is also to raise all the neighbouring vills, who are all to pursue the hue and cry with horsemen as well as footmen. 2 Hale's Hist. 101.

As to the fourth point, what the persons who pursue may. What the pacjustify doing] Hereon Sir Mathew Hale conceives the law to suers may be as follows:

(1.) That in case of a hue and cry once raised and levied pon supposal of a felony committed, though in truth there was no felony committed; yet those who pursue hue and cry may arrest, and proceed as if a felony had been really committed. 2 Hale's Hist. 101.

And therefore the justification of an imprisonment by a person upon suspicion, and by a person, especially a constable, upon hue and cry levied, do extremely differ; for in the former there must be a felony averred to be done, and it is issuable; but in the latter, viz. upon the hue and cry, it need not be averred; but the hue and cry levied upon an information of a felony is sufficient, though perchance the information were false; and therefore an averment of a felony committed, in case of a justification of an imprisonment upon hue and cry, is not necessary; the reasons whereof are, 1. Because the constable cannot examine the truth or falsehood of the suggestion of him who first levied it, for he cannot administer him an oath; and if he should forhear his pursuit of the hue and cry till it be examined by a justice of peace, the felon might escape, and the pursuit would be lost and fruitless. 2. Because the constable is by several acts of parliament compellable to pursue hug and cry, and is punishable, as those of the vill, if they do it not. 3. Because he that first raised a hue and cry where no felony is committed, viz. the person that giveth the false infor. mation, is severely punishable by fiae and imprisonment, if the information be false; and therefore if he raise hue and cry upon a person that is innocent, yet they that pursue the hue and cry, may justify the imprisonment of that innocent person, and the raiser is punishable; and by the same reason, if he give notice of a felony committed where there was in truth none. 2 Hale's Hist, 102.

(2.) If hue and cry be raised against a person certain for felony, though possibly he is innocent, yet the constables, and those that follow the hue and cry, may arrest and imprison him in the common gaol, or carry him to a justice of the peace, 2 Hale's Hist. 102.

(3.) If the person pursued by hue and cry be in a house, and the doors are shut, and refused to be opened upon demand of the constable, and notice given of his business, he may break open the doors; and this he may do in any case where he may arrest, though it be only a suspicion of felony; for it is for the king and commonwealth, and therefore a virtual non omiltuş is in the case; and the same law is upon a dangerous wound.

justify doing.

given, and a hue and cry levied upon the offender. 2 Hair't Hist. 102.

And it seems in this case, that if he cannot be otherwise taken, he may be killed, and the necessity excuseth the consta ble, 1 Hale's Hist. 102.

(4) Upon hue and cry levied against any person, or where any hue and cry comes to a constable, whether the person be certain or uncertain, the constable may search in suspected places within his vill, for the apprehending of the felons. 2 Hale's Hist. 103.

But though he may search suspected places or houses, yet his entry must be per ostia aperta; for he cannot break open doors barely to search, unless the person against whom the bue and cry is levied be there, and then it is true he may; therefore in case of such a search, the breaking open the door is at his peril, viz. justifiable, if he be there; but it must be always remembered that in case of breaking open a door, there must be first a notice given to them within of his business, and a demand of entrance, and a refusal, before doors can be bro ken. 2 Hale's Hist. 103.

(5.) If the hue and cry be not against a person certain, but by description of his stature, person, clothes, horse, and the like, the hue and cry doth justify the constable or other per son following it, in apprchending the person so described, whether innocent or guilty, for that is his warrant; it is i kind of process that the law allows, (not usual in other cases), viz. to arrest a person by description. 2 Hale's Hist. 103.

(6.) But if the hue and cry be upon a robbery, burglary, manslaughter, or other felony committed, but the person that did the fact is neither known nor described by person, ́clothes, or the like; yet such a hue and cry is good, as hath been said, and must be pursued, though no person certain be named or described. 2 Hale's Hist. 103.

And therefore in this case, all that can be done is, for those who pursue the hue and cry, to take such persons as they have probable cause to suspect; as for instance, such persons as are vagrants, that cannot give an account where they live, whence they are, or such suspicious persons as come late into their inn or lodgings, and give no reasonable account where they had been, and the like. 2 Hale's Hist. 103.

And here the justification of the imprisonment is mixed, partly upon the hue and cry, and partly upon their own sus picion; and therefore, I. In respect that it is upon hue and ery, there needs no averment that the felony was done; yet it must be averred that an information was given that the felony was done, if the arrest be by that constable that first received the information, and so raised the hue and cry; or if the ar rest were made by that constable, or those vills to whom the hue and cry came at the second hand, it must be averred

that such a hue and cry came to them, purporting such a felony to be done; but, 2. Also inasmuch as the hue and cry neither names nor describes the person of the felony,but only the felony committed, and therefore the arrest of this or that particular person, and so applied, is left to the suspicion and discretion of the constable or the people of the second or third vill; he that arrests any person upon such general hue and cry must aver that he suspected, and show a reasonable cause of suspicion. 2 Hale's Hist. 104.

The constable

But now by the statute of 7 Jac. 1. cap. 5, or any that come in his assistance, even in this case of hue and cry, may plead the general issue, and give the whole "matter of the justification in evidence;' for the pursuit of hue and cry, though performed by others as well as the constable, is principally the act of the constable of the vill, and the others are but his deputies or assistants within the precincts of his constablewick. 2 Hale's Hist. 104.

It seems also that they who are taken freshly, upon a hue Persons taken and cry are not bailable, because they are to be accounted on hue and amongst those who are under violent presumptions of guilt. cry not bail2 Hawk. c. 15. s. 41.

abic.

As to the fifth point, how the omission or neglect of doing How the neit is punished.] There can be no doubt but that both by the gleet of doing common law, as also by the several statutes which enjoin the it is punished. levying of hue and cry, they who neglect to levy one (whether officers of justice or others) or who neglect to pursue it when rightly levied, are punishable by indictment, and may be fined and imprisoned for such neglect. 2 Hale's Hist. 101.

And now by 8 Geo. 2. c. 16, Every constable, borsholder, or tythingman to whom notice shall be given, and every constable of the hundred, and every constable, horsholder, or ty thingman, within the hundred, or the franchises within the precinct thereof, wherein the robbery shall happen, as soon as the same shall come to his knowledge, either by notice from the party robbed, or from any other, to whom notice shall be given thereof pursuant to this or any other statute, shall with the utmost expedition, make fresh suit and hue and cry after the felon; and if any constable, borsholder, headborough, or tythingman, shall offend in the premises by refusing or nèglecting to make fresh suit and hue and cry, he shall forfeit 57. one moiety to the king, and the other moiety to him that will 'sue within six months. s. 11, 12.

II. Hue and cry in pursuance of the statutes,

The levying of hue and cry is, as has been before observed, enjoined by several acts of parliament; and to this purpose it is enacted, by stat. Westm. 1. 3 Ed. 1. c: 2.* That all shall

* Although some imagined hue and ery was grounded on this stalate, yet Coke says, that it was used long before, as appears even by this statute,

What Lund of robbery will

uake the hun

Ared liable.

be ready and appareled at the summons of sheriffs, and at the 'cry of the county to pursue and arrest felons as well with. in franchises as without; and if they do it not, and be thereof attaint, they shall make a grievous fine to the 'king.'

By stat. Ed. (de oficio coronatoris) hue and cry shall be levied for all murders, burglaries, men slain, or in peril to be slain, or otherwise is used in England; and all shall fol low the hue and steps as near as they can; and he that doth not, and is convict thereof, shall be attached to be before the justices in eyre.

By stat. Winton 13 Ed. 1. st. 2. c. 1, 'Proclamation shall be made in all counties, markets,fairs, and other places, that eve. ry county be so well kept, that immediately upon robberies and felonies committed, fresh suit be made from town to 'town.'

And by the same stat. cap. 2, If the country will not answer for the bodies of such offenders, the pain shall be such that every county, that is, to wit, the people dwelling in the county, shall be answerable for the robberies done, and also the damages; so that the whole hundred where the robbery shall be done, with the franchises, being within the precincts of "the same hundred, shall be answerable for the robberies done ; and if the robbery be done within the division of two hundreds, both the hundreds and the franchises within them shall an C swer it; and after that the felony or robbery is done, the coun. ty shall have no longer than forty days to agree for the robbe 6 ry or trespass, or else they shall answer for the bodies of the "offenders.'

This statute of Winton giving an action against the hundred it will be necessary to consider, 1. What kind of robbery it must be to make the hundred liable. 2. On what day or time of the day it must be committed. 3. What hundred shall be safd to be liable. 4. By whom the action is to be brought. 5. What notice must be given of the robbery. 6. Where the party must give bond for payment of costs, in case he does not prevail. 7. How oath is to be made of the robbery. 8. At what time the action is to be brought. 9. What evidence may be received in such action. 10. What shall excuse the hundred, 11. How the hundred is to be proceeded against, and the money recovered levied.

As to the first point,What kind of robbery it must be to make the hundred liable.] No robbery will make the hundred liable, but that which is done openly, and with force and violence,

which instead of introducing a new law, enforces obedience to that which was founded on the antient jaws of the realm. 2 Inst, 171.

and therefore the private stealing or taking any thing from the party, does not come within the statutes which make the hundred liable; because the hundred is not liable because they did not prevent the robbery, but because they did not apprehend · the robbers, which in private felonies, and of which they had notice, it would be difficult if not impossible for them to do. 7 Co. 6, 7. 2 Salk. 614. Style,527. Buller's Nisi Prius, 8vo. ed. 184.

So a robbery in a house, whether it be by day or by night, does not make the hundred liable. 7 Co. 6, 7. 3 Leon. 262. Cro. Jac. 496. Cro. Eliz. 753.

But if a person be assaulted in the highway, and carried into a house, and there robbed, it seems the hundred shall be liable; for otherwise the provision made by the statute would be eluded. 1 Sid. 263.

As to the second point, On what day or time of the day it When it must must be committed.] A robbery on the Sabbath day shall be committed. charge the hundred; and the pursuing of robbers who violate

the Sabbath is so far from being a profanation of that day, that it is a work of charity and justice. Cro. Jac. 496.

Yet if the party robbed be travelling, it is otherwise; for by 29 Car. 2. c.7, If any person which shall travel upon the Lord's day, shall be then robbed, no hundred shall be answerable; ne. vertheless the inhabitants, after notice, shall make fresh pursuit after the offenders, upon pain of forfeiting to the king as much money as might have been recovered against the hundred, if this law had not been made. s. 5.

But this statute only extends to the case of persons travelling; for in the case of Teshmaker v. Hund. Edmonton, where the plaintiff was robbed in going to church on a Sunday, he recovered. 1 Strange, 406. Comyn's Rep. 345.

If the robbery is committed in the night, the hundred is not chargeable, because they cannot be presumed to have notice thereof, so as to be able to apprehend the robbers. 7 Co. 6.

But yet it is not necessary that the robbery should be com. mitted after sun-rise, and before sun-set; for if there be as much day light at the time that a man's countenance may be discerned thereby, though it be before sun-rise or after sun-set, the hundred shall be liable, 7 Co. 6. Buller's Nisi Prius, 184.

So if robbers oblige the waggoner to drive his waggon from the highway by day, but do not take any thing till night; this is a robbery in the day time so as to charge the hundred. 1 Sider. 263.

As to the third point; What hundred shall be said to be lid. What hundred ble.] By the above stat. Winton, 3 Ed. I. c. 9, If the rob- liable.

bery be done within the division of two hundreds, both the hundreds and the franchises within them shall be answerable.'

If robbers assault a person in one hundred, and he flies into another, where he is pursued and robbed, the last hundred is liable. 2 Salk. 615.