Sect. 23.

NOTE.

cannot be thus split and divided; 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 that we cannot lay down a rule which is to depend upon the peculiar facts in each case. The broad line of distinction is this, that unless the duty of the justice is simply and purely ministerial he cannot be made liable to an action for a mistake in doing or omitting to do anything in execution of that duty, unless he can be fixed with malice, which in the present case has been negatived by the jury" (Linford v. Fitzroy, 13 Q. B. 240 ; 13 J. P. 119, 474 ; 18 L. J. M. C. 108; 13 Jur. 303; 3 New Sess. Cas. 438).

Bail is taken by stating verbally to the accused and his sureties the substance of the recognizance, thus: You A. B. of and you C. D. of and you E. F. of severally acknowledge yourselves to owe to our Sovereign Lord the King the several sums following, that is to say, you the said A. B. the sum of etc.; and the recognizance is then stated in the second person also. In suspicious cases twenty-four hours', and sometimes forty-eight hours' notice of bail is usually required; when the bail appears, whether such notice has been given or not, the justice or prosecutor, or any professional person on his behalf, may examine them on oath as to their sufficiency.

It is the duty of justices to ascertain the sufficiency of the bail who tender themselves on behalf of the accused, but they ought not in any way to interfere by dissuading them from becoming bound as bail (R. v. Saunders, 2 Cox C. C. 249).

A contract to indemnify bail in a criminal case is illegal and unenforceable, and the existence of such a contract, if discovered, would certainly be an element for a justice's consideration in determining the probability of a defendant's appearance at the trial. See Herman v. Jeuchner, 15 Q. B. D. 561; 49 J. P. 502; 54 L. J. Q. B. 340; 53 L. T. 94; 33 W. R. 606; and Consolidated Exploration and Finance Co., Limited v. Musgrave, [1900] 1 Ch.11; 64 J. P. 89; 16 T. L. R. 13; 69 L. J. Ch. 11.

Accomplices. With respect to accomplices, it is necessary to observe that it is the duty of a magistrate in all cases to commit an accomplice, and not to admit him to bail, notwithstanding that it may be intended to call him as a witness on the trial. See the remarks of PATTESON, J., in Rex v. Beardmore, 7 Car. & P. 497. Recognizances under this section may be taken in accordance with s. 42 of the S. J. Act, 1879, ante, p. 196.

There is an interesting article on bail by justices at 66 J. P. 17. The Prosecution of Offences Act, 1879 (42 & 43 Vict. c. 22), s. 5, post, provides for the delivery of certificates, etc., to the director of public prosecutions in cases in which he has instituted or undertaken, or is carrying on any criminal prosecution.

24. Warrant of deliverance on bail.] In all cases where a justice or justices of the peace shall admit to bail any person who shall then be in any prison charged with the

offence for which he shall be so admitted to bail, such Sect. 24. justice or justices shall send to or cause to be lodged with the keeper of such prison a warrant of deliverance (S. 5) under his or their hand and seal, or hands and seals, requiring the said keeper to discharge the person so admitted to bail if he be detained for no other offence, and upon such warrant of deliverance being delivered to or lodged with such keeper he shall forthwith obey the same.

25. Discharge or commitment for trial.] 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, riding, division, liberty, city, borough, or place, to which by law he may now be committed, or, in the case of an indictable offence committed on the high seas, or on land beyond the sea, to the common gaol of the county, riding, division, liberty, city, borough, or place, within which such justice or justices shall have jurisdiction, to be there safely kept until he shall be thence delivered by due course of law, or admit him to bail as herein before mentioned.

Committal or Discharge of Accused.-The duty of a justice is in this respect similar to that of a grand jury; he is not to try the prisoner; he is not to judge whether the evidence given is sufficient to convict him, but he is simply to ascertain whether the evidence given raises a strong or even a probable presumption against the prisoner, and if so he must commit or bail him. If he think that the evidence given does not raise that presumption, and there does not appear to be any other material evidence to be brought forward against him, it will be the justice's duty to discharge him. discharge in this case is merely verbal. As to detention by a prison warder after discharge, see Mee v. Cruickshank, 66 J. P. 89.

The

As to committing for trial, see the notes to s. 18 of this Act, ante, p. 344, and Cox v. Coleridge, ante, p. 349.

Sect. 25.

NOTE.

As to offence of newspaper libel, see ante, p. 350.

For procedure in indictable cases within the Vexatious Indictments Act, 1859 (22 & 23 Vict. c. 17), see that Act in the Appendix, and cases there noted.

See COCKBURN, C.J.'s, judgment in R. v. Carden, ante, p. 348, note to s. 18 of 11 & 12 Vict. c. 42, as to justice's duty in committing for trial.

As to meaning of "committed for trial," see 52 & 53 Vict. c. 63, s. 27, post.

Discretion of Justices.-The justices in a criminal charge brought before them have a discretion as to what course they will adopt under the circumstances; therefore, where upon a charge of perjury before two justices, it appeared that the perjury was alleged to have been committed in a deposition made in a suit then pending in the Ecclesiastical Court, to which both the informant and the person charged were parties, and the justices declined further to proceed in the matter, the court refused to compel them to proceed, as they had a discretion in the matter which they had properly exercised (Reg. v. Ingham, 13 J. P. 379 ; 19 L. J. M. C. 69). See also R. v. Evans and Others, 54 J. P. 471; 62 L. T. 570; 17 Cox C. C. 81.

Duty of Justices to Dismiss or Commit Accused.-Where a complaint of a criminal nature is made before justices, which, upon the evidence, amounts to an offence not within their jurisdiction to determine, it is their duty either to dismiss the complaint or to commit the person charged for trial by a jury. Therefore, where an information charged a man with unlawfully assaulting and abusing a woman, and the only evidence was that of the woman, who swore to a rape, it was held that the justices ought either to have committed for trial, or if they disbelieved the woman, to have dismissed the case; and that they were not justified in convicting the man under the Criminal Procedure Act, 1853 (16 & 17 Vict. c. 30), of an aggravated assault. In In re Thompson, 25 J. P. 166; 30 L. J. M. C. 19; 7 Jur. 48, the judges being equally divided, the rule nisi which had been granted in the case for a habeas corpus ad subjiciendum, dropped, but see the note to s. 14 of 11 & 12 Vict. c. 43, ante, p. 85.

Commitment. If the justice should consider that sufficient evidence has been adduced to warrant him in committing the accused for trial, he shall commit him either under the provisions of s. 3 of the Prisons Act, 1833 (5 & 6 Will. 4, c. 38), which provides that justices may commit offenders to any house of correction situate near to the place where the assizes are to be held at which they are to be tried, or in accordance with ss. 24, 27, and 28 of 40 & 41 Vict. c. 21 (The Prisons Act, 1877).

See also as to committal for trial the Assizes Relief Act, 1889 (52 & 53 Vict. c. 12), post, in the Appendix.

As to commitment of prisoners in certain counties of cities and towns corporate to be tried at assizes held for adjoining county, see 14 & 15 Vict. c. 55, s. 19, post, Appendix.

As to the execution of warrants of commitment by county Sect. 25. constables, see the County Police Act, 1840 (3 & 4 Vict. c. 88), s. 33.

In R. v. Ward, 15 Cox C. C. 321, it was held that the general authority given by the commission of general gaol delivery to justices of assize to deliver the gaols of all manner of prisoners found therein confers no jurisdiction over prisoners directed by statute to be dealt with by the court of general or quarter sessions, though found within the county prison. A commitment, therefore, of such a prisoner to the assizes will be bad, and will entitle the prisoner to his discharge from custody.

As to taking depositions of witnesses for the defence, see 30 & 31 Vict. c. 35, post, Appendix, and note to s. 18 of this Act, ante, pp. 346 et seq.

26. Conveyance to gaol.] The constable or any of the constables or other persons to whom the said warrant of commitment shall be directed shall convey such accused person therein named or described to the gaol or other prison mentioned in such warrant, and there deliver him, together with such warrant, to the gaoler, keeper, or governor of such gaol or prison, who shall thereupon give such constable or other person so delivering such prisoner into his custody a receipt (T. 2) for such prisoner, setting forth the state and condition in which such prisoner was when he was delivered into the custody of such gaoler, keeper, or governor; and in all cases where such constable or other person shall be entitled to his costs or expenses for conveying such person to such prison as aforesaid, it shall be lawful for the justice or justices who shall have committed the accused party or for any justice of the peace in and for the said county, riding, division, or other place of exclusive jurisdiction, wherein the offence is alleged in the said warrant to have been committed, to ascertain the sum which ought to be paid to such constable or other person for conveying such prisoner to such gaol or prison, and also the sum which should reasonably be allowed him for his expenses in returning, and thereupon such justice shall make an order (T. 2) upon the treasurer of such county, riding, division, liberty, or place of exclusive jurisdiction, or if such place of exclusive jurisdiction shall be contributory to the county rate of any county, riding, or division, then upon the treasurer of such county, riding, or division respectively, or, in the county of Middlesex, upon the overseers of the poor of the parish or place within which the offence is alleged to have been committed, for

NOTE.

Sect. 26. payment to such constable or other person of the sums so ascertained to be payable to him in that behalf; and the said treasurer or overseers, upon such order being produced to him or them respectively, shall pay the amount thereof to such constable or other person producing the same, or to any person who shall present the same to him or them for payment: Provided nevertheless, that if it shall appear to the justice or to the justice or justices by whom any such warrant of commitment against such prisoner shall be granted as aforesaid that such prisoner hath money sufficient to pay the expenses, or some part thereof, of conveying him to such gaol or prison, it shall be lawful for such justice or justices, in his or their discretion, to order such money, or a sufficient part thereof, to be applied to such purpose.

Expenses of Conveying Prisoners to Prison.-Under this section it has been held that the treasurer of a county partly included within the metropolitan district is liable to pay out of the county rate expenses (which the prisoner has no means of defraying) incurred by a metropolitan police constable in conveying prisoners to the county gaol under warrants of commitment made by justices of the county within the district directed to the parish constable, and delivered for execution to the police constable under the Metropolitan Police Act, 1839 (2 & 3 Vict. c. 47), s. 12; and also the like expenses incurred by a metropolitan police constable under warrants of committal made by metropolitan police magistrates sitting at police courts.

But the county treasurer is not liable to pay to a police constable the expenses of re-conveying to a police court from the county gaol a prisoner who had been previously committed there for re-examination, when the warrant to bring the prisoner up again was made, not on the police constable, but upon the gaoler who had employed the police constable to re-convey the prisoner (Leverick v. Mercer, 14 Q. B. 759 ; 17 J. P. 196 ; 22 L. J. M. C. 81; and see also note to s. 26 of 11 & 12 Vict. c. 43, ante, p. 108).

In Mullins v. Surrey Treasurer, 7 App. Cas. 1; 46 J. P. 276 ; 51 L. J. Q. B. 145; 45 L. T. 625; 30 W. R. 157; 15 Cox C. C. 9, a metropolitan police magistrate having summarily convicted an offender, and adjudged her to be imprisoned, made out a warrant for her commitment, in obedience to which the plaintiff, a police constable, duly conveyed her to prison. By reason of such conveyance the plaintiff incurred certain expenses, which the prisoner had no means to defray. The magistrate subsequently made an order under 27 Geo. 2, c. 3, directed to the defendant, ordering him to pay to the plaintiff the amount of such expenses. The defendant refused to comply with the order on the ground that his liability to pay expenses of conveyance of prisoners to prison had been transferred from the county to the Secretary of State by s. 4 of the