before a justice of the peace, where it would be inconvenient to bring the prisoner and his bail before the court or judge in town; or, on just cause being shown, to order that a party not in custody shall be admitted to bail on surrendering to a warrant. At common law the powers of the court were exercised by means of a writ of habeas corpus. Hale's Sum. 104; 1 Chit. Cr. L. 98; Burn's J., tit. " Bail," 369 (30th ed.). Under the present practice of the Court, "applications for bail in felony or misdemeanor where the party is in custody, shall be in the first instance by summons before a judge at chambers for a writ of habeas corpus, or to show cause why the defendant should not be admitted to bail either before a judge at chambers or before a justice of the peace, in such an amount as the judge may direct." Cr. Off. Rules, 1886, r. 122. No summons to show cause before a judge at chambers for bail in felony shall be issued without the leave of a judge upon an ex parte application. Rule 305. For the requisite forms on applications for bail, see Appendix to Cr. Off. Rules, 1886, Nos. 69 to 77. Affidavits must be entitled "In the High Court of Justice, King's Bench Division." Cr. Off. Rules, 1886, r. 7.

If the judge at chambers refuses bail, a further application may be made to a divisional court, not by way of appeal, but de novo; Short & Mellor, Cr. Off. Pract. 382; but there is no appeal to the Court of Appeal from the decision of a divisional court of the King's Bench Division upon an application for bail by a prisoner. R. v. Foote, 10 Q. B. D. 378; 52 L. J. (Q. B.) 528.

To avoid expense and inconvenience it is now the practice in almost all cases, instead of applying for a writ of habeas corpus, to apply for a summons before a judge in chambers, to show cause why the prisoner should not be admitted to bail before a justice of the peace. If the order be made, upon its being produced to a justice, he will admit the prisoner to bail.

Where there is no inconvenience in the appearance of the prisoner and his bail in the court, counsel applies for a writ of habeas corpus ad subjiciendum, and also for a writ of certiorari, directed to the magistrate or coroner, as the case may be, to bring before the court the depositions on which the prisoner has been committed. The affidavits are entitled as in the case of a bail summons, and should verify the depositions (R. v. Barthelemy, 1 E. & B. 8; Dears. 60), and should be accompanied by a certified copy of the commitment, to which the accused is entitled as of right, under 31 Car. 2, c. 2, s. 4 (see Cr. Off. Rules, 1886, r. 35, Forms 172, 173), and by a copy of the depositions. If these are not obtained, a certiorari to bring them up is necessary.

Twenty-four hours' notice of bail, in cases of murder or manslaughter, must be served on the widow, if any there be, or next of kin of the deceased, and in other cases upon the prosecutor, and also on the coroner, or committing magistrate-personal service is not requisite. Returns having been duly made to the writs, when the prisoner is brought into court counsel moves that he be admitted to bail, and if there be no opposition the court will in its discretion admit the prisoner to bail, and the officer of the court will take the recognizance. In cases of felony the court usually requires four sureties; but for the inferior offences two are sufficient. R. v. Shaw, 6 Dow. & Ry. 154. The application to admit the prisoner to bail may be opposed by counsel, and affidavits may be used in answer to the application. When a prisoner is brought up to be bailed at chambers, the proceedings are nearly the same as those in court. Short & Mellor's Cr. Off. Pr. 380.

Bail in case of removed indictments.]-See post, Certiorari, p. 134.

Bail on coroner's inquisition.]—See post, p. 160.

Estreat of recognizance.]—If the condition of a recognizance entered into either by a party or by his suretics be broken, the recognizance may be forfeited, and on forfeiture the obligees become debtors to the Crown for the sums in which they are respectively bound.

Former practice.]-The ancient mode of enforcing a forfeited recognizance was to order its estreat into the Exchequer. The word "estreat" (extractum) means a true note of entries in the rolls of a court containing orders in favour of the revenue of the Crown: Westm. c. 2, Termes de la Ley. It was the duty of the clerks of all the King's courts to make up an accurate estreat roll showing the nature and details of all fines, forfeitures, etc., enforced by the court, and to return it to the Exchequer.

The roll had to be verified by oath (4 W. & M. c. 24, s. 4); wilful misstatements were punishable (22 & 23 Car. 2, c. 22, s. 5); and failure to make the returns was ground for amercement (3 G. 1, c. 15, s. 12).

The sums not received before the return of the roll were levied by the sheriff under the orders of the Court of Exchequer until 1822 (3 G. 4, c. 46). The Court of Exchequer had jurisdiction over recognizances forfeited before justices of the peace in or out of sessions. The jurisdiction was abolished by 3 G. 4, c. 46, s. 2. R. v. Yorkshire, West Riding, JJ., 7 A. & E., 583, 590; 7 L. J. (M. C.) 9: R. v. Thompson, 3 Tyr. 73: R. v. Hankins, M'Cl. & Y. 27. But this change in the law did not affect the power of the court to bring up the recognizance by certiorari from sessions: ex parte Pellow, M'Cl. 111; 28 R. R. 683; R. v. Brooke, 59 J. P. 6, and did not affect the assizes: R. v. Hankins, ubi supra.

The powers of the Court of Exchequer passed in 1875 to the H. C. J., and in 1880 to the K. B. D. (36 & 37, Vict. c. 66, ss. 16, 32, Order in Council, 16 Dec., 1880. Statutory Rules and Orders Revised (ed. 1904), vol. 12, p. 1, tit. "Supreme Court England.”

Present practice-Superior Courts.]-The practice of parliament, the Supreme Court, and courts of assize, respecting the estreat of recognizances, is governed by the Fines Act, 1833 (3 & 4 W. 4, c. 99), which repealed 22 & 23 Car. 2, c. 22. By ss. 26, 27, 28, provision is made for the rendering of an account to the Treasury, by the King's coroner and attorney, and the King's Remembrancer, of fines, amerciaments, penalties, and recognizances set, imposed or forfeited in the High Court, and for the estreat by those officers under order of the court or a judge of such fines, etc., levied and not received, and for their payment over of the fines, etc., as directed by the Treasury. By s. 29 it is provided, that an account in writing of all recognizances forfeited to or for the use of the crown, by or before any judge or judges of assize throughout England, shall within fourteen days next after such recognizances are forfeited be made out by the clerk of assize, with the names and residences of the parties liable to make payment thereof, and he shall make out two copies, one to be sent to the Treasury, and such recognizances shall, within the time last aforesaid, be duly certified and estreated by the clerk of assize into the court of Exchequer. Under 22 & 23 Vict. c. 21, s. 32, clerks of assize ceased to estreat fines, etc., into the court of Exchequer, and now enrol the fines and send a copy to the sheriff unless under s. 38 the Treasury requires return of the estreat to the King's Remembrancer. The court of Exchequer, under a writ of privy seal, had power over penalties and forfeitures occurring at assizes, and could compound, or, in its discretion, discharge, any recognizances. 33 H. 8, c. 39, ss. 40-42; R. v,

Hankins, MC. & Y. 27, and n., p. 31. The Treasury has a concurrent power under 3 & 4 W. 4, c. 99, ss. 33, 38.

The court has a discretion as to whether to order the estreat of a recognizance.

In R. v. Doyen, Lewes assizes, 1899, 34 L. J. Newsp. 645, a Frenchman was admitted to bail, his father being taken as surety, and went to France, where he became dangerously insane, so that, through no fault of the surety, he could not be produced at the trial. Wills, J., refused an application to estreat the recognizance, and said he could not make any order on the justices' clerk as to the amount, which was deposited with him. In R. v. Sangiovanni [1904] 68 J. P. 54, an estreat of the recognizances of sureties for a person committed for trial had been ordered on his failure to surrender. Fulton, Recorder, directed that the estreat should not issue, on being satisfied that the sureties had taken all reasonable steps to secure the attendance of the defendant. On finding that he had left for the United States, they had informed the police, and had telegraphed at their own expense to have the defendant detained on arrival. In consequence of their action he was not allowed to land, and was forced to return in the ship; but this being a Belgian vessel, it took him to a Belgian port.

The estreat of recognizances on the Crown side of the King's Bench Division is regulated by the Crown Office Rules, 1886.

"Every recognizance acknowledged on the removal of an indictment, order, or other proceeding, or to prosecute any information granted by the King's Bench Division, or for the appearing or answering of any party in the said Division, or for good behaviour, or for any other purpose, shall after the acknowledgment thercof, be transmitted to the crown office and filed there." R. 123.

"No recognizance shall henceforth be forfeited, estreated, or put upon the estreat roll without the order of the court or a judge, nor unless an order or notice shall have been previously served upon the partics by whom such recognizances shall have been given, calling upon them to perform the conditions thereof, and no default shall be considered to bo made in performing the conditions of a recognizance by reason of the trial of any indictment or presentment or the argument of any order or conviction or other proceeding having stood over where such indictment has been made a remanet, or such indictment or order has stood over by order of the court, or by consent in writing of the parties." R. 124.

"Whenever it has been made to appear to the court or judge that a party has made default in performing the conditions of any recognizance, into which he has entered, filed in the crown office, the court or a judge upon notice to the defendant and his sureties, if any, may order such recognizance to be estreated into the Exchequer without issuing any writ of scire facias." R. 126.

"No proceedings shall be taken in the crown office by scire facias upon recognizance." R. 127.

Practice at sessions of the peace.The practice for courts of quarter sessions as to the estreat of recognizances other than those of the defendant and his sureties is governed by s. 31 of the Criminal Law Act, 1826, (7 G. 4, c. 64), which provides that in every case where any person bound by recognizance for his or her appearance, or for whose appearance any other person shall be bound to prosecute or give evidence in any case of felony or misdemeanor, or to answer for any common assault, or to articles of the peace, or to abide an order in bastardy (this form of recognizance was abolished by 5 & 6 W'. 4, c. 76, s. 70), shall therein make default, the officer

of the court by whom the estreats are made out shall prepare a list in writing, specifying the name of every person so making default and the nature of the offence in respect of which every such person, or his or her surety, was so bound, together with the residence, trade, profession or calling of every such person or surety, and shall in such list distinguish the principals from the sureties, and shall state the cause, if known, why each such person has not appeared, and whether by reason of the nonappearance of such person the ends of justice have been defeated or delayed: and every such officer shall and is hereby required before any such recognizance shall be estreated to lay such list, if at a court of oyer and terminer in any county besides Middlesex and London" (i.e. City)... "before one of the justices of these courts respectively; if at a court wherein a recorder or other corporate officer is the judge or one of the judges, before such recorder or other corporate officer; and if at a session of the peace, before the chairman or two other justices of the peace who shall have attended such court, who are respectively authorized and required to examine such list, and to make such order touching the estreating or putting in process of any such recognizance as shall appear to them respectively to be just; and it shall not be lawful for the officer of any court to estreat or put in process any such recognizance without the written order of the justice, recorder, corporate officer, chairman, or justice of the peace before whom respectively such list shall have been laid."

Subject to the special provisions of the Act above quoted, the general practice of courts of quarter sessions is governed by the Levy of Fines Act, 1822 (3 G. 4), c. 46, which directs (s. 2) that the clerk of the peace or town clerk shall copy on a roll such forfeited recognizances, and shall within such time as shall be fixed by the court of quarter sessions, not exceeding twenty-one days from the adjournment of such court, send a copy of such roll, with a writ of distringas and capias [see forms, ante, pp. 104, 105], or a writ of fieri facias and capias, to the sheriff of such county, which shall be the authority to him for proceeding to the immediate levying and recovering of such forfeited recognizances. Sect. 8 of the same Act requires the sheriff to return the writ and roll on the first day of the quarter sessions with a return of what has been done under it, and s. 5 of the Lery of Fines Act, 1823 (4 G. 4, c. 37), requires the clerk of the peace or town clerk to send to the Treasury within twenty days after the holding of quarter sessions a copy or extract of all rolls returned by the sheriff, with an account of the causes of the discharge by the court of any forfeiture, and the reason of the sheriff for any failure to levy a forfeited recognizance. In municipal boroughs in which the town clerk and clerk of the peace are not the same person, the latter is to discharge the duties imposed on the town clerk by the Act of 1822; see 45 & 46 Vict. c. 50, s. 222. By s. 17 of the Quarter Sessions Act, 1849 (12 & 13 Vict. c. 45), the provisions of the Acts of 1822 and 1823 as to the procedure with respect to forfeited recognizances are applied also to fines and amercements: as to which see re Nottingham Corporation (1897), 2 Q. B. 502: R. v. Dover, 1 Cr. M. & R. 726: 1 Chit. Cr. L. 726: 4 Chit. Cr. L. 487.

In the case of a recognizance by the defendant the order to forfeit is made after he is called, and on his failure to appear during the sessions, without any further notice or summons. In the case of sureties, ss. 5, 6, of 3 G. 4, c. 46, give a right of appeal to the sessions to all persons whose recognizances have been forfeited if they give proper security and on the appeal the court may discharge the whole or part of the forfeiture, and discharge the obligee if in custody, and by s. 2 of the Criminal Procedure Act, 1853 (16 & 17 Vict. c. 30) courts of quarter sessions are

empowered to forfeit recognizances by principals or suretics to keep the peace or be of good behaviour, on proof of the conviction of the principal of any offence which is by law a breach of the conditions of the recognizance. The procedure of the Acts of 1822 (3 Geo. 4, c. 46) is applied to recognizances so forfeited.

SECT. 11.

INDICTMENT, IN WHAT CASES QUASHED.

In what cases.]-If an indictment or inquisition is bad on the face of it, or there is any such insufficiency, either in the caption or in the body of an indictment or inquisition, as will make erroneous any judgment whatsoever given on any part thereof, the court may in its discretion quash the indictment. 2 Hawk. c. 25, ss. 146-149; 1 Chit. Cr. L. 298: R. v. Taylor, 9 Dowl. 600. Thus, before 5 & 6 Vict. c. 38, indictments for perjury at common law or forgery found at sessions were quashed because the sessions had no jurisdiction to inquire of perjury or forgery. R. v. Bainton, 2 Str. 1088, and see R. v. Rigby, 8 C. & P. 770 (but see ante, p. 102). An indictment against six for exercising a trade was quashed because it was a distinct offence in each, and could not be made the subject of a joint prosecution. R. v. Tucker, 4 Burr. 2046: R. v. Weston, 1 Str. 623. In R. v. Philips, 2 Str. 921, judgment was arrested on an indictment of six for perjury (to which four pleaded and were convicted), on the ground that the offence was in its nature several, and two could not be indicted together for it. And in several instances indictments have been quashed, because the facts stated in them did not amount to an offence punishable by law; see R. v. Burkett, Andr. 230: R. v. Sarmon, 1 Burr. 516: R. v. Wright, 1 Burr. 543: R. v. Philpotts, 1 C. & K. 112; as, for instance, an indictment for contemptuous words spoken to a justice of peace, not stating that they were spoken to him whilst in the execution of his office. R. v. Leafe, Andr. 226: and an indictment against an overseer for misconduct in preparing electoral registers on the ground that the offence, if any, was not punishable on indictment. R. v. Hall [1891] 1 Q. B. 747: 60 L. J. (M. C.) 129. Where a defendant who has been committed for obtaining a chattel by false pretences, is indicted in one count for that offence, and in another count for obtaining another chattel by false pretences, without any authority obtained under 22 & 23 Vict. c. 17 (The Vexatious Indictments Act, 1859), or arising from the provisions of 30 & 31 Vict. c. 35 (which had not then been passed), to prefer such second charge, it was held that the judge at the trial should direct the second count to be quashed. R. v. Fuidge, L. & C. 390; 33 L. J. (M. C.) 74 (ante, p. 9). See also R. v. Bradlaugh, 15 Cox, 156 (ante, p. 10). Á count of an indictment may also be quashed as being too general. On this ground a count under 32 & 33 Vict. c. 62 (Debtors Act, 1869), s. 13 (1) which alleged that the defendant did obtain credit from the prosecutor "by means of fraud other than by false pretences" without setting out the means, was quashed. R. v. Bell, 12 Cox, 37, Montague Smith, J. But the effect of s. 19 was not considered, and the case is virtually overruled by R. v. Pierce, 56 L. J. (M. C.) 85; 16 Cox, 213 (C. C. R.) (ante, p. 70). An indictment under 46 & 47 Vict. c. 51, which charged the defendant with "corrupt practices," at a parliamentary election, without setting out the nature of such corrupt practices as "bribery," etc., was quashed as being too general. R. v. Norton, 16 Cox, 59, Pollock, B., approved by the majority of the judges in R. v. Stroulger, 17 Q. B. D.