shall see cause, by warrant under his hand and seal, may cause the person charged in such information to be apprehended and committed to safe custody, there to remain until discharged in due course of law, or until bailed in cases where bail may be taken. 7 G. 4, c. 38. How taken, &c.] As soon as the party accused is brought before the justice, the latter, after informing himself of the nature of the charge from the warrant or otherwise, calls upon the witnesses for the prosecution to give their evidence, and administers to each the following oath : "You shall true answer make to all such questions as shall be demanded of you; so help you God." Or if the witness be a Quaker or Moravian, he may affirm thus: 'I, A. B., being [one of the people called Quakers," or one of the persuasion of the people called Quakers," or one of the united brethren called Moravians," as the case may be] do solemnly, sincerely and truly declare and affirm, that I shall true answer make to all such questions as shall be demanded of me." Or if the witness be a Separatist, he may affirm thus: "I, A. B., do, in the presence of Almighty God, solemnly, sincerely and truly affirm and declare, that I am a member of the religious sect called Separatists, and that the taking of any oath is contrary to my religious belief, as well as essentially opposed to the tenets of that sect; and I do also in the same solemn manner affirm and declare, that I shall true answer make to all such questions as shall be demanded of me." The justice then proceeds to examine the witnesses, and takes down their depositions in writing. And this should be done by the justice himself or in his presence, in order that he may put such questions to the witness as he may think proper, hear his answers, and judge of the manner in which they are given. See Caudle v. Seymour, 1 Q. B. 889. The following may be the form of the depositions :Berkshire:-The examination of C. D., of· —, labourer, taken on oath this S. T., of farmer, and day of - in before me, E. F., one of Her Majesty's justices of the peace for the county aforesaid, in the presence and hearing of A. B., charged this day before me, the said justice, for that he the said A. B., on — at [&c. describing the offence as in a warrant of commitment.] This deponent C. D. upon his oath saith that [&c. stating the deposition of the witness, as nearly as possible in the words he uses. When his deposition is complete, let him sign it.] And this deponent S. T., upon his oath saith, that, &c. And the said witnesses C. D. & S. T., against the said A. B., upon the charge aforesaid, having been so examined in his presence and hearing as aforesaid, and the said charge being read over to him, he the said A. B. is now asked by me, the said justice, if he wish to say anything in his own behalf; whereupon the said A. B. saith [here state whatever the prisoner may say, as nearly as possible in the very words he uses. See post, p. 292. He should be asked to sign his examination; but if he refuse to do so, still this will not prevent what he has said upon his examination from being given in evidence against him, if necessary, at the trial. R. v. Lamb, 2 Leach, 625.] Taken before me the day and year above-mentioned. J These examinations, &c. must be signed by the justice or justices before whom they are taken, who must cause them to be delivered, together with any bailment or recognizances taken in the same matter, to the officer of the court in which the trial is to be had, before or at the opening of the court. 7 G. 4, c. 64, ss. 2, 3, ante, p. 287. And he should send the depositions of all the witnesses examined, although he may consider some of them immaterial, R. v. Fuller, 7 Car. & P. 269, and the several examinations of the same witnesses, taken at different times, if such be the case. R. v. Simons, 6 Id. 540. Also each deposition should contain the whole of what the witness stated, which was at all relevant to the charge. R. v. Grady and Curley, per Lord Denman, C. J. R. v. Coveney, Id. 667. R. v. John Thomas, Id. 817. The examination of the prisoner may be proved by the magistrate or his clerk, or by any person who was present and attested the prisoner's signature to it; R. v. Hopes, 7 Car. & P. 136. R. v. Hearn, 1 Car. & M. 109; or by proof of the magistrate's handwriting subscribed to it, and that it is the examination of the prisoner; R. v. Mary Foster, 7 Car. & P. 148; but parol evidence of it cannot be received, if it appear that the magistrate took down anything which the prisoner said. R. v. James Walker, 7 Car. & P. 267. And see Leach v. Simpson, 5 Mees. & Wels. 309. The depositions of the witnesses may also, if necessary, be proved in the like manner. R. v. Wilshaw, 1 Car. & M. 145. And the deposition of a witness, taken by a magistrate, in the presence of the prisoner, in pursuance of stat. 7 G. 4, c. 64, s. 2, 3, 4, mentioned ante, p. 287, may, when thus proved, be read at the trial of the prisoner, if the witness in the mean time have died, R. v. Smith, R. & Ry. 339. R. v. Osborne, 8 Car. & P. 113, or be bed-ridden and not likely ever to be able to attend at the assizes, R. v. Wilshaw, supra, or have become insane, R. v. Marshall et al., 1 Car. & M. 147, or be kept out of the way by or on behalf of the prisoner, R. v. Gutteridges et al., 9 Car. & P. 471, per Parke, B., or perhaps if at the time of the trial he be unable to travel; 1 Hale, 586; but otherwise if it were taken ex parte. But even if taken in the prisoner's absence, yet if the witness be again sworn in his presence, his depositions read over to him slowly in the prisoner's hearing, so that the prisoner might have an opportunity of cross-examining him, if he wished,—if the witness afterwards die, his deposition may be read against the prisoner at his trial. R. v. Smith, supra. If a magistrate upon a charge of which he has jurisdiction, commit the accused upon insufficient evidence, he is not liable to any action for doing so; it will be deemed an error in judgment merely, and not the subject of an action. Cave v. Mountain, 9 Law J. 90, m. 1 Man. & Gr. 257. Prisoner remanded.] If, from the absence of witnesses, or from any other reasonable cause, it become necessary or advisable to defer the examination for any time, the justice may do so. The examinations, as far as they have gone, however, should be signed by the witnesses, and by the magistrate, in the same manner as if the party were actually committed. Per Ld. Denman, C. J., in R. v. Ld. Mayor of London, 5 Q. B. 564, 555. If the accused be in the custody of the constable, under the warrant, and it be intended to resume the examination on the next day, or within some other short period, a mere verbal order to the constable to bring the prisoner before the justice at the time appointed, will be sufficient, and the prisoner remains in custody under the warrant in the mean time. See 2 Hale, 120. But if it be necessary to remand him for any considerable period, it may be prudent to commit him to prison, in order that he may be brought up again for reexamination, at a certain time. Care must be taken that he be not thus committed for re-examination for an unreasonable time, otherwise the justice so committing him will be liable to an action of trespass for false imprisonment; Davis v. Capper, 10 B. & C. 28; the warrant in such a case being deemed wholly void. But whether the time be unreasonable or not, is a question entirely for the jury, in any action against the magistrate as for false imprisonment. Cave v. Mountain, 9 Law J. 90 m. 1 Man. & Gr. 257. Where a magistrate committed a prisoner for re-examination for fourteen days, without a sufficient cause, and in an action by the prisoner for false imprisonment, the jury found the commitment to have been boná fide, and that it was not from any improper motive, but that it was for an unreasonable time,-the court held the magistrate liable. Davis v. Capper, 10 B. & C. 28. And see S. C. 4 Car. & P. 134. So, where a prisoner, apprehended for some disorderly conduct on Sunday evening, was confined in a lock-up that night, and as the constable was taking him the next day to a magistrate, he met the magistrate in the street, told him the matter, and the magistrate ordered him to take the prisoner back, and he would see him on the morrow, which was done accordingly: Patteson, J. held that the magistrate was not warranted in doing this, and subjected himself to an action for false imprisonment by doing so; he should either have gone into the matter on the Monday, or have desired the prisoner to be taken before some other magistrate. Edwards v. Ferris et al., 7 Car. & P. 542. The following may be the form of the com. mitment for re-examination : Berkshire:-E. F., esquire, one of Her Majesty's justices of the peace for the said county, to the constable of - in the said county, and to the keeper of the [common gaol] at said county: in the "These are to command you the said constable, in Her said Majesty's name, forthwith to convey and deliver into the custody of the said keeper of the said common gaol, the body of A. B. charged this day before me, the said justice, on the oath of C. D. on suspicion that he the said A. B. [on at," &c. describing the offence, as in the warrant for apprehension:] "But inasmuch as E. F., a material and necessary witness against the said A. B., resides at, a distance of miles from the said dwelling-house of the said C. D., [or as the case may be,] and he the said C. D. hath not been able to procure the attendance of the said E. F., but will use his best endeavour to do so on the day of instant: You the said keeper are hereby required to receive the said A. B. into your custody in the said common gaol, until next, the when you are hereby required to bring the said A. B. before me in the said county, or before such other of Her Majesty's justices of the peace for the said county, as shall be then and there present, to be re-examined and further dealt with according to law. Herein fail you not. Given under my hand and seal, day of - in the year of our Lord at the day of " instant, The party thus committed for re-examination, is not entitled to demand copies of the depositions, as far as they have been taken, under stat. 6 & 7 W. 4, c. 114. R. v. Fletcher, 13 Law J. 67 m. see post, p 297. Upon the day appointed by the commitment, the keeper of the prison will cause the accused to be brought before the committing justice, who will then proceed in the examination of the witnesses, in the manner already mentioned. Dying declarations.] The dying declarations of a deceased person are evidence against a prisoner, in cases where the cause of the death of the deceased is the subject of inquiry, and the circumstances of the death the subject of the dying declaration. R. v. Mead, 2 B. & C. 605. R. v. Lloyd, Williams & Roberts, 4 Car. & P. 233. And it must appear to have been made at a time, when the deceased was perfectly aware of his danger, and entertained no hope of recovery. See 2 Arch. Peel's Acts, 93, 94. R. v. Crockett, 4 Car. & P. 544. Bonner, 6 Car. & P. 386. R. v. Foster, Id. 325. R. v. R. v. Spils bury et al., 7 Car. & P. 187. R. v. Fagent, Id. 238. Woodcock, 1 Leach, 500. R. v. John, 1 East, P. C. 357. R. v. R. v. Howell et al., Car. & K. 689. But it is only in cases where the deceased, if he had lived, could be received as a witness, that this evidence is receivable; and therefore the dying declarations of a child of four years old, were holden not to be admissible. R. v. Pike, 3 Car. & P. 598. If this declaration be in writing, signed by the deceased, it ought to be produced and proved; the judge at the trial would not receive parol evidence of it. R. v. Gay, 7 Car. & P. 230. Examination of the accused, and his confession.] The manner and form of taking the examination of the accused, we have already treated of, ante, p. 288. Care should be had to take it down, as nearly as possible in the words the prisoner uses, whether it amount to a confession or not, and to return it to the assizes or sessions along with the depositions. When the magistrate asks a prisoner whether he has any thing to say in his defence, he should in fairness, at the same time, state to him that he is not to expect any favour from confessing, but that all he says will be taken down, and read in evidence against him at his trial; also, if any threat have previously been holden out to him, the magistrate ought to caution him not to be influenced by it, after which it should be left entirely to the prisoner's own discretion, whether he will make any statement or not; he should not be pressed to do so, nor dissuaded from doing it. See R. v. Green, 5 Car. & P. 312. It is true that, in strictness, a confession obtained by means of questions from the magistrate, may be read against a prisoner at his trial; R. v. Ellis, Ry. & M., N. P. C. 432; yet such a mode of obtaining it is not very commendable, and should be avoided. So stating that "the prisoner admits," &c. is an improper way of taking a prisoner's statement, although not of itself an objection to its being received in evidence against him; R. v. Roche et al., Car. & M. 341; the words he used should be stated. If any inducement, by promise of favour, or by threat, be held out to the prisoner-as by telling him that he had better tell all he knows; R. v. Kingston, 4 Car. & P. 387; or that he had better tell where he got the property; R. v. Dunn, 4 Car. & P. 543; "You had better split, and not suffer for all of them;" R. v. Thomas 6 Car. & P. 353; "it would have been better if you had told at first;" R. v. Walkley & Clifford, 6 Car. & P. 175; "that unfortunate watch has been found, and if you do not tell me who your partner was, I will commit you to prison as soon as we get to Newcastle;" R. v. Parratt, 4 Car. & P. 570; "it is of no use for you to deny it, for there are the man and boy who will swear they saw you do it ;" R. v. Mills, 6 Car. & P. 146; or the like:-any confession the prisoner |