As to proceedings at sessions.] The duties of an attorney with respect to proceedings at the general quarter sessions, are so fully detailed in a work lately published by me on the practice of that court, that I shall only here refer to it; adding merely, that upon the manner in which a case is got up for sessions, and particularly in appeals, depends very often the result.

As to breaches of trust, by Attornies, see tit. ante, p. 13.

BAIL.

In what cases.] In treason, justices of the peace cannot admit the accused party to bail; Stat. Westm. 1, c. 15; they must refer him to the court of Queen's Bench, who alone have authority to do so.

In misdemeanors, except for breach of prison, any one or more justices may admit the party to bail; see stat. West. 1, c. 15; and it is usual to do so, the justice exercising his discretion merely as to the amount for which he will require bail.

In felonies, one justice of peace cannot admit the accused party to bail; this can only be done by two justices at the least. Where one justice alone is present, if the evidence against the accused be complete, or such as to raise a strong presumption of guilt, he must commit him; but if "the whole evidence given before him shall be such as neither to raise a strong presumption of guilt, nor to warrant the dismissal of the charge, such justice shall order the person charged to be detained in custody, until he or she shall be taken before two justices at the least." 7 G. 4, c. 64, s. 1. And formerly even two or more justices could admit the accused party to bail in felony, only in cases where the evidence against him was not such as to raise a strong presumption of guilt or to require his committal, or where the evidence adduced in his behalf (which the justices might allow, if they thought it conducive to the ends of justice to do so) appeared in their opinion to weaken the presumption of guilt, but where notwithstanding there appeared to be sufficient ground for judicial investigation. Id. But now, by stat. 5 & 6 W. 4, c. 33, s. 3, reciting that in many cases the taking bail for the appearance of persons charged with felony, may be safely admitted, without endangering the appearance of such persons to take their trial in due course of law, and it is therefore expedient in such cases to amend and extend the provisions of the above stat. 7 G. 4,

c. 64, it is enacted that "it shall be lawful for any two justices of the peace, if they shall think fit, of whom one or other shall have signed the warrant of commitment, to admit any person or persons charged with felony, or against whom any warrant of commitment for felony is signed, to bail, in the manner and according to the provisions directed by the said recited act, in such sum or sums of money, and with such surety or sureties as they shall think fit, and notwithstanding such person or persons shall have confessed the matter laid to his or their charge, or notwithstanding such justices shall not think that such charge is groundless, or shall think that the circumstances are such as to raise a presumption of guilt." From the manner in which this section is worded, it might be imagined that it gave authority to admit to bail, only in cases where the accused party had already been committed. But the words "of whom one or other shall have signed the warrant of commitment," mean merely, that if the party have been committed, the committing magistrate must be one of those who afterwards admit him to bail; there is no doubt that if he be originally brought before two magistrates, they may bail him if they will, without first committing him.

Refusing to take bail, where by law it ought to be taken, is, it seems, a misdemeanor; 2 Hawk. c. 15, s. 13; and excessive bail ought not to be required. 1 W. & M. sess. 2, c. 2. Admitting a party to bail, who is not bailable, is also punishable; 2 Hawk. c. 15, s. 7; so for taking insufficient bail, a justice may be fined by the justices of assize, if the party do not appear to take his trial, according to the condition of his recognizance. Id. s. 6, and see 7 G. 4, c. 64, ss. 5, 6.

Where the justices refuse to bail the accused party, he may apply to the court of Queen's Bench; and the judges there, upon a consideration of the case as it appears from the depositions taken before the magistrates, and without reference to the invalidity or validity of the warrant of commitment, may, if they think fit, either award a habeas corpus to bring him into court to be bailed, see R. v. Grieffenburgh, 4 Burr. 2179. R. v. Booth, 2 Ld. Ken. 170. R. v. Marks, 3 East, 157. R. v. Homer, Culd 295, or in cases where it appears that the party is poor, and unable to bear the expense of being brought to court, they will grant a rule to show cause why he should not be bailed by a magistrate in the country; R. v. Jones, 1 B. & A. 209. R. v. Massey, 6 M. & S. 108; in which latter case, the rule absolute will contain all the necessary directions for the taking of the bail.

Where.] Where a party is brought before justices without warrant, he may be bailed by them. Where he is apprehended under a warrant, in the county or other jurisdiction in which it was originally granted, the bail must be taken by justices of

that county, &c.; or if the warrant be backed, and the party thereupon arrested in another county, he may be bailed before the justice who backed the warrant, and another justice of the same county, where necessary, or some other justices of the same county, 24 G. 2, c. 55, s. 1. 45 G. 3, c. 92, s. 1, or before justices of the county where the warrant was originally issued.

How.] Where application is made to a justice of peace to bail a party, he may, if he think fit, (and in suspicious cases it is usually done), order that a reasonable notice of the bail, usually twenty-four or forty-eight hours, according to circumstances, shall be given to the prosecutor. And when the bail appear, whether such notice have been given or not, the justice, or the prosecutor, or any professional person on his behalf (if permitted), may examine them on oath as to their sufficiency.

If either of them be not a housekeeper, or appear not to be worth the sum for which he comes to be bail, both may be rejected. But if they both appear to be responsible persons, and housekeepers, the justice then takes their and the prisoner's recognizance of bail; which is done, by first filling up one of the common printed forms of recognizance, and then stating to the prisoner and his bail the substance of it, stating it however in the second person, “you acknowledge yourselves to owe to our sovereign lady the Queen," &c.

Before the party is admitted to bail, the justice or justices must take his examination, and the information upon oath of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as shall be material, into writing; and shall certify such bailment in writing; and "shall subscribe all such examinations, informations, bailments and recognizances, and deliver or cause the same to be delivered to the proper officer of the court in which the trial is to be, before or at the opening of the court." 7 G. 4, c. 64, s. 2. Where a warrant has been backed, and bail taken before the justice who backed it, the recognizance and examinations in that case, by stat. 24 G. 2 c. 55, s. 1, are to be given by the justice to the constable, and by him delivered to the clerk of assize or clerk of the peace; and it should seem that it was not intended by stat. 7 G. 4, c. 64, s. 2, to repeal this provision of stat. 24 G. 2.

Discharge of the party.] Upon the recognizance being taken, if the defendant have appeared voluntarily, or if he be in custody of the constable, the justice discharges him as a matter of course. But if he be in prison, the justice, upon application, may issue the following Warrant of Deliverance:

Berkshire: E. F. esquire, and G. H. clerk, two of Her Majesty's justices of the peace for the said county, to the keeper of Her said Majesty's gaol at in the said county.

Forasmuch as C. D., late of labourer, hath before us found sufficient sureties for his appearance before [the justices at the next general quarter sessions of the peace "or" Her said Majesty's justices of gaol delivery, at the next general gaol delivery] to be holden in and for the said county, to answer to our said sovereign lady the Queen, for and concerning the [here describe the offence shortly, as in the recognizance], for the suspicion whereof he was taken and committed to your said gaol: We therefore hereby command you, on behalf of our said sovereign lady the Queen, that if the said C. D. do remain in your said gaol for the said cause, and for no other, you shall forbear to detain him any longer, but that you deliver him thence, and suffer him to go at large, and that upon the pain that will thereon ensue. Given under our hands and seals, at

day of - in the year of our Lord, 1839.

the

Not surrendering.] If any person against whom a fiat in bankruptcy has issued, and who thereupon has been declared bankrupt," shall not, before three of the clock, upon the for

ty-second day after notice thereof in writing, to be left at the usual place of abode of such person, or personal notice in case such person shall be then in prison, and notice given in the London Gazette of the issuing of the [fiat] and of the meeting of the commissioners, surrender himself to them, and sign or subscribe such surrender, and submit to be examined before them from time to time, upon oath, or being a Quaker, upon solemn affirmation :" felony, transportation for life or not less than seven years, or imprisonment with or without hard labour, for not more than seven years. 6 G. 4, c. 16, s. 112. Where the bankrupt was in prison at the time, Littledale, J. held that his not surrendering was not a case within the statute. R. v. Mitchell, 4 Car. & P. 251. Where the bankrupt had surrendered and submitted to be examined, but afterwards refused to answer certain questions, a majority of the judges held, that as he had surrendered, and submitted to the jurisdiction of the commissioners, his refusing afterwards to answer particular questions was not a case within the statute. R. v. Page, R. & Ry, 392.

Commitment:-For that he the said C. D., being a person against whom a fiat in bankruptcy had issued, and who had thereupon been declared bankrupt,* whereof notice in writing was on ---> at -, left at the usual place of abode of the said C. D. there, feloniously did not before three of the clock upon the forty-second day after such notice given as aforesaid, and notice given in the Gazette of the issuing of the said fiat and of the meeting of the commissioners in that behalf, surrender himself to the said commissioners [describing the offence]; against the form of the statute in such case made and provided. And you the said keeper, &c.

Not discovering his estate, &c.] "Or if any such bankrupt, upon such examination, shall not discover all his real and personal estate, and how, and to whom, upon what consideration, and when he disposed of, assigned, or transferred any of such estate, and all books, papers, and writings relating thereunto, (except such part as shall have been really and bonâ fide before sold or disposed in the way of his trade, or laid out in the ordinary expense of his family):" felony, &c. as above. 6 G. 4, c. 16, s. 112

Commitment, same as the last form to the asterisk,* and then thus: upon being examined before the commissioners in that behalf, on —, at —, feloniously did not discover certain [personal estate to wit, a certain bill of exchange for 1001. purporting to be drawn by I. K. upon and accepted by L. M. of which he the said C. D. was then and there possessed, &c. describing the offence], the same not having been really and boná fide before then [sold or] disposed in the way of his trade, or laid out in the ordinary expense of his family; against the form