them as they were moving off with the engine. The conductor was at the time about eight feet from the person who fired the first shot, and the ball passed through his coat. This person was a brother of Reno, one of the prisoners apprehended. The express messenger swore to the identity of the prisoners, and as to the identity of the person who fired the first shot. The prisoners were arrested in Canada, at the instance of the Express Company, and demanded for extradition by the United States authorities. The prisoners offered evidence on their examination to prove an alibi. Draper, C. J. (in Chambers) held that, under the circumstances of this case, there was sufficient prima facie evidence of the criminality of the prisoners to warrant a refusal to discharge them, and that there was evidence to go to a jury to lead to the conclusion that the intent of the prisoners was, at the time of shooting, to commit murder. (a)

In Re Anderson, (b) (although the objection to the jurisdiction was expressly waived by the counsel for the Crown) the Court entertained some doubt whether it was competent for them to interfere in the case of an offender coming clearly within the terms of the Treaty, after the Judge or Justice who has heard the evidence has determined that, in his opinion, it sustains the charge, and has transmitted to the Governor a copy of the testimony on which he has decided, and also committed the prisoner to the proper gaol, under the first section of the Act. The Court considered that there could be nothing clearer than the authority of our superior courts of law to exercise the same control over inferior criminal courts, and over magistrates acting in the administration of criminal law, as is exercised in

England, in like cases, by the Court of Queen's Bench. But as this authority is either given in particular cases by statute, or in other cases is exercised upon principles of the common law, in matters occurring in the ordinary administration of criminal justice, and arising within the ordinary reach of our laws, and the authority they were called upon to exercise in this case, sprung from no such sources, but rested wholly upon the provisions of a Treaty between Great Britain and a foreign Government, and of our Statute passed in conformity with that Treaty. The application also did not come within the section of the Act by which authority is given to the Judges of the superior court to discharge on Habeas Corpus a prisoner who has been committed for surrender, pursuant to the provisions of the Treaty and the Act, and has remained. two months in gaol without such surrender.

But as this authority had been assumed to exist in two other cases, (a) and the Court felt there was a strong argument for the necessity of a controlling power in the Superior Courts, without which the Governor must be left with the responsibility of exercising, with the assistance of his legal advisers, whatever discretion he may find reposed in him by the Statute; and as there was no decision to the contrary, the Court, without actually deciding the point, assumed to exercise the power of determining whether the commitment of the prisoner was warranted by the evidence, with the view, of course, of granting his discharge, if they came to the conclusion he was improperly in custody.

In Re Warner, (b) Hagarty, C. J. declared that he shared the grave doubts expressed by the Court in Anderson's case as to the right of the Judges to interfere

(a) Kermott's case, 1 Chr. Rep. 253, and Tubbee's case, 1 U. C. P. R. 98. (b) 1 U. C. L. J. N. S. 18.

by Habeas Corpus, except in the case specially provided for by the 5th section of the 31 Vic., c. 94. In the Chesapeake case, Mr. Justice Ritchie stated that the duty of determining on the sufficiency of the evidence was cast on the committing Magistrate-that he was invested with a judicial discretion in this respect which a Judge of the Supreme Court would not review on Habeas Corpus, adding, however, that if it was manifestly apparent on the evidence that no offence had been committed, or that the party was unquestionably innocent, the case would be very different.

The Act gives no power to obtain a writ of Habeas Corpus, except in cases under the 5th section, where the prisoner has remained in custody more than two months, without a requisition having been made. (a) The effect of the decision in the Chesapeake case is, that the right to a Habeas Corpus exists in extradition cases as well as others. In this case, an order was issued under the Act of Assembly, 19 Vic., c. 42. This Act gave the Judge like powers, upon an order issued under it, as in a proceeding by Habeas Corpus. Mr. Justice Ritchie held that not only was the order warranted, that the liberty of the subject might be preserved, but that he had power to review the proceedings before the Magistrate; and if there was no ground for them, or the Magistrate had fallen into any error, either in form or substance, and the parties appeared to be illegally imprisoned, to discharge them, but only when it was manifestly apparent on the evidence that no offence had been committed. The persons charged in this case, however, were inhabitants of New Brunswick, and British subjects. The Chesapeake case may, perhaps, be regarded as a decision in favor of the power of the Courts to review the Magistrate's find

(a) Re Anderson, 20 U. C. Q. B. 189, per Burns, J.

ing as to the sufficiency of the evidence. It is, however, expressly limited to the case of the latter clearly exceeding his powers.

The weight of judicial authority seems to establish that the Magistrate's decision is reviewable by the Court. (a) The reasoning of Chief-Justice Richards, in Re B. G. Burley, (b) seems to be very forcible and conclusive. He says, "I think the right of the Court to review the decision of the Magistrate as to the sufficiency of the evidence to justify the committal of the prisoner is sustained by general principles of law, as well as by authority, and it is one which it is not desirable should be taken away. The sending of any man out of the country, under a constitutional Government, is a grave exercise of power, and ought not to be permitted, unless the right to do so is established in the clearest manner; and when this right extends to delivering over any of the Queen's subjects to a foreign power, as I am satisfied it does under our Statute, it is not going an unreasonable length to assert that the subject has the right to have it placed beyond reasonable doubt that the evidence given to sustain the charge is sufficient, in the judgment of the superior tribunals of the country, to warrant such proceedings being legally taken against him."

In Reg. v. Reno and Anderson, (c) it was declared that the Court, or a Judge, on Habeas Corpus, would, where the evidence before the Magistrate is conflicting, determine on the legal sufficiency of the commitment, and review the Magistrate's decision as to their being sufficient evidence of criminality.

Assuming that this power of revision exists, and that

(a) See Re Anderson, 20 U. C. Q. B. 189, per Burns, J.; Reg. v. Tubbee, 1 U. C. P. R. 102, per Macaulay, C. J.; Re Kermott, 1 Chr. Rep. 254, per Sulli

the evidence, etc., is brought up on Habeas Corpus and Certiorari, the matter is to be disposed of on the principle -taking the evidence laid before the Judge below, was there enough in the words of the Act "to justify the apprehension and committal for trial of the person accused, if the crime of which he is accused had been committed in this country." (a)

The Court above must be fully satisfied there is no legal ground on which such decision can be supported before it is reversed, (b) and it would seem that if in one view of the evidence the Court find the decision sustainable, they ought not to interfere and reverse it. (c) Where the prisoner was brought before a Judge in general sessions, on the original warrant of arrest, and remanded before final commitment, the Court doubted their power to interfere by Habeas Corpus until final commitment. (d)

The following case bears on the question of return to the writ of Habeas Corpus:

Where, after the prisoners were committed by a Justice for extradition, a writ of Habeas Corpus, directed to a gaoler, was sent to the Clerk of the Crown, with a return stating that he held the prisoners under a warrant of committal annexed, but was unable to produce them for want of means to pay their conveyance. This return having been marked by the Clerk, "received and filed, 26th September, 1868," and signed by him, a Judge in Chambers made an order allowing these papers to be withdrawn, for the purpose of having another return made. The prisoners were afterwards produced, with the writ to which the foregoing return was annexed, and

(d) Reg. v. Bennet H. Young; the St. Alban's Raid, 15.