duty to bind over such prisoner's witnesses, unless they give evidence which appears to be material for the prosecution. (See The Magistrate, vol. 3, p. 118, Sept. 1851.) Decision of Justices as to discharging or com mitting for trial. CHAPTER VIII. DECISION OF JUSTICES AS TO DISCHARGING OR ASSIZES. THE case being concluded, the justices will form That, when all the evidence offered upon the part of the prosecution, against the accused party shall have been heard, if the justice or justices of the peace then present shall be of opinion that it is not sufficient to put such accused party upon his trial for any indictable offence, such justice or justices shall forthwith order such accused party, if in custody, to be discharged as to the information then under inquiry; but if, in the opinion of such justice or justices, such evidence is sufficient to put the accused party upon his trial for an indictable offence, or, if the evidence given raise a strong or probable presumption of the guilt of such accused party, then such justice or justices shall, by his or their warrant (T. 1), commit him to the common gaol or house of correction for the county, &c. It is, of course, idle to attempt to suggest any general rules for the guidance of the discretion of justices upon the question as to whether or not, in any given case, they should commit or discharge. Each case must depend upon its own peculiar merits, and reliance must be placed upon the justices that they will exercise the discretion with which they are clothed with soundness, and with the ends of individual and public justice alone in view. In Cox v. Coleridge (1 B. & C. p. 50), Mr. Justice Bayley observed, "I think that a magistrate is clearly bound, in the exercise of a sound discretion, not to commit any one, unless a primâ facie case is made out against him by witnesses entitled to a reasonable degree of credit." Justices, in the performance of this part of their duty, should not balance the evidence adduced for or against the prosecution, and so decide according as it preponderates, for this would be, in reality, taking upon themselves the functions of the petty jury, and trying the case; but they should ask themselves whether or not the evidence, as it is left, makes out a strong or probable, or even a conflicting case of guilt against the accused; in any one of which cases, they will do right in committing the party to trial. If, however, either from the slender nature of the evidence, the unworthiness of the witnesses, or the conclusive affirmative evidence of innocence produced on the part of the prisoner, the justices feel that the case is not sustained, they should at once discharge the accused, and so put an end to the inquiry, as far as they are concerned. cases within diction. In forming an opinion as to which course it Immunity of will be proper to pursue, the justices will not justices in forget that the law throws around them complete their jurisimmunity for any error of judgment which they may commit, provided the case is within their jurisdiction. This position is too well established to require authorities in its support; there is one, however, which may, with propriety, be referred to, as being a recent and a most lucid exposition of the law on the subject. The case was that of Cave v. Mountain (1 Man. & Gr. 257), which was one of a summary conviction, and, in delivering the considered judgment of the justices. * * * Decision of court, Tindal, C. J. said, "As to the first objection, there can be no doubt that, if a magistrate commit a party charged before him in a case where he has no jurisdiction, he is liable to an action of trespass; but, if the charge be of an offence over which, if the offence charged be true in fact, the magistrate has jurisdiction, the magistrate's jurisdiction cannot be made to depend upon the truth or falsehood of the facts, or upon the evidence being sufficient or insufficient to establish the corpus delicti brought under investigation. As to the second ground of objection, it is answered in part by the fact that there was a regular information upon oath laid before the magistrate, the original information having been brought up at the request of both parties. That the information does not disclose any legal evidence of the guilt of the prisoner, is undoubtedly true, it states nothing beyond mere hearsay, upon which neither judge or juries could act. But, at the utmost, this amounts to no more than an error in judgment on the part of the magistrate, and no case can be found in which a magistrate, acting within his jurisdiction, has been held liable in an action of trespass, for a mere error in judgment. It would be a very different case, if the defendant had acted from any malicious or improper motive, or with any want of bonâ fides, in which case he would be liable in a different form of action." If the justices decide that the evidence is not sufficient to put the accused party upon his trial, they are to order him to be forthwith discharged as to the information then under inquiry. But it will, of course, not be supposed that such a discharge will prevent similar proceedings being taken against him at a future time, should additional evidence arise to support the charge, nor will it prevent the prosecutor from preferring an indictment for the same offence at the sessions or assizes. commit to If, however, the justices decide upon commit- Whether to ting the party to trial, they will first consider the sessions whether or not the offence is triable at the ses- or the assizes. sions or only at the assizes, and whether or not if it be triable at either it will be more judicious to commit to one or the other of these tribunals. Every acting justice is, of course, familiar with the fact that certain classes of offences are not triable by them at their quarter sessions, and that crimes comprehended in those classes can be tried alone at the assizes. The 5 & 6 Vict. c. 38, points out what these offences are, and the clerk to the justices will at once know whether the case before them is triable at the sessions, or alone at the assizes. But even if the case be within the jurisdiction of the justices at sessions, it is competent to them, as it would seem, in any case of great difficulty, to act under the proviso in their commission, "that if a case of difficulty upon the determination of any of the premises before you, or any two or more of you, shall happen to arise, then let judgment in no wise be given thereon before you, or any two or more of you, unless in the presence of one of our justices of the one or other bench, or of one of our justices appointed to hold the assizes in the aforesaid county." However, with the limited and defined jurisdiction of the quarter sessions at the present day, and the power of reserving a case for the opinions of the Court for Crown Cases Reserved under the provisions of the 11 & 12 Vict. c. 78, no case can well arise justifying the justices in abstaining from commiting to the sessions in a case within their jurisdiction. But if the assizes for the county will occur prior to the period for the holding of the next sessions, the justices should commit to such assizes, even though in point of locality it might be more convenient that commit to the sessions or assizes. Whether to the prisoner should be tried at the sessions. It was formerly thought, that if prisoners were committed for trial at a sessions, and an intervening assizes took place, that it would be the duty of the judge of assize, if no prosecutors appeared, to discharge such prisoners upon proclamation, under his commission of general gaol delivery; and instances have occurred in which judges have so acted, and it is far from clear that under such circumstances it is not their imperative duty to do so, It was, moreover, long a question whether the jurisdiction of the sessions was not suspended or determined by the arrival of the judges of assize in the county. This doubt has, however, recently been satisfactorily set at rest by the Court of Queen's Bench, in the case of Smith v. The Queen (in error) (3 New Sess. Cas. 564; 3 New Mag. Cas. 223; 3 Cox's Crim. Cas. 586), where the question was, whether a conviction of a party at a borough sessions holden whilst the assizes were being held for the same county was good. The arguments were very astute, and the judgment a very sound one, a part of which latter, from its practical importance, we beg here to transcribe: "The truth seems to be," said Mr. Justice Coleridge, in delivering the considered judgment of the court, "that from the fact of the sessions of the peace not being held during the assizes for reasons of convenience, a common notion has prevailed that they cannot by law be so held, for which notion we cannot find any other sufficient reason. Doubtless the assizes interfere sometimes in point of time with the holding of the sessions, and therefore the 4 & 5 Will. 4, c. 47, was passed to authorize the appointment of some other time for holding the quarter sessions usually held at Easter. But this may have been for the sake of convenience, without implying that there arose any conflict of legal authority. It is true that |