which he has been remanded. The remand should be at the instance of the magistrate, and not of the prosecutor; for if the giving into custody was wrongful, such a remand at the instance of the latter would be grounds for damages against the magistrate (u). A remand is to be carefully distinguished from a committal; a person ought not to be committed for an offence until the depositions against him are complete, and show the corpus delicti on the face of them, whereas the person is remanded for further examination because the depositions are not complete, and do not show the corpus delicti (v). When the examination is resumed by the justice, the witness's examination should not be used to refresh his memory, for a deposition is not to be considered as the witness's own memorandum made by him contemporaneously with the occurrence of the facts stated there, but as a narrative taken down by somebody else from a statement subsequently made by him (w). Whenever the J. P. shall be of opinion that the evidence is not sufficient to put the accused on his trial, he shall forthwith order his discharge, if in custody, as to the information then under inquiry (x). A J. P. is clearly bound, in the exercise of a sound discretion, not to commit any one unless a prima facie case is made out against him by witnesses entitled to a reasonable degree of credit (y). Justices in the performance of this part of their duties will not balance the evidence and decide according as it preponderates, for this would in fact be taking upon themselves the functions of the petty jury, and be trying the case; but they will ask themselves whether or not the evidence as it stands makes out a strong or probable case of guilt, in any one of which cases they will do right in committing the party to trial. If from the slender nature of the evidence they feel that the case is not sustained, and that if they committed, a verdict of acquittal must be the necessary consequence, they should at once discharge the accused (yy).

Accused entitled to copies of depositions, &c.] When the ex

(*) Locke v. Aston, 12 Q. B. 875. (r) See R. v. Lord Mayor of London, 5 Q. B. 555.

(w) R. v. Palmer, 5 Cox, C.C. 236.

(x) 14 & 15 Vic. c. 93, s. 15. (y) Cox v. Coleridge, 1 B. & C. 50, per Bayley, J.

(yy) Saunders, Pr. Mc. 161.

aminations in indictable offences have been completed, then, on or before the first day of the sitting of the court where the person accused is to be tried, the accused is entitled to receive from the officer or person having the custody of the same, copies of the depositions on which he shall have been committed or bailed, on payment of a reasonable sum, not exceeding three halfpence for each folio of 90 words (2). But the accused is not entitled to receive a copy until the whole of the examinations are completed; thus he cannot demand a copy upon a remand for re-examination (a), and he is not entitled to them where he is not committed to prison. A party is only entitled to a copy of the deposition, when he is committed for trial; accordingly when a man was ordered by the justices to find sureties to keep the peace, and in default of doing so was committed, he applied to the justices for copies of the depositions, which was refused; he subsequently applied to the Court of Queen's Bench that the magistrates might be ordered to furnish them, and that court held that he was not entitled to have them, as he had not been committed or held to bail to take his trial (b). It should be mentioned that the accused is likewise entitled to copies of depositions taken at any inquest in case of murder or manslaughter, on the same terms (c).

Witness committing perjury.] In concluding this chapter on examinations, it may be well to draw attention to the powers which justices possess under the 14 & 15 Vic. c. 100, for directing a prosecution for perjury committed before them. By that statute any justice of the peace in special or petty sessions may commit a person guilty of wilful and corrupt perjury in any evidence given before him, until the next assizes for the county, unless he enters into a recognizance to appear and take his trial, and to bind persons to give evidence. Before ordering a prosecution under this clause, the magistrate ought to be satisfied not only that perjury has been committed, but that there is

(2) 14 & 15 Vic. c. 93, s. 14. (a) R. v. Lord Mayor of London, 5 Q. B. 555; ex parte Fletcher, 13 L. J. 67 M. C.

(b) Humphreys exparte New. Sess. C. 179; 19 L. J. M. C 189.

(c) 14 & 15 Vic. c. 93, s. 14.

"a reasonable cause for such prosecution." Two witnesses-or one witness, and something that will supply the place of a second witness-are absolutely essential to a conviction for perjury. To sustain the accusation of perjury, the law now requires the oath of one witness and something more, to contradict the prisoner on a material fact, otherwise it would simply be the oath of a witness against the oath of the accused; but that something more must be independent corroborative testimony, disconnected from the witness's statement (d). The court, therefore, should not order a prosecution unless it sees that such proof is capable of being adduced at the trial. It is very advisable also, where perjury is committed in giving evidence, that such evidence should be taken down in writing by some person who can prove it upon the trial.

CHAPTER IX.

DYING DECLARATIONS.

THE general principle upon which this species of evidence is admitted in evidence, was stated by Lord Chief Justice Eyre to be this:-"That they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath in a court of justice" (a).

Requisites of the declaration.] As the persons whose declarations are thus admitted are considered as standing in the same situation as if they were sworn, the danger of impending death being

(d) R. v. Braithwaite, 1 F. & F. 638.

(a) R. v. Woodcock, 1 Lea. C. C. 502; R. v. Drummond, id. 338; 1 Taylor, Ev. 566. The dying declarations of persons are only admissible

in evidence in cases of homicide, where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declaration; R. v. Mear, 2 B. & C. 605; 4 D. & R. 120, S. C.

equivalent to the sanction of an oath, it follows, therefore, that where the declarant, if living, would have been incompetent to testify by reason of infidelity, imbecility of mind, or tender age, his dying declarations are inadmissible (b). It is essential to the admissibility of these declarations, first, that at the time when they were made the declarant should have been in actual danger of death; secondly, that he should then have had a full apprehension of his danger; and lastly, that death should have ensued (c). It is not, however, necessary that the declarant should state that he was was speaking under a sense of impending death, if it satisfactorily appears that the declaration was really made under that sanction (d).

To be taken without oath.] This declaration is properly to be taken without oath; a dying declaration should never be sworn to; nor has the magistrate any authority to administer one; though, if so taken, it will not render it inadmissible in evidence (e) It differs from an information or deposition in this, that it may be taken by any other person than a justice of the peace, though he should take it, if possible, in preference to any one else. The presence of the accused is not necessary. It is no objection in point of law to a declaration, that it was made in answer to questions; though solicitations naturally weaken the effect of the evidence (f). But where a statement, ready written, was brought by the father of the deceased to a magistrate, who accordingly went to the deceased and interrogated her as to its accuracy, paragraph by paragraph, it was rejected by Mr. Justice Crampton, "because the magistrate should not have trusted to the relation of a third party, but should have taken

(b) See Tay. Ev. 569.

(c) Sussex Peer, 11 Cl. & Fin. 108, 112.

(d) R. v. Woodcock, 1 Lea C.C.503; R. v. John, 1 East, P. C. 357; R. v. Bonner, 6 C. & P. 386; R. v. Van Butchell, 3 id. 631; R. v. Mosley, 1 Moo. C. C. 97; R. v. Spilsbury, 7 C. & P. 187; R. v. Minton, 1 M Nally, Ev. 386; R. v. Scallan, Craw. & Dix, Abr. Cas. 340; R. v. Nicolas, 6 Cox, C. C. 121; R. v. Qaulter, id. 357;

see R. v. Reaney, 1 D. & B. C. C. R. 151; R. v. Whitworth, 1 F. F. 382.

(e) See R. v. Fitzgerald, Ir. C. R. 169; Woodcock's case, 1 Leach, 503; 4 Bl. Com. 137; 1 Tay. Ev. 573; 1 U. & W. J. P. 365.

(f) R. v. Fagent, 7 C. & P. 238; R. v. Woodcock, 1 Leach, 503; R. v. Reason, 1 Str. 499; Fitzgerald's case, 1 Ir. C. R. 168; 1 Tay. Ev. 571.

down the deceased's declaration from her own lips, or at least have taken it down in her presence" (g).

General instructions.] The most advisable course to be pursued, when a person is at the point of death, is, if practicable, to obtain the assistance of a magistrate, who should at once take measures to procure the attendance of the accused party, and take the depositions of the injured person in the regular manner, if there be time so to do. Even if the attendance of a magistrate cannot be secured, still the supposed offender should be brought into the presence of the injured party, so that he may have the opportunity of identifying him, or saying anything he thinks fit in his presence. It may be that the party may be wrongly suspected, or that he may be able by questions to elicit facts. lying solely in the knowledge of the injured party, which may at once reduce an apparent murder to manslaughter, or justifiable homicide (h).

CHAPTER X.

BAIL.

TAKING first into consideration the power and duty of a J. P. with respect to bailing a person charged with an offence, it may be stated that it is essentially a judicial duty, involving inquiries on which discretion must be exercised, and, in some cases of misdemeanor, discretion under circumstances of much nicety, and no general rule can be laid down on this subject (a). But this may be said, that in a case of serious doubt or nicety, when a magistrate feels a difficulty in deciding on the weight of evidence,

(9) R. v. Fitzgerald, 1 Ir. C. R. 168, 169.

(h) A similar course is recommended by Mr. Greaves in his C. P. Report to the Lord Chancellor, 1856.

(a) Lindford v. Fitzroy, 3 New. S. C. 438; 13 Q. B. 240. An ac

tion will not lie against a magistrate for refusing bail, without proof of malice, ib. To refuse or to delay to bail any person bailable, is an offence against the liberty of the subject in any magistrate, at common law, 4 Bla. C. 297.