ministerial. It is not so; some discretion is to be exercised by them, and even should they in such a case refuse bail, no action will lie against them if they appear to have acted without malice. In Linford v. Fitzroy (18 L. J. 108 M. C.), the plaintiff had been charged (prior to the passing of the 11 & 12 Vict. c. 42) with assaulting a constable in the execution of his duty, and he offered two sufficient sureties as bail, whom the defendant (a magistrate) refused to accept on the ground that on a previous occasion the plaintiff when bailed had absconded. Upon the trial, the jury found that the defendant refused sufficient bail, but that he did not act maliciously; and upon the case coming before the court above on the point of whether or not it was necessary for the plaintiff to prove express malice, the court held that the duty of a justice in accepting bail was essentially a judicial one; and that being so, he could not be made liable to an action for a mistake in doing or omitting to do any thing in respect of that duty, unless he could be fixed with malice, which in the case before them had been negatived by the jury.

Not to receive Bail upon a charge of Murder.— Although a discretion is given to justices to bail in all cases of felony without exception, they never think of admitting to bail upon a charge of murder, even when there is no coroner's inquisition finding murder against the accused, or where the charge upon the trial will evidently fail in being supported, the responsibility in a case of that serious nature being alone left with the superior judges of the land.

Number of Sureties.]-If the justices consent to take bail, they will state what sureties they will require, and to what amount. This is a matter entirely in their discretion, it being, however, borne in mind, that to demand excessive bail is unlawful, and so declared to be by the Declaration of Rights, I Will. & M. s. 2, c. 2; and that an action will lie at the suit of

1

the party injured, or an indictment be supported; no fixed rule can, however, be laid down upon the subject, the circumstances of each case requiring the exercise of judgment and discretion. It is usual, however, to require two sureties, though there is no reason why, if the magistrate thinks that the appearance of the accused will be sufficiently secured by the recognizance of one surety only, one only should not be taken, particularly as the 23rd section of the 11 & 12 Vict. c. 42, speaks of surety or sureties. They should be housekeepers, though there would seem to be no imperative rule upon the subject; however, as such sureties only should be received as may be made answerable in the event of default, it is obvious that no person who is not a housekeeper having a settled habitation, wherein a levy may be made, can answer the purposes intended by admitting to bail.

Amount of Bail.]—As regards the amount of recognizance, this will depend upon the magnitude of the offence, and the position of the parties, and will in every case be a fit subject for the exercise of a wise discretion; no rule can be laid down, care, however, should be observed that, whilst the amount is not unnecessarily heavy, it is nevertheless sufficiently large to make its forfeiture a matter of serious inconvenience to the parties. The recognizance of the accused himself is usually double that of each of his sureties.

If the justices consent to take bail and the prisoner is prepared with them, they may at once enter into their recognizances. Before, however, their doing so, the justices should satisfy themselves that they are persons of substance and likely to comply with the terms of their recognizance.

The mode of taking the bail is by stating verbally to the prisoner and his sureties, the substance of his and their recognizance, as thus:

and you, N. O., severally acknowledge yourselves to owe to our Sovereign

You, A. B., of

and you,

L. M., of

of

[M. C.]

R

Lady the Queen, the several sums following, that is to say, you the said A. B., the snm of

&c. &c.

Then the condition of the recognizance should be stated.

The following are the forms provided by the sta

came before (us), the undersigned, two of Her Majesty's justices of the peace for the said (county), and severally acknowledged themselves to owe to our Lady the Queen the several sums following: (that is to say) the said A. B. the sum of and the said L. M. and N. O. the

sum of

each of good and lawful money of Great Britain, to be

made and levied of their several goods and chattels, lands and tenements respectively, to the use of our said Lady the Queen, her heirs and successors, if the said A. B. fail in the condition indorsed.

Taken and acknowledged the day and year first above men

The condition of the within-written recognizance is such that, whereas the said A. B. was this day charged before (us), the justices within-mentioned, for that (fc., as in the warrant); if therefore the said A. B. will appear at the next Court of Oyer and Terminer and General Gaol Delivery (or, Court of General Quarter Session of the Peace) to be holden in and for the county of and there surrender himself

into the custody of the keeper of the (common gaol) there, and plead to such indictment as may be found against him by the grand jury, for or in respect of the charge aforesaid, and take his trial upon the same, and not depart the said court without leave; then the said recognizance to be void, or else to stand in full force and virtue.

NOTICE OF THE SAID RECOGNIZANCE TO BE GIVEN TO THE
ACCUSED AND HIS BAIL.

Take notice that you A. B., of

are bound in the sum of 9

each, that you

and your (sureties L. M. and N. O.) in the sum of

A. B. appear (&c., as in the condition of the recognizance), and not depart the said court without leave; and unless you the said A. B. personally appear and plead and take your trial accordingly, the recognizance entered into by you and your sureties shall be forthwith levied on you and them. Dated this

day of

185

J. S.

Upon the prisoner and his bail entering into the foregoing recognizance, the above notice should be given to each.

Certificate of willingness to accept Bail.]-If the justices in a case in which they have a discretion as to admitting to bail, decide upon taking it, but the prisoner is not then prepared, he will be committed, and may afterwards be admitted to bail. In such a case they will certify upon the back of the warrant of commitment their consent, which is to be in the following form:

CERTIFICATE OF CONSENT TO BAIL BY THE COMMITTING JUSTICE INDORSED ON THE COMMITMENT.

I hereby certify that I consent to the within-named A. B. being bailed by recognizance, himself in and (two) sureties in each.

J. S.

Upon this certificate being indorsed, the prisoner may, at any time before the first day of the sitting or session at which he is to be tried, or before the day to which such sitting or session may be adjourned, be admitted to bail by any justices attending or being at the gaol where he is confined.

But without such certificate it is competent to the actual committing justice (but no other) to admit the prisoner to bail.

When the Justice is bound to certify.]-When the offence is one in which the prisoner has a right to be

admitted to bail, and he is committed to prison, the committing magistrate is bound to certify his consent to bail as above.

When a Prisoner has a right to be bailed, though there is no Certificate.]-It would appear, however, that in a case where the prisoner has a right to bail, the want of the certificate of the committing magistrate cannot affect him, inasmuch as by the 23rd section in such case he may apply to any one of the visiting justices of the prison, or to any other justice of the peace for the same county, riding, division, liberty, city, borough, or place, who will be bound to admit him to bail.

Admitting to Bail when Defendant in Gaol and his Sureties at a distance.]-In cases where the prisoner has been committed, and consent is given to take bail, it will often occur that it is inconvenient for the sureties to attend at the gaol. In that event, the statute has provided that the committing justice is to make a duplicate of his certificate, and upon the production of such certificate to any justice, he is to take the recognizance of the sureties in conformity with such certificate, and then, upon the recognizances so taken being transmitted to the gaoler and being produced, together with the certificate on the warrant of commitment to any justice at the gaol, he will take the prisoner's recognizance and order him to be discharged.

Mode of proceeding.]—In a case such as that lastmentioned, the practical mode of proceeding will be that of applying to the gaoler for a copy of the warrant of commitment, together with the indorsement of the consent to bail, which should then be taken to the committing justice, who, upon seeing the same, will make a separate copy of his certificate of consent to bail. If the justice, however, has kept a copy (as probably he will have done) of his warrant of commitment and certificate, this preliminary application, to