The provision here for committing the witness for refusing to enter into his recognizance, (P. 1, 2) is new, and will be found very useful. This must not be confounded with the refusal to give evidence, punishable under section 15, ante, p. 43: there, he refuses to be examined or sworn, or to give his evidence; here he is supposed to have given his evidence, but refuses to be bound over to give it at the trial; there, he is committed to prison for a certain time, as a punishment for his contempt; here, he is imprisoned, in order that he may be forthcoming at the trial. 66 The justice is by this section required to transmit the recognizances, the information, depositions, and recognizance of bail, to the proper officer of the court where the trial is to be had, before or at the opening of the court, or at such other time as the judge, recorder, or justice who is to preside in such court at the said trial, shall order and appoint." This last provision is necessary, to give time to the presiding judge to read over the depositions in the several cases, before he charges the grand jury. It is objected (S.) to the binding of witnesses by recognizance, generally, that "the idea of a party being called upon compulsorily to acknowledge being indebted to the crown, when in fact no debt exists, is one of those legal fictions so dishonouring to the administration of justice in this country." How an idea can be a legal fiction, we are not precisely told. But I believe it is generally acknowledged that the binding of prosecutors and witnesses to prosecute or give evidence, coupled with the present mode of enforcing payment in case of a breach of the condition, is a most efficient mode of making such parties perform the duties thus cast upon them by law. As to the fiction itself, it is not more dishonouring" than that of a bond for the performance of covenants, or for another person duly accounting, or the like. FORMS. 66 (0. 1.) Recognizance to Prosecute or give Evidence. Be it remembered, that on the C. D. of day of in the town in the year of our Lord ship of in the said county, farmer, [or C. D. of No. 2, street in the parish of in the borough of surgeon, of which said house he is tenant,] personally came before me, one of her Majesty's justices of the peace for the said county, and acknowledged himself to owe to our sovereign lady the Queen the sum of · of good and lawful money of Great Britain, to be made and levied of his goods and chattels, lands and tenements, to the use of our said lady the Queen, her heirs and successors, if he the said C. D. shall fail in the condition indorsed. Taken and acknowledged, the day and year first above mentioned, at before me Condition to Prosecute. The condition of the within-written recognizance is such, that whereas one A. B. was this day charged before me, J. S. justice of the peace within mentioned, for that [&c., as in the caption of the depositions], if therefore he the said C. D. shall appear at the next court of oyer and terminer or general gaol delivery [or at the next court of general quarter sessions of the peace] to be holden in and for the [county] of * and there prefer or cause to be preferred a bill of indictment for the offence aforesaid against the said A. B., and there also duly prosecute such indictment, then the said recognizance to be void, or else to stand in full force and virtue. Condition to Prosecute and give Evidence. : Same as the last form to the asterisk*, and then thus :"and there prefer or cause to be preferred a bill of indictment against the said A. B. for the offence aforesaid, and duly prosecute such indictment, and give evidence thereon as well to the jurors who shall then inquire of the said offence, as also to them who shall pass upon the trial of the said A. B.then the said recognizance to be void, or else to stand in full force and virtue. Condition to give Evidence. ASSOCIATION LIBRARY Same as the last form but one, to the asterisk*, and then thus:-" and there give such evidence as he knoweth upon a bill of indictment to be then and there preferred against the said A. B. for the offence aforesaid, as well to the jurors who shall there inquire of the said offence, as also to the jurors who shall pass upon the trial of the said A. B. if the said bill shall be found a true bill, then the said recognizance to be void, or else to stand in full force and virtue. to wit. (0.2.) Notice of the said Recognizance to be given to the are bound in Take notice, that you C. D. ofthe sum of to appear at the next court of [general quarter sessions of the peace] in and for the county of to be holden at in the said county, and then and there [prosecute and] give evidence against A. B.; and unless you then appear there, and [prosecute and] give evidence accordingly, the recognizance entered into by you will be forthwith levied on you. Dated this day of 185-. J. S. (P. 1.) Commitment of Witness for refusing to enter into the To the constable of and to the keeper of the [house of correction] at in the said [county] of · Whereas A. B. was lately charged before the undersigned, [one] of her Majesty's justices of the peace in and for the said [county] of -, for that [&c., as in the summons to the witness], and it having been made to appear to [me] upon oath that E. F. of was likely to give material evidence for the prosecution, [1] duly issued [my summons to the said E. F., requiring him to be and appear] before [me] on at or before such other justice or justices of the peace as should then be there, to testify what he should know concerning the said charge so made against the said A. B. as aforesaid; and the said E. F. now appearing before [me] [or being brought before [me] by virtue of a warrant in that behalf, to testify as aforesaid], hath been now examined by [me] touching the premises, but being by [me] required to enter into a recognizance conditioned to give evidence against the said A. B. hath now refused so to do: these are therefore to command you the said constable to take the said E. F. and him safely to convey to the [house of correction] at in the [county] aforesaid, and there deliver him to the said keeper thereof, together with this precept; and I do hereby command you the said keeper of the said [house of correction] to receive the said E. F. into your custody in the said [house of correction,] there to imprison and safely keep him until after the trial of the said A. B. for the offence aforesaid, unless in the meantime such E. F. shall duly enter into such recognizance as aforesaid in the sum of · pounds, before some one justice of the peace for the said [county], conditioned in the usual form to appear at the next court of [oyer and terminer or general gaol delivery, or general quarter sessions of the peace], to be holden in and for the [county] of there to give evidence before the grand jury upon any bill of indictment which may then and there be preferred against the said A. B. for the offence aforesaid, and also to give evidence upon the trial of the said A. B. for the said offence, if a true bill should be found against him for the same. Given under my hand and seal, this day ofthe year of our Lord in the [county] aforesaid. at and in (P. 2.) Subsequent Order to discharge the Witness. To the keeper of the [house of correction] at [county] of in the Whereas by [my] order dated the - -day of- -[instant], reciting that A. B. was lately before then, charged before [me] for a certain offence therein mentioned, and that E. F. having appeared before me, and being examined as a witness for the prosecution in that behalf, refused to enter into a recognizance to give evidence against the said A. B., and I therefore thereby committed the said E. F. to your custody, and required you safely to keep him until after the trial of the said A. B. for the offence aforesaid, unless in the meantime he should enter into such recognizance as aforesaid: And whereas for want of sufficient evidence against the said A. B. the said A. B. has not been committed or holden to bail for the said offence, but on the contrary thereof has been since discharged, and it is therefore not necessary that the said E. F. should be detained longer in your custody: these are therefore to order and direct you the said keeper to discharge the said E. F. out of your custody as to the said commitment, and suffer him to go at large. Given under [my] hand and seal, this day of the year of our Lord at in the [county] aforesaid. J. S. (L. S.) in the accused. 1 J. P. 290. XXI. And be it enacted, that if, from the absence of Remanding witnesses, or from any other reasonable cause, it shall become necessary or advisable to defer the examination or further examination of the witnesses for any time, it shall be lawful to and for the justice or justices before whom the accused shall appear or be brought, by his or their warrant (Q. 1.) from time to time to remand the Post, p. 65. party accused for such time as by such justice or justices in their discretion shall be deemed reasonable, not exceeding eight clear days, to the common gaol or house of correction, or other prison, lock-up house, or place of security in the county, riding, division, liberty, city, borough, or place for which such justice or justices shall then be acting; or if the remand be for a time not exceeding three clear days, it shall be lawful for such justice or justices verbally to order the constable or other person in whose custody such party accused may then be, or any other constable or person to be named by the Proviso. said justice or justices in that behalf, to continue or keep such party accused in his custody, and to bring him before the same or such other justice or justices as shall be there acting at the time appointed for continuing such examination provided always, that any such justice or justices may order such accused party to be brought before him or them, or before any other justice or justices of the peace for the same county, riding, division, liberty, city, borough, or place, at any time before the expiration of the time for which such accused party shall be so remanded, and the gaoler or officer in whose custody he shall then be, shall duly obey such order: provided also, that instead of detaining the accused party in custody during the period for which he shall be so remanded, any one justice of the peace before whom such accused party shall so appear or be brought as aforesaid, may discharge him, upon his entering into a Post, p. 66, recognizance (Q. 2, 3), with or without a surety or sure Proviso. 67. ties, at the discretion of such justice, conditioned for his appearance at the time and place appointed for the continuance of such examination; and if such accused party shall not afterwards appear at the time and place mentioned in such recognizance, then the said justice, or Post, p. 67. any other justice of the peace who may then and there be present, upon certifying (Q. 4) on the back of the recognizance the non-appearance of such accused party, may transmit such recognizance to the clerk of the peace of the county, riding, division, liberty, city, borough, or place within which such recognizance shall have been taken, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient prima facie evidence of such non-appearance of the said accused party. NOTE. By this section, it is left to the discretion of the examining justice whether he will remand the accused or not; he may do it on account of the absence of a witness or witnesses, or for any other reasonable cause, of the reasonableness of which cause he is to judge. And he may remand him for any time not ex |