to any person who sues therefor in any Court having competent juris- diction to hear and determine the same. 7. All such suits and actions must be brought before the end of six months after the offence was committed, and not otherwise. 8. There may be paid to Gaol Surgeons for the examination of each prisoner eligible for removal, or sentenced to the Central Prison, including certificate, the fee of one dollar. SCHEDULE. CONSTABLES. L Arrest of each individual upon a warrant (to be paid out of the County funds, or by tJie party, as the case may be) ^1 60 2. Serving summons or subpoena (to be paid out of the County funds, or by the party, as the case may be) 26 APPENDIX. 103 3. Mileage to serve summons, subpoena or warrant (to be paid out of the County funds, or by the party, as the case may be) $ 10 4. Do. , when service cannot be effected, upon proof of due diligence, do., do 10 6. Do., taking prisoner to gaol, exclusive of disbursements necessarily expended in his conveyance 10 6. Attending Justices on summary trials, or on examination of prison- ers charged with crime, for each day necessarily employed in one or more cases, when not engaged more than four hours 1 00 7. Do. , when engaged more than four hours 1 50 8. Attending Assizes or Sessions each day 1 50 9. Mileage travelling to attend Assizes, Sessions, or before Justices, (when public conveyance can be taken, only reasonable disburse- ments to be allowed) 10 10. Summoning Jury for Coroner's inquest, including attending at inquest, and all services in respect thereof, if held on same day as Jury summoned 2 00 11. Attending each adjournment thereof, if not engaged more than four hours 1 00 12. Do. , if engaged more than four hours 1 50 13. Serving summons or subpoena to attend before Coroner (subject to No. 10) 26 14. Mileage serving same 10 15. Exhuming body under Coroner's warrant 2 00 16. Reburying same 2 00 17. Serving distress warrant, and returning same 1 50 18. Advertising under distress warrant 1 00 19. Travelling to make distress, or to search for goods to make dis- tress, when no goods are found 10 20. Appraisements, whether by one Appraiser or xaore ... .two cents in the dollar on the value of the goods 21. Catalogue sale and commission, and delivery of goods . .five cents in tlie dollar on tlie net produce of the goods 22. Executing search warrant 1 50 23. Serving notices on Constables, when personally served 60 37 Vic. chap. 7, s. 73 ; Order in CouiwU, 24th July, 1874. The Rev. Stat. (Ont.) chap. 86, also provides that such of the expenses of the administration of criminal justice in this Province as are mentioned in the Schedule to this Act, shall be paid out of the Consolidated Revenue Fund of the Province. lb. s. 1. All accounts of or relative to the said expenses shall be examined, 104: APPENDIX. audited, vouched and approved under such regulations as the LieuteiiantGovernor in Council from time to time directs and appoints, lb, s. 2. SCHEDULE. CONSTABLE. 1. Arrest of each individual upon a Warrant. (Ifpayahh by the Crown) — (Tariff, item 1). 2. Serving summons or subpoena. (If payable by the Crown) — (Tariff, item 2). 3. Mileage. (If payable by the Crovm) — (Tariff, item S). • • ' 4. Mileage in going to serve summons or warrant when the service has not been effected ; the Board of Audit being satisfied that due diligence was used. (If payable by the Crown) — (Tariff, item 4)- 5. Attending Assizes or Sessions — (Tariff, item 8). 6. Attending any Justice on summary trials, or on the examination of prisoners charged with any crime — (Tariff, item^ 6 and 7). 7. Taking prisoners to Gaol, and disbursements necessarily expended in their conveyance — (Tariff, item 5). 8. Summoning Jury for Inquest, and services at same — (Tariff, item 10). 9. Attending Inquest for each day other than the first — (Tariff, items 11 and 12). 10. Serving summons or subpoena to attend before Coroner — (Tariff, item IS). 11. Mileage serving same — (Tariff, item 14). 12. Serving notice of Appointment of Constables, when personally served —(Tariff, item 2S). All Constables' fees for services in connection with prisoners charged before Justices of the Peace with other than indictable otfences, are payable by the County. The fees In the case of a prisoner charged with an indictable offence, who is not committed for trial before a Court of Record but the case is dismissed by the Justice, are also payable by the County. Constables must state in their accounts for arrest or conveyance of prisoners the nature of the crime upon which the prisoner was arrested, and whether he has been tried or held over for trial before the Assizes, Quarter Sessions or Kecorder's Courts. Mileage at 10 cents per mile going to arrest covers hire of conveyances, but in mileage taking prisoners to Gaol (No. 5 in APPENDIX. 105 the Tariff) the expense of hire of conveyance will be admitted in addition to the allowance per mile. Constables must have attached to their accounts the Magis- trate's certificate that the services were performed. The form of certificate is as follows : I do hereby Certify that the above {or within) services were performed by Constable under my directions, and that the prisoner was committed to Gaol for trial {or bail was accepted for his appearance for trial, as the case may'be.) :^ ,.-■■,-, - . •. A. B., Accounts in connection with Inquests must be sent in sepa- rately, and have the certificate of the Coroner attached that services were performed. Wliere mileage is claimed, places from and to must be men- tioned. The fee o^ $2 covers all services of the Constable for summoning the jury, witnesses, and attending the Inquest for the first day. If any number of miles has to be travelled to summon witnesses, mileage will be allowed in addition. If the Inquest is adjourned, in addition to the fee of $1, for every other day he will be allowed the services of summons upon witnesses served upon that day, together with mileage as above. Assistant Constables must forward their own accounts, certified by the Magistrate or Coroner that the charges are correct, and that assistance was necessary. The forms of certificate to be attached to accounts payable by the Government is as follows : I do hereby Certify that the above {or within) services were performed by Constable under my directions, and that the prisoner was committed to Gaol for trial {or bail was accepted for his appearance for trial, as the case may be), and that such assistance was necessary, A. B., J. P. The account must also shew for what crime the prisoner was arrested, and whether or not he has been committed for trial, or bail has been accepted. 106 APPENDIX. All accounts must have the proper dates placed opposite the respective charges, and must be verified by the oatli of tlie party performing the service. " ^ The allowance for attending the Assizes or Sessions is con- sidered as covering the twelve hours in the daytime, and a Constable's charge for attending a jury at night is admissible in addition to this. Blank lists for Constables attending courts are furnished the Sheriff by the Treasury Department at Toronto. These are to be filled up and certified by the Sheriff. The County Treasurers will then include them in their quarterly Schedules of Accounts, and payment will be made only on these certified lists. $1 50 per day will be considered a proper allowance for Con- stables escorting prisoners to the Penitentiary, all his expenses being paid, that being the daily allowance for such services. The fees for executing a search warrant other than for the arrest are payable by the County. A Constable who pursues a criminal from County to County, under a warrant properly endorsed, is entitled to charge as much as if the arrest were made in. bis own County. Where Constables, under the authority and by the command of the Executive Government, pursue criminals beyond the limits of the Province, a fair allowance ought to be given them to cover expenses, L "t in no other case is a Constable entitled to any allowance for the pursuit of a prisoner beyond the limits of the Province. As to "mileage" generally, and "arrest under warrant," these charges, and expenses appertaining thereto, will be admitted as chargeable against the Government only in cases of the following description of offences, viz. : offences tried or to be tried at the Court of Oyer and Terminer, or at the Court of Quarter Sessions (cases connected with criminal justice), but not to cases falling under the jurisdiction of Justices. It is recommended that the several officers make out their accounts of fees, &c., for services connected with criminal justice, payable by the Government, distinct from expenses payable by the County. APPENDIX. 107 Under the Act respecting the Trial and Punishment of Juve- nile Offenders, 32 & 33 Yic. chap. 33, the allowances to thte Con- stables and other Peace Officers for the apprehension and detection of the offender, shall be ascertained by and certified under the hands of the Justices disposing of the case. Ih. s. 27. As to Constables' fees under the Dominion Elections Act, 1874, see ante p. 28. The following is the Tariff of Fees in the Province of Nova Scotia : constables' fees in supreme court. Attending Jury in each cause $ 20 Serving every waiTant or summons 20 Summoning a Jury by warrant from Coroner, and attendance per day . 50 Travel per mile, same as Sheriff. constables' fees in justices' court. Serving summons and making return $ 20 Serving capias and making return 20 Bail bond 20 Summoning a Jury ' 20 Summoning each additional Juror where there are not sufficient by- standers 06 Serving subjwBna, each witness 10 Serving execution 20 Poundage on execution on sale of goods ; 10 Poundage on execution where the amount is paid in money, for each four dollars 05 All travelling to be computed from residence of Justice to residence of defendant on summons, capias or execution ; and from residence of officer to residence of witness on subpoena, each mile, when necessarily done ; 10 In cases of execution levied on the body, travelling to be computed from tlie residence of officer to that of defendant and thence to place of confinement, each mile 10 Where subpoenas are served by a Constable, travel shall not be charged for serving each witness, but only so much travel as may be actually and neces- sarily performed by the Constable in serving all the subpoenas. In the Province of iNew Brunswick, by the Consolidated Stu- tutes, chapter 119, the following Fees are allowed to Constablee : SUPREME COURT (lAW SIDB). Attending the Jury, each cause $0 20 Serving a warrant » 20 108 APPENDIX. Summoning a Jury on inquest 00 40 Attendance thereon 40 Travelling, per mile J 05 cotninT COURTS. Attending each Jury 20 CIVIL SUITS BEFORE JUSTICES. Serving a summons and making return 10 If served by any other person, no fee therefor. For serving a capias and making return 20 Taking bail, if entered into before Constable 05 Return of non est 05 Serving a warrant to commit 20 Summoning a Jury 20 Attending at the trial 05 Summoning each additional Juror, if there are not sufficient bystanders 05 Serving a subpoena on each Witness 20 Serving an execution on the goods for the first four dollars, or less .... 20 Do, all above four dollars, for eacU four dollars 10 Serving an execution on the body 10 Every mile (where the distance is more than one mile) going from Con- stable's residence to place of service, when serving a summons, capias or execution, bringing defendant before Justice from place of service to Justice's residence, taking defendant to gaol, the Con- stable to \m allowed for all such necessary travelling both going and returning 05 coroners' INQUESTS. ' For summoning the Jury 1 00 For attendance on Inquest 50 Serving each order, subpoena, or permissive warrant 20 If required to attend at the burial 50 Travelling fees to serve any order, subpoena or warrant the same as for similar services in suits before Justices. EJECTMENT UNDER CHAPTER RELATING TO LANDLORD AND TENANT. Travel on service of summons, each mile going and returning 05 Service of summons, copy and affidavit 40 SUMMARY CONVICTIONS. Serving summons and making return 20 Serving warrant to arrest 30 Taking replevin bond 40 Serving warrant of distress 20 And poundage of 20 cents for every four dollars. APPENDIX. 109 Executing warrant of imprisonment ^040 Serving snbpcena and return 20 In addition, 6 cents per mile going and returning, according to number of miles actually travelled. Under chapter 100 — relating to Rates and Taxes — The same fees as aro payable in civil suits before Justices of the Peace for similar services. Under chapter 103 — relating to Bastardy — V The Constables' fees are the same as in the Supreme Court. Under chapter 110 — relating to Fines, Trespasses and Pounds — For replevying cattle and serving warrant $0 50 And mileage on executing warrant the same a& allowed for serving summonses in civil suits before Justices of the Peace. For preparing bond and getting it exeouted 1 00 For assigning bond (to be paid by the party applying for the assignment) 50 For all other services the same as is allowed in civil causes before Justices of the Peace. In the Province of New Brunswick, a Judge presiding at a Court of Oyer and Terminer had no power to make an order for the payment of a Constable for attending the court or securing the attendance of witnesses in a criminal trial. Mulligan v. Rains- ford, 2 Han nay, 1. But see the Consolidated Statutes (N. B.), p. 1096 ; 35 Vic. chap. 12. Certified fees of a Constable may be recovered in an action before a Justice of the Peace, when there are sufficient funds in the County Treasurer's hands to pay thera. Mulligan v. Rainsfoi'd, supra. In the Province of Quebec, the Bailiff's Fees are as follows : SUPERIOR COURT. [Note. —The amounts given in the first column (and in italic figures fornon-appcalnble case*) are the charges now and for some time past made by the Bailiffs. The other llgures are tak«n from the old tariff, which has not been revised. The Bailiffs themselves have made the change.] For service of any notice or other paper upon an attorney as such, including return ^0 30 $0 20 For the service of a writ of a subpoena on each witness, includ- ing return 0^ 30 110 APPENDIX. For the service of any writ of summons, or other writ or paper, not otherwise provided for, including return $0 75 $050 For the service of any writ or other docirment required by law to be served personally, including return 75 60 For all proceedings on the arrest of any person, including return when required 7 00 2 60 For the seizure of real estate, or the seizure or attachment of movables, including original inventory, and copies for the debtor and for the guardian to movables 4 50 3 00 If more than one lot of land included in any seizure, for addi- tional lot , 50 50 For every publication, in both languages, at the church door, not otherwise provided for, including notices, affixing same, &c 4 00 50 For the sale of real or personal property, including minutes of sale and copy 3 00 2 50 If more than one lot of land be sold under the same writ, for each additional lot sold 50 50 For a return of no goods or no land, including copy if required 1 GO 50 For a return of " rebellion d justice," and copy 1 00 1 00 For all services executing a writ of possession, including return 2 50 2 50 For " recors " when required 1 00 76 If "recors" necessarily employed more than half a day, at the rate of $1 per day , same. For the appointing of a new guardian when legally required so to do, including return, copy, &c 1 00 1 00 For the posting and publication of ex parte notices for a ratifi- cation of title, including return, &c 4 00 4 00 For the attendance on jury trials xinder the direction of the sheriff, per diem (when required) tiever required now. 1 60 In any case in which, in consequence of more than one person being interested in the property seized or sold, an addi- tional copy or copies of the inventory is or are necessary, for esch extra copy so required , 50 60 If, in consequence of the quantity of goods to be seized or sold, a Bailiif is necessarily occupied more than one day in making auch seimiro or sale, the additional time, when certified by the Sheriff, to be charged at the rate of two dollars and fifty cents per day 2 50 2 60 If any paper to be prepared by a Bailiff, excepting minutes of geizuro of real estate, necessarily contains more than three hundred words, the additional words to be charged at the rate of eight cents and one-third of a cent per hundred words, in addition to the fees hereinbefore allowed 10 APPENDIX. Ill Mileage on the service or execution of a writ of process of any kind at the rate of twenty-five cents per mile, without any further charge for mileage on any other process to be served on the same party then in the hands of the Bailiff, and which shall be or might have been served at the same tune (whether Buch process shall have been sued out by the same party or by any other), and without any charge for mileage in return- ing, but exclusive of sums paid at toll-gates, ferries and bridges. No mileage to be allowed unless the distance exceed one mile same. ' ' CIRCUIT COURT. In Appealable Cases (now in all Cases.) For the service of any writ of subpoena or other writ or paper not otherwise provided for, including return ^ 35 $ 28 For the service of any writ of summons, and return 75 50 For the service of any writ or other document required by law to be served personally, including return 75 50 For the seizure and attachment of movables, including original inventory and copies for c.t,btor and guardian • 2 50 For all proceedings on the arrest of any person, including return 2 00 For every publication, in both languages, at the church door, including notices (affichoi), affixing same, &c 3 00 60 For the sale of goods and chattels, including minutes of sale and copy 3 00 1 60 For return of no goods, including copy if required 1 00 50 For a return of " rebellion d justice," and copy 1 00 For all services executing a writ of possession, including "proces verbal " 2 50 2 00 For a "recors " when required 50 40 K " recors " necessarily employed more than half a day, at the rate of GCf cents per day. For the appointment of a new guardian when legally required so to do, including return, copy, &c 1 00 In any caio in which, in consequence of more persons than one person being interested in the property seized or sold, an additional copy or copies of the inventory is or are neces- sary, for each extra copy so required 60 40 If any paper to be prepared by a bailiff necessarily contains more than three hundred words, the additional words to be charged at the rate of six cents and two-thirds of a cent per hundred words, in addition to the fees hereinbefore allowed acme. 113 APPENDIX. Mileage on the service or execution of a writ or of process of any kind, at the rate of twenty cents per mile, as hereto- fore, without any further charge for mileage on any other process to be served on the same party then in the hands of the Bailiff, and which shall be or might have been served at the same time (whetljer such process shall have been sued out by the same party or by any other), and without any charge for mileage in returning, but exclusive of sums paid at toll-gates, ferries and bridges. No mileage to be ailo'^ed unless the distance exceed erne mile same. Non- Appealable Cases. Mileage on the service or execution of a writ or of process of any kind at the rate of twenty cents per mile, without any further charge for mileage on any other process to be served on the same party then in the hands of the Bailiff, and which shall be or might have been served at the same time (whether such process shall have been sued out by the same party or by any other), and without any charge for mileage in returning, but exclusive of sums paid at toll-gates, ferries or bridges. No mileage tc be allowed un- less the distance exceed one mile. For the service certificate, or return of such writ or process For the seizure of goods and chattels, and all incidental trouble, but exclusive of mileage For his " recors " when required For the sale of goods and chattels, exclusive of mileage For publishing the notice of the sale For the service of any notice, and the certifi- cate and return For each service, 60 cents ; mileage to be charged according to the tariff of the Superior Court. 1st Class. Actions not exceeding $60, but above $40. $ C. 2nd Class Actions $40 or under, but above $25, 3rd Class. Actions |2> or under. 0.J jO 35 (0 25 1 60 \0 50 \o 33J 1 50 40 SO 20 35 25 1 00 50 33J 1 00 40 so 20 S5 25 1 00 50 33^ 1 00 40 30 20 APPENDIX. 113 The following is the Tariff of Constables' Fees, both in Bnm- mary trials and indictable offences, in the Province of Manitoba, under rule or order of the Court of Queen's Bench, dated sixth November, 1875 : Executing every warrant to arrest, besides mileage ^1 00 Serving every summons, each defendant 50 Summoning or warning each witness on a subpoena 25 Every attendance at the hearing before a Justice, if half a day or less, 1 00 If over half a day, and not more than one day 2 00 And after that rate for any longer time. Receiving and returning warrant of distress 1 00 Poundage on money made, besides actual disbursements, on the $100, 5 00 Conveying and dr.Uvering prisoner to gaoler, besides mileage 1 00 Mileage on such conveyance, per mile, one way 25 All other mileage necessarily travelled in executing or serving papers or process, counting one way, per mile 20 [Note. — Any service not specially named to be allowed for by the Justice, on a scale in jiroportion to the items speoitled.] The following is a list of some of the principal felonies, the distinctive peculiarities of which are more fully explained in my Masistrates' Manual. 'o' Abduction. — 32 & 33 Vic, chap. 20, ss. 54-5. Abortion. —32 & 33 Vic. chap. 20, ss. 59-60. AOOUSING OR THREATENING TO ACCUSE OF AN INFAMOUS CeIME. — 32 & 33 Vic. chap. 21, s. 46. AooKEssioNs, Lawless, by Subjects of Foreign States. — 31 Vic. chap. 14, s. 4. Arson and Burning. — 32 & 33 Vic. chap. 22. Assaults with intent to Rob. — 32 & 33 Vic. chap. 21, s. 41. Attempts to Murder. — 32 & 33 Vic. chap. 20, s. 10. Bailee, fraudulently converting. — 32 & 33 Vic. chap. 21, a. 3. Bigamy.— 32 & 33 Vic. chap. 20, s. 58. Buggery.— 32 & 33 Vic. chap. 20, s. 63. Burglary.— 32 & 33 Vic. chap. 21, s. 50. Child Stealing.— 32 & 33 Vic. chap. 20, s. 57. Coinage Offences. — 32 & 33 Vic, chap. 18. Conspiracy to intimidate a Provincial Lboislativb Body. — 31 Vic. chap. 71. Corruptly takino Reward.— 32 & 33 Vio. chap. 21, s. 115. Embezzlement. — 32 & 33 Vic. chap. 21, s. 70. 9 114 APPENDIX. Escape dttking conveyance to Penitentiary. — 38 Vic, chap. 44, s. 26. Forgery.— 32 & 33 Vic. chap. 19. Infants under the age of Ten Years,, abuse of. — 40 Vic. chap. 28, s. 2. Larceny.— 32 & 33 Vic. chap. 21. Mamcious Injuries. — 32 & 33 Vic. chap. 22. Manslaughter. — 32 & 33 Vic. chap. 20, s. 5. Menaces, demanding Money with. — 32 & 33 Vic. chap. 21, S8. 43-4. MlUTABY AND NaVAL StORES, CERTAIN OFFENCES RESPECTING. — 32 & 33 Vic. chap. 26, s. 4. Murder.— 32 & 33 Vic. chap. 20, s. 1. Piracy.— 32 & 33 Vic. chap. 29, s. 136; Imp. St&t. 12 & 13 Vic. chap. 96. Post Office, certain Offences respecting. — 38 Vic. chap, 7. Rape,— 36 Vic, chap. 50. Receiving Stolen Goods, knowing them to have been Stolen. — 32 & 33 Vic. chap. 21, s. 100. Rescue. — 38 Vic. chap. 44, s, 29. RiOTt^, Routs and Unlawful Assemblies, — 31 Vic. chap. 70. RoBB)?RY.— 32 & 33 Vic. chap. 21, s. 39. Shooting or attempting to Shoot. — 32 & 33 Vic. chap. 20, s. 17. Sodomy.— 32 & 33 Vic, chap. 20, s. 63. Treason. — 31 Vic, chap, 69, Misdemeanors are generally those crimes less than felony, and the word is generally used in contradistinction to felony, mis- demeanors comprehending all indictable offences which do not amount to felony, as Perjury, Battery, Libels, Conspiracies and Public Nuinances. The principal misdemeanors are Aifrays, Assault and Battery, Barratry, Betting and Pool Selling, 40 Vic. chap. 31 ; Bribery, 37 Yic. chap. 9, s. 92; Champerty and Maintenance, Child, Aban- doning same, 32 & 33 Yic. chap. 20, s. 26 ; Churches, obstruct- ing worship in, 32 & 33 Vic. chap. 20, s. 36 ; Compounding Offences, Concealing the Birth of a Child, 32 & 33 Vic. chap. 20, 8. 61; Conspiracy, Copyright Offences, 38 Vic. chap. 88, s. 24 ; Cruelty to Animals, 32 & 33 Vic. chap. 27 ; Driving Wantonly and Furiously, 32 & 33 Vic. chap. 20, s. 34 ; Embracery, En- ticing Soldiers or Sailors to Desert, 32 & 33 Vic. chap. 25 ; Escape in certain cases, 32 & 33 Vic. chap. 29, s. 84; Extortion, False Personation, False Pretences, 32 & 33 Vic. chap. 21, s. 93 ; Fire Arms, improper use of, 40 Vic. chap. 30; Fisheries, offences relating to, 31 Vic. chap. 60 ; Forcible Entry or Detainer, Fraudu- APPENDIX. 115 lent Marking of Merchandise, 35 Yic, chap. 32 ; Gambling Prac- tices in Public Conveyances, 40 Vic. chap. 32 ; Gaming and Gaming Houses, 28 Vic. chap. 41 ; Indecency, Insolvent, doing certain acts with intent to defraud, 38 Vic. chap. 16, s. 140 ; Libel, 37 Vic. chap. 38 ; Lotteries, Con. Stat. Can. chap. 95 ; Maintenance and Champerty, Master and Servant, offences under the Breaches of Contract Act, 1877, 40 Vic. chap. 35 ; Misprision of Felony, Nuisances, Obscenity, Pawnbrokers, certain offences by. Con. Stat. Can. chap. 61; Perjury, 32 & 33 Vic. chap. 23; Police, oflPences by, 31 Vic. chap. 73 ; Smuggling, 40 Vic. chap. 10, 8. 76 ; Telegraph Companies, offences relating to, 32 & 33 Vic. chap. 22, s. 41 ; Trade Marks, offences relating to, 31 Vic. chap. 55, 8. 7 ; Unlawful Training to the use of Arms, 31 Vic. chap. 15 ; Vagrancy, 32 & 33 Vic. chap. 28 ; taking Voluntary Oaths, 37 Vic. chap. 37 ; Weights and Measures, offences against the Act as to, 36 Vic. chap. 47. ADDENDA. T., a Constable, having arrested L. in the office of F., the latter paid the amount of the execution, less the Constable's fees. T. demanded his fees, whereupon L. knocked him down. S. and D., hearing the noise, went into the office where T. and L. were, and put T. out of the building. T. was not then committing a breach of the peace, nor had S. and D. seen him attempting to arrest L. S. and D. knew that T. was a Constable, and that he was there to execute the writ. In an action by T. against S. and D. for assault and rescue, the Court held that T. had a right to go into the office to execute the process ; that he wus entitled to his fees and to the custody of the prisoner until they were paid ; and t lat the disturbance having been caused by L.'s wrongful act, and not by any improper act of T., S. and D. were not jus- tified in interfering and putting T. out of the building. Tait v. Stronach, 1 Pug»ley & Burbidge, 226. INDEX. — ♦— — Actions — Page. Liability of Constables to 8C Protection from 87 Limitation of (<2 Notice of 93 Affray — Arrest for 34, 35 Aid to Constables — Refusing same 80 Persons aiding 81 Appointment of Constables 1, 2, 3, 4, 5 By County Judge 5 Provincial Constables 5 Of Special Constables 8, 9, 10, 11, 12, 13, 14 Prol oction of 14 Arrest — Powers of Constable in regard to 16, 17 Statutes as to 25 Cases in which the right to, is given by Statute 25 Without warrant in cases of misdemeanor 31 For swearing 39 Without warrant in cases of felony 40 On telegrams 44 On a Sunday 47 Wliat is an in.est 47, 48, 49 When it may be made 47, 60 Of person against whom indictment found 59 Of person confined in gaol 59, 60 Taking prisoner before magistrate after 70, 71 Assaulting Constables 12, 33 In execution of duty 33, 35, 80 Assistance — When Constable may command 22 Backing Warrant 53, 64 Of distress 64 Breach of the Peace — Arrest without warrant for 31 Breaking open Doors 18, 67 Charge — Giving in 43, 44 Churches — Arrest for disturbing worship in 25 CoOK-FiGHXiNG — ^Arrest for 22 118 mDEX. Paob Commissioners of Police 1 Appointment and powers of 1, 2, 3, 4 In the Province of Ontario 3, 4, 6, 6 Confessions — Dutiea of Constables in obtaining 77" Constable — Appointment of 1, 2, 3, 4 Guilty of disobedience of orders 1 Appointed by Commissioners in Ontario 3, 6 Suspension from office 7,8 Special Constables 8, 9, 10, 11, 12 Office of Constable 14, 16 Appointment of deputy 15 Exemptions from serving as 15, 16 General powers of a 16 Before arresting, should notify his office and authority 22, 23 General duties of 23 Arrest without warrant in cases of misdemeanor 31 Arrest without warrant in cases of felony 40 Taking prisoner before a magistrate 70 Assaulting and refusing to aid 80 Homicide by, in execution of duty 82 Liability to actions, and protection of 86, 93 Instructions to 97 Fees of. See Fees. Coroners — Constables' duties to 25 Costs — To be paid on producing receipt 62 See also Fees. Cruelty to Animals — Arrest for 26 Deputy — Appointment of 15 Discharge by Constable 17 Executing distress warrant 75 Distress Warrant — Execution and backing of 64 Discharge by Constable executing 75 Doors — Breaking open 67 Drunkenness — Arrest for 69, 70 Duties of Constables 23 Elections — Duties of Constables in regard to 28 Entry and Search 20, 21 When Constable may make 18, 19 Escapes — Liability for 79 EiCECUTioN OF Warrants 49 Of search warrants 73 INDEX. 119 Fbbs of Constables — Paob. In Ontario 101 In Quebec 109 In Nova Scotia 107 In New Brunswick 107 In Manitoba 113 Felonies — List of 113 Felony — Arrest without warrant in cases of 40 FotmD Committing Offences — Arrest of persons for 28, 29, 30 Gaming — Constable may arrest for 18, 19 Handcuffing 24, 70 Homicide — By officers in execution of duty 82 Indictment Found — Apprehension of prisoner after 59 Instructions for Guidance of Constables 97 Jurisdiction to which Authority of Constable extends 55 Justice — Before whom prisoner to be brought 49 What, a prisoner should be brought before .♦. 70 Landlords — Constables to aid 24 Limitation of Actions against Constables 92 Magistrate — Bringing prisoner before a 70 Marking Property found on Prisoner 70 Misdemeanor — Arrest without warrant in cases of 31 Misdemeanors — List of 114 Money found on Prisoners 75 Notice of Action 93 Office of Constable 14, 16 Penitentiary — Conveying prisoner i 58 Place for Execution of Warrant 52, 53, 55, 56 Powers of Constables 16 Prisoner — Articles found on 75 Property — Taken from prisoner, should be marked 76 Prostitute — When liable to arrest 22 Protection op Constables from Actions 86, 93 Receipts to be given to Constable 60, 61 Refusing to aid Constables 80 Rewards — Right to recover 79 Riots — Suppression of 26, 27 Search — When entry and, may be made 18, 19, 20, 21 Of prisoner, when to be made 76 Search Warrant — When a Constable may act without 21, 22 Execution of same 73 120 INDEX. Spboial Constables — p^iob. Appointment and powers of 8, 9, 10, 11, 12 Protection of 14 Statutes — Giving right to arrest 25 Summonses — Service of 62, 63 Sltnday — Arrest en 47 Sureties to keep the Peace — Whether Constable can take 17 Swearing — Arrest for 39 Telegram* —Arresting on 44, 45, 46, 47 Warrant — Arrest without, in cases of misdemeanor 31 In what cases necessary 38, 39 Arrest without, in cases of felony 40 Execution of 49 Time for execution of 49 . Direction of warrant 50, 51 Must name and describe offender 51, 52 Place for execution of 52, 63 Backing 53, 54 Where it may be executed 55, 56, 57 Apprehension of person indicted 59 When Constable bound to execute 62, 63 Of distress, execution and backing of 64 Must be under seal 66 When it may be executed 66, 67 Constable giving perusal and copy of 87 Protection of Constable in executing 86 OOPP, OLARK A 00., STEAM PBBSS PRIMTBBI*, COLBORNK STRKET, TORONTO.