and convey such offender before the judge or justice of the peace who issued the warrant, or before some other justice of the peace of the same county.

It is said that, where an arrest has been made without warrant, the constable may, in some cases, take the party's word for his appearance before the justice. And this is usually done where the charge is for an assault of a trifling nature and the defendent is of good repute and there is no probability of his absconding. 1. Chit. Crim. Law, 59.

If a prisoner who has been arrested do escape, through the negligence of the officer, he may, upon fresh pursuit, retake the prisoner at any time, whether he find him in the same or a different county, without raising hue and cry, because, as the liberty obtained by the prisoner is wholly owing to his own wrong, there is no reason why he should be allowed to derive any advantage from it. 2 Hawk., 81. 2 Hale, 115.

It has been held that, if any officer or other person hath arrested a man by virtue of his warrant, and then takes his promise that he will come again to him such a day, to go before the justice with him according to his warrant, and so letteth the party go, who comes not again at the day appointed, the officer cannot arrest or take him again by force of the same warrant, for that this was by the consent of the officer. Dalt. Justice, 478. Yet, Mr. Chitty says it would seem that, as the public arc interested in the offender's being brought to justice, there is no well-founded objection to such second arrest. 1 Chit. Crim. Law, 59, 61. i Burn's Justice, 110.

It appears to be settled that, if the constable shall voluntarily suffer the prisoner to escape, who again returns into the custody of the constable, he may lawfully detain him, in pursuance of his original warrant. 1 Chit. Crim. Law, 60.

A rescue is the forcibly and knowingly freeing another from an arrest or imprisonment. 4 Bl. Com., 131. It is necessary that the rescuer should have knowledge that the person whom he sets at liberty has been apprehended for a criminal offence, if he be in the custody of a private person; but, if he be under the care of an officer, then he must take notice of it at his peril. 1 Hale, 606.

The mere prevention of the arrest of a person for a criminal offence is a misdemeanor. 1 Chit. Crim. Law, 62. And, after the officer has made an arrest, it is provided, by sec. 100 of the Crim. Code, that, "If any person shall aid or assist any prisoner to attempt to escape, or shall rescue or attempt to rescue any prisoner from the custody of any sheriff, deputy sheriff, coroner, constable, officer, or other person, who shall have the lawful custody of such prisoner, every person so offending shall, upon conviction thereof, be fined not exceeding one thousand dollars, and imprisoned in the county jail not exceeding one year.

"SEC. 101. If any sheriff, coroner, jailer, keeper of a prison, constable, or other officer, or person whatever having any prisoner in his legal custody, before conviction, shall voluntarily suffer or permit such prisoner to escape or go at large, every such officer or persons so offending shall, on conviction, be fined in any sum not exceeding one thousand dollars, and imprisoned in the county jail for any term not exceeding six months: Provided, That if such prisoner be in custody charged with murder or other capital offence, then such officer or person suffering or permitting such escape, shall be punished by confinement in the penitentiary for any term not less than one year, nor more than ten years. A negligent escape of a person, charged with a criminal offence, before conviction, from the custody of any of the aforesaid officers shall be deemed a misdemeanor, and punished by fine, not exceeding five hundred dollars."

When the prisoner is brought before the justice, he is still considered in the custody of the officer until he has been either discharged, bailed, or committed to prison. 2 Hale, 120. And he may keep his warrant for his own justification, and need only return to the justice what he has done in pursuance of its commands. 1 Chit. Crim. Law, 60.

It is usual, however, in practice, when the officer brings the prisoner before the justice, to return the warrant to the justice, so that the prisoner may thus be informed of the precise charge upon which he has been apprehended.

2. By an officer without warrant.

Arrests, by officers without warrant, may be made,

1. By a justice of the peace, who may himself apprehend or cause to be apprehended, by word only, any person committing a felony or breach of the peace in his presence. 4. Bl. Com., 292. Where the justice of the peace is not present when the crime has been committed, he ought not, upon mere discretion, to send the party accused to prison, but upon due consideration of the evidences adduced before him. And it seems that, in case a justice has notice, or a particular knowledge, that a person has been guilty of an offence, yet it is not a sufficient ground for him to commit the criminal; but, in that case, he is rather a witness than a magistrate, and ought to make oath of the fact before some other justice, who should thereupon act the official part by granting a warrant to apprehend the offender, it being more fit that the accuser should appear as a witness than act as a magistrate. 1 Chit. Crim. Law, 25.

2. By sheriffs; who are not only enabled, but enjoined, to arrest felons, and all persons are required to assist them therein, when requested, and they are respectively punishable, by fine and imprisonment, in case they neglect their duty.

The sheriff may, also, arrest a person suspected of a capital offence whose guilt is not certain. 1 Chit. Crim. Law, 26.

And, if the sheriff be assaulted in the execution of his duty, he may apprehend the offender and keep him in prison for a reasonable time, to be carried before a justice of the peace to be committed or find bail to answer the offence. 1 Saund., 77. 1 Taunt. Rep., 147.

3. A coroner is a conservator of the peace, in relation to all felonies, and may arrest, or cause another to arrest, any felon. 1 Chit. Crim. Law, 26.

4. By constables. A constable has great original and inherent authority with regard to arrest. He may, without warrant, arrest any one for a felony or a breach of the peace committed in his view and carry him before a justice of the peace. And, in case of felony actually commited, or a dangerous wounding whereby felony is like to ensue, he may, upon probable suspicion, arrest the felon, and, for that purpose, is authorized (as upon a justice's warrant) to break open doors, and even kill the felon, if he cannot otherwise be taken; and, if he or his assistant be killed in making such arrest, it will be murder in all concerned. 4 Bl. Com., 292.

And a constable, upon a reasonable charge of felony, may justify an arrest without warrant, although no felony has been committed, because he cannot judge whether the party be guilty or not till he come to his trial, which cannot be till after his arrest; and it is said that, if a man charges another with a felony and requires an officer to take him into custody and carry him before a justice, it would be most mischievous that the officer should be bound first to try and, at his peril, exercise his judgment on the truth of the charge. He that makes the charge should alone be answerable. The officer does his duty in conveying the accused before a justice who is authorized to examine and commit, or discharge. 1 Chit. Crim. Law, 22. 2 Stark. Ev., 439.

And a constable may arrest any person who breaks the peace in his own view, and keep him in his house, or some secure place, till he can bring him before a justice. 1 Hale, 587. In general, when an affray takes place in his presence, he may either keep the parties in custody till it is over, or he may carry them immediately before a justice. 1 Chit. Crim. Law, 20. And it would seem that, even upon a charge of a breach of the peace not committed in the view of the constable, if he arrest the party, and no breach of the peace was committed, the person who preferred the charge alone is liable. 2 Hale, 90. Though it has been held, that a constable cannot arrest for an affray or breach of the peace not committed in his view. 1 East. P. C., 305. 1 Chit. Crim. Law, 23.

If the constable has no warrant, but makes the arrest by virtue of his office as constable, it would be well to inform

the party by what authority he makes the arrest; and it is sufficient to notify that he is constable, or that he arrests in the name of the people. 1 Hale, 582.

It is advisable, in all cases not requiring immediate interference, for a, constable or other officer to act under a

warrant.

3. By a private person without a warrant.

Any private person that is present when any felony is committed is bound, by the law, to arrest the felon, on pain of fine and imprisonment if he escape through his negligence. 2 Hawk., 74.

But a private person cannot arrest for an offence inferior to felony not committed within his view. 2 Stark. Ev., 441. He may justify breaking open doors upon following such felon; and, if they kill him, provided he cannot be otherwise taken, it is justifiable; though if they are killed in endeavoring to make such arrest, it is murder. 2 Hale, 77. Upon probable cause of suspicion, also, a private person may arrest the felon or other person so suspected, and, if it can be proved that a felony has been committed by some person, and there was a reasonable and probable ground for suspicion, he will not be liable to an action, though it shall afterwards be proved that the party imprisoned was innocent. 1 Chit. Crim. Law, 17. 2 Stark. Ev., 441. But a private person cannot justify breaking open doors to apprehend another on probable suspicion of felony; and if he do, and either party is killed in the attempt, it is manslaughter, and no more. 2 Hale, 82. It is no more, because there is no malicious design to kill, but it amounts to so much, because it would be of most pernicious consequence if, under pretence of suspecting felony, any private person might break open a house or kill another. 4 Bl. Com., 293.

With respect to interference and arrests in order to prevent the commission of a crime, any person may lawfully lay hold of a person whom he may see on the point of committing a felony, or doing any act which will manifestly endanger the life or person of another, and may detain him until it may be reasonably presumed that he has changed his purpose. But, where he interferes to prevent others from fighting, he should first notify his intention to prevent the breach of the peace. 1 Hale, 589. 1 East. P. C., 304. 2 Stark. Ev., 441. Any one may justify breaking and entering a party's house and imprisoning him, to prevent him murdering his wife, who crics for assistance. 1 Chit. Crim. Law, 18.

A private person who has apprehended another for felony. may deliver the prisoner into the hands of a constable, or cause him to be brought before a justice of the peace. 2 Hale, 77, 81.

4. By an hue and cry.

Hue and cry is the old common law process of pursuing, with horn and voice, all felons and such as have dangerously wounded another. 4 Bl. Com., 293.

By the 2d sec. of the act of Jan. 6, 1827, it is provided that, "When any felonious offence shall be committed, public notice thereof shall be immediately given, in all public places near where the same was committed, and fresh pursuit shall be forthwith made after every person guilty thereof, by sheriffs, coroners, constables and all other persons, who shall be by any of them commanded or summoned for that purpose: every such officer who shall not do his duty in the premises shall be punished by fine, in a sum not exceeding one hundred dollars, or imprisonment not exceeding three months." Gale's Stat., 238.

Hue and cry may be raised either by precept of a justice of the peace, or by a peace officer, or by a private man that knows of a felony. 4 Bl. Com., 294. For levying hue and cry, although it is a good course to have the warrant of a justice of the peace, when time will permit, in order to prevent causeless hue and cry, yet it is not always convenient, for the felon may escape before the warrant can be obtained. 2 Hale, 99. And, by the above statute, it does not appear to be necessary that there should be a warrant.

When any felony is committed, or any person is greviously and dangerously wounded, or any person assaulted and offered to be robbed, either in the day or at night, the party grieved or any other, may resort to the constable and, 1. Give him such reasonable assurance thereof as the nature of the case will bear. 2. If he knows the name of him that did it, he must tell the constable the same. 3. If he knows it not, but can describe him, he must describe his person, or his habit, or his horse, or such circumstances as he knows, which may conduce to his discovery. 4. If the thing be done in the night, so that he knows none of the circumstances, he must mention the number of the persons or the way they took. 5. If none of all these can be discovered, as where a robbery, or burglary, or felony is committed in the night, yet they are to acquaint the constable with the fact, and desire him to search in his county for suspected persons, and to make hue and cry after such as may be probably suspected, as being persons vagrant in the same night; for many circumstances may, ex post facto, be useful for discovering a malefactor, which cannot be at first found. 2 Burn's Justice, 650. 2 Hale, 100.

And it is the duty of the constable to raise the power of the county as well in the night as in the day for the prosecution of the offender. 2 Burn's Justice, 657.

If the hue and cry be upon a robbery, burglary, manslaughter, or other felony committed, but the person that did the fact