as not containing a charge of any specific offence. (a) The information in this case was considered as for an ordinary offence, committed within our own jurisdiction. But it is no objection to the information and complaint on which the Magistrate issues his warrant for the arrest of the party, in the first instance, that the complainant was not an eye-witness of the facts to which he deposes, or that they are stated on information and belief; at least, the offender may be lawfully brought before a Justice, and detained a reasonable time, until the proper evidence can be produced. (b)

In Re Kermott, (c) a question was raised, whether a committing Magistrate could detain a prisoner on evidence amounting only to a ground of suspicion, for the purpose of other evidence being imported into the case, so as to bring it within the Treaty; but, per Sullivan, J. (d), neither the Treaty nor the Statutes contemplate the surrender of an accused person upon mere suspicion. However the law may be on this point, there is no doubt of the Magistrate's power to detain the prisoner when the evidence is clear and satisfactory as to his guilt, and this even although he has been arrested upon a void warrant. Thus, where a prisoner was committed for extradition, and a Habeas Corpus and Certiorari for his discharge obtained, it was held that the material question was, being in custody, whether a sufficient case was made out to justify his commitment for the crime charged; that it was immaterial that the original information, warrant, etc., were irregular and defective, if, on the hearing, sufficient appeared to justify the commitment; that it would be absurd to discharge the prisoner because the

(a) Reg. v. Bennet H. Young; the St. Alban's Raid.

(b) Re Anderson, 20 U. C. Q. B. 151, per Robinson, C. J.; and see Reg. v. Reno and Anderson, 4 U. C. P. R. 287.

(c) 1 Chr. Rep. 253.

(d) Ib. 256.

warrant might be void, when the evidence, on the hearing, would justify re-arresting him the next moment, and that the commitment must therefore be upheld. (a)

In Re Anderson, (b) it was held that, when a person is brought before the Court upon a writ of Habeas Corpus, and the warrant of commitment upon which he is detained appears on its face to be defective, the Court before whom the prisoner is brought has no authority to remand him, and that such power is only possessed by the Court in virtue of its inherent jurisdiction at common law, and does not extend to proceedings under the Extradition Treaty and Statutes. But it has been held in Quebec that a Judge of Sessions, when a prisoner is brought before him on the original warrant of arrest, has power to remand under the Treaty and Statutes; and when the remand appointed no day for the further examination of the prisoner, and an application was made for a Habeas Corpus (before the eight days after the remand had expired), (c) on this ground, and on the ground that the Judge had no power to remand, the writ was refused, the Court holding that the power to remand was essential to the performance of the Magistrate's duties, and that the irregularity in not fixing the day was unimportant. (d) We next proceed to consider the evidence by which the charge before the Magistrate is to be sustained.

The provision in the Statute as to the evidence of criminality being sufficient to justify the apprehension and committal for trial, if the offence had been committed here, merely furnishes a test as to the kind of evidence required. (e) So far as regards the means of proof, there can be no doubt that it is our law which must

(a) Ex parte G. H. Martin, 4 C. L. J. N. S. 198.

(b) 11 U. C. C. P. 1.

(c) See 32 & 33 Vic., c. 30, s. 41.

(d) Reg. v. Bennet H. Young; the St. Alban's Raid, 15. (e) Re Warner, 1 U. C. L. J. N. S. 18, per Hagarty, J.

govern, according to the provision in the Statute. If, for instance, the law of the States, or any of them, should admit a confession extorted from a party by violence or threats, to be used against him on a charge of an offence coming within the provisions of the Treaty, such evidence could not be admitted here. (a)

The Judge, or other person acting, may proceed upon original viva voce testimony, in like manner as "if the crime had been committed in this Province." He may, however, also receive copies of the depositions on which the original warrant was issued in the United States, in evidence of the criminality of the accused. (b) But as the 31 Vic., c. 94, s. 3, is an enabling Act, there is no obligation on the part of the prosecutor to produce such depositions. (c) In construing and applying the third section of the above Act, which renders copies of the depositions on which the original warrant was granted in the United States admissible here, we must look at the spirit of the provision, not the mere letter, and in the language of our Interpretation Act, 31 Vic., c. 1, thirtyninthly, p. 64, we must give it such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act, and of such provision or enactment, according to their true intent, meaning, and spirit.

What the section intended was, that any depositions made in the United States, before proper authority, and upon which a warrant issued for the arrest of the accused, should be received as evidence of his criminality, on the hearing before the Magistrate investigating the charge. The main object contemplated by the enactment was to

(a) Re Anderson, 20 U. C. Q. B. 169, per Robinson, C. J.

(b) Re R. B. Caldwell, 6 C. L. J. Ñ. S. 227, 5 Ú. C. P. R. 217, per A. Wilson, J. (c) Ib. 227, per A. Wilson, J.

sanction the use of depositions, and to avoid the necessity of bringing the deponents here; and the referring to or connecting the depositions with the warrant in this section was for the purpose of ensuring that they should be such depositions as would be taken before competent authority, and in relation to the particular crime and the offence specified in the foreign warrant. (a)

In this case, it was held that certified copies of depositions, on which the warrant issued in the United States, after proceedings had been initiated in Canada, and after the arrest in Canada, were admissible in evidence before the Magistrate. (b) But under the third section of this Statute, (c) the depositions that may be received as evidence of the criminality of the prisoner must be those upon which the original warrant was granted in the United States, certified under the hand of the person issuing it, and not depositions taken subsequently to the issue of the warrant, and not in any way connected therewith. (d) And as the Statute permits depositions taken in a foreign court to be used in lieu of oral testimony, when the case depends wholly upon such depositions, we must be strict in seeing that they are depositions coming clearly within the meaning and provisions of the section. (e)

These depositions may be used when the warrant for arrest actually issues in the United States. (f) An affidavit sworn before a Justice of the Peace in the United States, not being a copy of any original deposition, properly certified, is not admissible as evidence, nor is the objection cured by the consent of the prisoner's counsel. (g) The

(a) Ex parte G. H. Martin, 4 C. L. J. N. S. 200, per Morrison, J. (b) Ib. 198; see also Reg. v. Morton, 19 U. C. C. P. 9.

(c) 31 Vic., c. 94.

(d) Reg. v. Robinson, 6 C. L. J. N. S. 98, 5 U. C. P. R. 189.

(e) Ib. 99 per Morrison, J.

(f) Reg. v. Morton, 19 U. C. C. P. 18, per Hagarty, J.

g) Re Anderson, 20 U. C. Q. B. 183, per McLean, J.

evidence of a professional gentleman as to the law of the United States is properly admissible before the Magistrate. (a)

In the St. Alban's Raid case, the examination of the witnesses for the prosecution was conducted in the manner prescribed by the 32 & 33 Vic., c. 30, s. 29 et seq., as to offences committed here. The prisoner was allowed to cross-examine the witnesses, and the depositions certified that he had the opportunity of doing 80. The voluntary statement of the prisoner was taken, as by s. 31 of this Statute, at the request of the Crown counsel. The Judge, however, declined to express an opinion as to its legality. (b)

The sufficiency of the evidence of criminality to justify the apprehension and committal for trial of the person accused is to be determined by the Judge or Magistrate, upon his view of the transaction, as described in the testimony, taken in connection with the law of the foreign State where it occurred, as regards the offence in question, and also with reference to the law which governs our own Courts in regard to the sufficiency of evidence —that is, its sufficiency in point of legal character, and its adequacy to support the charge of the offence against the law of the foreign country. (c)

The functions of the Magistrate are not simply ministerial in this respect. He must hear the evidence, and exercise a proper judicial discretion as to whether the facts establish a case for the rendition of the prisoner. (d) It is very important to determine the extent to which evidence in defence may be properly received before the Magistrate on behalf of the prisoner. It is submitted

(a) Ib. 172, per Robinson, C. J.

(b) See, also, the Chesapeake case, on these points.

(c) Re Anderson, 20 U. C. Q. B. 124, Robinson, C. J.

(d) Reg. v. Bennet H. Young; the St. Alban's Raid, 197, per Smith, J.; the Chesapeake case, 46.