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11 & 12 Vict. c. 42, s. 20, enacts,—" that it shall be lawful 11 & 12 Vict. " for the justice or justices before whom any such witness shall . 42. ** be examined as aforesaid to bind by recognizance (O 1) the bind over

Justices to “ prosecutor 1 and every such witness to appear at the next prosecutor “ court of oyer and terminer or gaol delivery, or superior court

and witnesses

by recogni" of a county palatine, or court of general or quarter sessions zance. “s of the peace, at which the accused is to be tried, 2 then and Sect. 20. " there to prosecute, -or to prosecute and give evidence,-or “ to give evidence, as the case may be,-against the party " accused, 3-which said recognizance shall particularly specify “the profession, art, mystery, or trade of every such person “ entering into or acknowledging the same, together with his “ christian and surname, and the parish, township, or place " of his residence, and if his residence be in a city, town, or “ borough, the recognizance shall also particularly specify the " name of the street, and the number (if any) of the house in “ which he resides, and whether he is owner or tenant thereof

or a lodger therein ;-and the said recognizance, being duly ** acknowledged by the person so entering into the same, shall " be subscribed by the justice or justices before whom the " same shall be acknowledged, and a notice (O 2) thereof,

signed by the said justice or justices, shall at the same time “ be given to the person bound thereby :

“And the several recognizances so taken, together with the Depositions, “ written information (if any), the depositions, the statement recogni.

zances, &c. " of the accused, and the recognizance of bail (if any) in every to be trans“ such case, shall be delivered by the said justice or justices or mitted to the

court in which “ he or they shall cause the ame to be delivered to the proper trial is to be “ officer of the court in which the trial is to be had, before had.


1 If the owner of goods, &c., is unwilling to prosecute, the justices may bind over the constable or other person to do so, and bind over the owner to give evidence, and commit the latter for refusing to enter into the recognizance; but a prosecutor only, who does not give evidence, cannot be committed under this section, nor indeed under any other. The manner of stating the recognizance to the persons bound will be found in Note 4, Vol. I. p. 169.

2 What cases are triable at the assizes and what at the quarter sessions are shown in the fourth column of Chap. II. of this Part, containing the tabular view of the offences. For the jurisdiction of the quarter sessions, see post, pp. 973, 974; and see Note 45, ante, p. 964, for observations hereon.

3 Witnesses called by the accused are also to be bound" to appear and give evidence at the said trial," and they may be committed in default (30 & 31 Vict. c. 36, ss. 3, 4, ante, pp. 958, 959).

may be

11 & 12 Vict. “at the opening of the said court on the first day of the sitting C. 42.

“thereof, or at such other time as the judge, recorder or jusSect. 20.

“ tice who is to preside in such court at the said trial shall

" order and appoint:Witnesses re- “Provided always, that if any such witness shall refuse to fusing to

" enter into or acknowledge such recognizance as aforesaid, it enter into recognizances

" shall be lawful for such justice or justices of the peace, by

“ his or their warrant (P. 1), to commit him to the common committed.

“ gaol or house of correction for the county, riding, division,
“ liberty, city, borough or place in which the accused party is
" to be tried, there to be imprisoned and safely kept until after
" the trial of such accused party, unless in the meantime such
“ witness shall duly enter into such recognizance as aforesaid
" before some one justice of the peace of the county, &c., in

16 which such gaol or house of correction shall be situate :
If accused "Provided, nevertheless, that if afterwards, from want of
discharged, « sufficient evidence in that behalf or other cause, the justice
witness also
to be dis- or justices before whom such accused party shall have been
charged. “ brought shall not commit him or hold him to bail for the

“ offence with which he is charged, 4 it shall be lawful for
“ such justice or justices, or any other justice or justices of
" the same county, &c., by his or their order (P. 2) in that
“ behalf, to order and direct the keeper of such common gaol

house of correction where such witness shall be so in cus-
“tody to discharge him from the same, and such keeper shall
" thereupon forthwith discharge him accordingly."

In the case of offences upon poor persons, under 24 & 25 Vict. c. 100, s. 26, the clerk or other officer of the union, or if not in a union one of the overseers, may, if the two justices taking the examinations deem it necessary and so certify, be

bound over to prosecute (see ante, pp. 965, 966). 5 & 6 Vict. The jurisdiction of the quarter sessions to try offenders for c. 38.

indictable offences is principally to be gathered from the proJurisdiction of the quarter hibition to try certain offences contained in the 5 & 6 Vict. sessions in

c. 38; in some cases by express provisions in the statutes indictable offences.

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4 In ordinary cases witnesses are not called upon to enter into a recognizance to give evidence unless the accused has been previously committed or held to bail; but probably this proviso is intended to apply to cases under sect. 22, ante, pp. 961, 962, Note 42, where the accused is remanded to another county to complete the depositions, and those witnesses whose evidence is completed, having been required to appear on the trial, refused to enter into the necessary recognizance, and were committed to prison.

c. 38.

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creating the offences; and in others by the common law.5 5 & 6 Vict. These prohibited offences are consequently triable at the assizes only. Section 1 of that statute enacts,—"That

“neither the justices of the peace acting in and for any county, "riding, division or liberty, nor the recorder of any borough, “shall at any session of the peace, or at any adjournment “thereof, try any person for any treason, murder or capital felony, or for any felony which when committed by a person “not previously convicted of felony is punishable by transpor"tation beyond the seas (for which must now be read 'punish“able with penal servitude,' 20 & 21 Vict. c. 3, ss. 2, 6] for life; Sessions not or for any of the following offences (that is to say),

to try certain

offences. 1. Misprision of treason : 2. Offences against the Queen's title, prerogative, person, or

government, or against either House of Parliament: 3. Offences subject to the penalties of præmunire : 4. Blasphemy, and offences against religion : 5. Administering or taking unlawful oaths : 6. Perjury and subornation of perjury: 7. Making or suborning any other person to make a false oath,

affirmation or declaration, punishable as perjury or as a mis

demeanor : 8. Forgery : 9. Unlawfully and maliciously setting fire to crops of corn, grain

or pulse, or to any part of a wood, coppice or plantation of

trees, or to any heath, gorse, furze or fern: 10. Bigamy, and offences against the laws relating to marriage : 11. Abduction of women and girls : 12. Endeavouring to conceal the birth of a child: [13. Offences against any provisions of the laws relating to bank

rupts and insolvents :] 6 14. Composing, printing, or publishing blasphemous, seditious or

defamatory libels : 15. Bribery : 16. Unlawful combinations and conspiracies, 7 except conspiracies

or combinations to commit any offence which such justices or


5 They have also jurisdiction to try such offences as are within their powers, when committed on the high seas (see Reg. v. Peel, in Note 17, ante, p. 904).

6 This paragraph has been repealed by “T? Debtors Act, 1869," 32 & 33 Vict. c. 62, 6. 20, and the quarter sessions have now jurisdiction over these offences.

7 An indictment for conspiracy in the general form to obtain money by false pretences is within the jurisdiction of the quarter sessions. Latham 1. Reg., 9 Cox, C. C. 516; 10 Law T., N. S. 677.

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recorder respectively have or has jurisdiction to try when

committed by one person : 17. Stealing or fraudulently taking, or injuring or destroying, re

cords or documents belonging to any court of law or equity

or relating to any proceeding therein : 18. Stealing or fraudulently destroying, or concealing, wills or

testamentary papers, or any document or written instrument being or containing evidence of the title to any real estate,

or any interest in lands, tenements or hereditaments. This enactment now applies to the justices in general or quarter sessions within the limits of the Central Criminal Court as established by the 4 & 5 Will. 4, c. 36, viz., the cities of London and Westminster, the liberty of the Tower of London, the borough of Southwark, and the counties of Middlesex, Essex, Kent and Surrey (see 14 & 15 Vict. c. 55, s. 13).

Before the 11 & 12 Vict. c. 42, when any of the witnesses were minors or married women, it was usual to require the father or husband or other competent person to become bound for their appearance.8 This is still the practice in some districts, but in the City of London Justice Rooms, when no relative or husband, or other person is present, the witness's own recognizance is taken for his or her appearance, "on pain " of imprisonment.”

11 & 12 Vict. c. 42. Binding over minors and married women.

FORMS. [Vide O 1, 2, P 1, 2, Nos. 64–69, Oke's "Formulist," 6th ed. pp. 497–501.]

8 Vide Note 1, ante, p. 971. There seems to be no power to call upon a witness to find sureties for his appearance, whether an infant or not, or a married woman; and indeed an infant may enter into a recognizance, for in Ex parte Williams (13 Price, 670), it was held that infancy was no ground for discharging a forfeited recognizance (15 J. P. 230). If surety is taken for a witness, the bail may at any time surrender him, if they think he will not attend (1 Hale's Sum. 96 ; 2 Hawk. P. C. c. 15, 8. 3, pp. 138, 139, of 8th ed. by Curwood). The mode of proceeding will be the same, with slight alterations, as on surrender of the accused by his bail, post, p. 980. The witness may doubtless be committed for not entering into the recognizance, although he was not summoned to give evidence.


1. On Inquiries before Justices.
2. On Removal of Indictments before Verdict.

1. On Inquiries before Justices. Any one justice may take bail for any indictable offence One justice (except treason before or after committal.

may take bail. The power of a magistrate to accept or refuse bail, even in The taking of cases where the accused has a right to be bailed, is a judicial bail a judicial

duty. duty, and an action will not lie against him for refusing to take bail in such cases without proof of express malice, even though the sureties tendered are found by the jury to have been sufficient (Linford v. Fitzroy, 18 L. J. (N. S.) M. C. 108; 13 Q. B. 240).

A great deal of misapprehension seems of late to have In what cases existed on the subject of the cases in which justices were re- in which

discretionary, quired to admit accused persons to bail ; and it was generally compulsory. supposed that a magistrate had a discretion as to bail in all felonies, and was bound to admit to bail in all misdemeanors. This is erroneous. As far as the duty of the magistrate is concerned (and the judges have of late been guided by the same considerations) the question is governed solely by the 11 & 12 Vict. c. 42, s. 23, which we have given in extenso at pp. 979, 980.

In coming to a decision whether an accused should or should Principles to not be admitted to bail, it may be suggested that the only pur- in deciding as

guide justices pose of a committal to prison before trial being to ensure the to accepting

bail. appearance of the accused person at the time and place when and where he is to be tried,” justices in performing this important judicial duty should consider the circumstances of each case with this object only in view. This duty involves inquiry, in which discretion must be exercised, and in some cases of misdemeanor, discretion under circumstances of much nicety; and therefore no general rule can be laid down, which is to depend upon the facts of each case (see per Denman, C. J., in

, Linford v. Fitzroy, supra). Usually, however, it will be sufficient for the justices to look at the nature and magnitude of the charge, the position in life of the accused, the cogency of the evidence against him, and the probable severity of the punishment likely to follow a conviction; and if they then

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