to assizes or

the commission of gaol delivery commands the Commitment judges to deliver the gaol of the prisoners sessions. therein being, and it therefore gives them an authority which might, in fact, conflict with the justices in sessions trying the prisoners in the gaol under their commission of the peace. It does not, however, appear that there is any law or rule of law at present which ousts them of their jurisdiction, and it is with the strict law alone that we have at present to deal. We are, therefore, brought to the conclusion that the writ of error cannot be supported, and that our judgment must be for the crown. But although we are of opinion that there was no defect of jurisdiction-nor, indeed, on a consideration of all the circumstances, any inconvenience, in holding the sessions at which the plaintiff in error was convicted during the time of the assizes (for in this respect there may be an obvious distinction between a recorder and the magistrates of a county), yet we cannot dismiss this case without expressing our opinion that it would be highly inconvenient and improper, generally speaking, for the magistrates of a county to hold their sessions concurrently with the assizes, even in a different part of the county. Of course, we cannot anticipate that they would hold them concurrently at the same place."

This case having determined the question of right, it is nevertheless obvious that all committals should be to the assizes, in the event of their occurring prior to the time for the holding of the sessions. These observations, however, do not apply to borough sessions, which stand upon a different footing, and which, as being established with the view to local convenience, will not follow the rule as laid down with reference to county sessions. In the case, therefore, of borough sessions, the committals will wisely be made to the next sessions for that

D

locality, irrespective of any intervening assizes; the object of borough sessions being to bring the administration of criminal justice home to the doors of the burgesses, which object would be evaded if the burgesses were compelled to travel to the assizes twice in the year to obtain that which they could so much easier and so much more economically obtain in their

own towns.

CHAPTER VIII.*

ADMITTING TO BAIL-UNWILLING OR REFRACTORY WITNESSES-COMMITTING FOR TRIAL-MONEY OF PRISONERS-COPY OF DEPOSITIONS-READING OVER AND SIGNING DEPOSITIONS-TRANSMISSION OF DEPOSITIONS TO PLACE OF TRIALCERTIFICATE OF EXPENSES.

THE justices having determined upon committing the accused party to trial, they will probably be requested to accept bail for his appearance; and hereupon a most important duty will devolve upon them—the duty of determining whether or not they are bound to accept bail, or ought in that particular case to accept it.

The law upon the subject of admitting parties accused of indictable offences to bail has recently undergone much modification; under the old law, as it stood before the passing of the 11 & 12 Vict. c. 42, justices had a discretion in all cases of felony to admit to bail, and in all cases of

to bail.

indictable misdemeanors (with a few exceptions Admitting only,) it was compulsory upon them to accept bail, if sufficient bail were offered; in the case of a felony, however, it being necessary that the bail should be taken by two justices. By sect. 23, however, of the above-mentioned statute, whilst the discretion of justices is not interfered with in cases of felony, and one justice alone can admit to bail, they have a discretion expressly conferred upon them as to admitting to bail in certain cases of misdemeanor, namely: 1st, assault, with intent to commit any felony; 2nd, any attempt to commit any felony; 3rd, obtaining or attempting to obtain property by false pretences; 4th, a misdemeanor in receiving property stolen or obtained by false pretences; 5th, perjury, or subornation of perjury; 6th, concealing the birth of a child by secret burying or otherwise; 7th, wilful or indecent exposure of the person; 8th, riot; 9th, assault in pursuance of a conspiracy to raise wages; 10th, assault upon a peace officer in the execution of his duty, or upon any person acting in his aid; 11th, neglect or breach of duty as a peace officer; 12th, any misdemeanor for the prosecution of which the costs may be allowed out of the county rate. In all the foregoing classes of misdemeanors, justices have now a discretion to admit or not admit the accused to bail, and from the very comprehensive character of the last-enumerated class of cases, it will be seen that there are few misdemeanors in which their discretion may not be exercised. In cases of misdemeanors not within any one of the foregoing classes, and in which the defendant has a right to be bailed, it will be the duty of the justices not to refuse it if substantial bail be offered. To refuse bail in a case in which a defendant is entitled to it, is, in the eye of the law, a serious dereliction of duty, and may subject the justices to consequences of a most painful character.

to bail.

Admitting Upon this point, the case of Reg. v. Badger and another (4 Q. B. 468), is an important authority. In this case a criminal information was moved for against two justices for refusing to take responsible bail on behalf of a party who was charged with uttering seditious language at an unlawful assembly, the ground of the refusal being that the two sureties had attended Chartist meetings. The judgment, which gravely censured the justices for their refusal, enters fully into the law upon the subject, and deserves a careful perusal by all acting magistrates.

It must not, however, be supposed that in accepting bail, even in cases in which the law has not positively invested them with a discretion, that justices are to act merely ministerially. Some discretion is to be exercised by them, and should they refuse bail in a case in which the law says they ought to accept it, they will not be liable to an action if it appear they acted without malice. This point came under the consideration of the Court of Queen's Bench in Linford v. Fitzroy: (3 New Sess. Cas. 438; 3 New Mag. Cas. 144; 18 L. J. 108, M. C.) In that case the plaintiff had been charged (prior to the 11 & 12 Vict. c. 42) with assaulting a constable in the execution of his duty, and two sufficient sureties were offered as bail, whom the defendant (a justice) refused to accept on the ground that, on a previous occasion, the plaintiff had absconded. The jury found that the defendant refused sufficient bail, but that he did not act maliciously; and upon the case coming on before the court above on the point of whether or not it was necessary in such a case for the plaintiff to prove express malice, the court held that the duty of a justice in accepting bail was essentially a judicial one, and that being so, he I could not be made liable to an action for a mistake in doing or omitting to do anything in

respect of that duty, unless he can be fixed with malice, which, in the case before them, had been negatived by the jury. It will be observed that in the foregoing case the jury expressly negatived malice, which was a necessary ingredient; but inasmuch as the law clearly recognises a right to be bailed in certain classes of misdemeanors, a justice, in refusing substantial bail, will fairly open himself to the imputation of acting maliciously, and very slight evidence will be sufficient to make him answerable in damages.

discretion

rence to

In cases in which justices have a discretion as As to exerto admitting to bail, they will be guided in their cising a determination alone by the probability of the with refeappearance of the accused at the time and place bailing. of trial; the probable innocence or guilt of the party, though well deserving of consideration, is not the criterion by which alone their determination should be formed. Cases may be suggested in which it would be more destructive to a party to escape his trial than to appear and be found guilty; under the late act of the 5 & 6 Will. 4, c. 33, s. 3, justices were expressly empowered to bail, "notwithstanding such person or persons shall have confessed the matter laid to his or their charge," &c.; and although these words are not found in the repealing act of the 11 & 12 Vict. c. 42, yet the words in sect. 23 of this statute are sufficiently large to include a case where the party even admits his guilt. In coming to a decision upon this question the justices will remember that the only purpose to be served by a commitment to prison before trial, is to secure the personal appearance of the accused at the time and place of trial; and that, inasmuch as the law abhors unnecessary severity, and a party confined in gaol is necessarily subjected to very many privations and restrictions, which indeed may react upon his family and