late of

such, that if the above bounden G. H. shall personally appear at the next -(general quarter sessions of the peace, or general gaol delivery) to be holden at in and for the said county, and then and there give such evidence as he knoweth, upon a bill of indictment, to be exhibited by A. B., of- yeoman, to the grand jury, against E. F., labourer, for (feloniously stealing, the property of the said A. B. [or stating shortly the offence]) and in case the said bill be found a true bill, then if the said G, H. shall then and there give evidence to the jurors that shall pass upon the trial of the said E. F. upon the said bill of indictment, and not depart thence without leave of the court, then this recognizance to be void, or else to remain in its full force.

If, in the opinion of the justice, the felony is clearly made out against the prisoner, he should upon no account be admitted to bail: but if the justice entertain a reasonable doubt of his guilt, then under the 4 & 5 V. c. 24, § 2, the prisoner, even in cases of felony, (excepting murder) may be admitted to bail; but in such case the act expressly requires, that if there be but one magistrate present, he shall be detained until he be taken before two justices, who are by the said act empowered to admit the prisoner to bail. It would therefore be wrong for any one justice, in a case of felony, to admit to bail under any circumstances; but by § 3 of the same act, one justice is competent to bail in cases of misdemeanor: under this act the prisoner is entitled to cross-examine the witnesses against him, but the justice or justices are not obliged to hear any evidence on his behalf, unless it shall appear to them to be meet and conducive to the ends of justice to hear the same.

If the two justices should determine that the case is a proper one in which to receive bail for the prisoner's appearance, the amount of such bail will of course be left to the discretion of the justices, who will take care that a sufficient amount is required, from good and sufficient sureties, to insure the appearance of the accused: and if the prisoner be unable to procure such bail, he should then be committed by two justices to gaol until he find such bail, or be otherwise delivered by due course of law. On the other hand, if the case be clearly made out against the prisoner, and the justice or justices entertain no reasonable degree of doubt as to the prisoner's guilt, the prisoner should then be committed and not admitted to bail. The 4 & 5 V. c. 24, also requires that the justice or justices shall subscribe all such examinations, informations, bailments and recognizances, and deliver or cause to be delivered the same to the proper officer of the court in which the trial is to be, before or at the opening of the court.

County of

to wit.

}

Warrant of Commitment.

J. P., esquire, and C. D., esquire, two of her Majesty's Justices of the Peace for the said County, to the Constable of, in the said County, and to the Keeper of the Common Gaol at - in the said County :—

day of

These are to command you the said Constable, in her Majesty's name, forthwith to convey and deliver into the custody of the said Keeper of the said Common Gaol, the body of E. F., charged this day before us, the said Justices, on the oath of A. B., of farmer, and others, for that the said E. F., [on the in the year of our Lord at in the said County, ten pieces of the current gold coin of this province called sovereigns, one woollen cloth coat, and one linen shirt, of the monies, goods and chattels of the said A. B., feloniously did steal, take and carry away], and you the said Keeper are hereby required to receive the said E. F. into your custody, in the same Common Gaol, and him there safely to keep until he shall be thence delivered by due course of law, [or if it be determined to admit him to bail, then say, "until he shall enter into recognizance, with two sufficient sureties, himself in pounds, and each of the said sureties in — pounds each, to be taken before us, or any two of her Majesty's Justices of the Peace for the said County, for his appearance before the Justices at the next General Quarter Sessions of the Peace or General Gaol Delivery, to be holden in and for the said County, then and there. to answer to our said sovereign lady the Queen, for and concerning the felony aforesaid," (or until he shall be thence delivered by due course of law). Herein fail you not.

Given under our hands and seals the of our Lord 18

day of

in the year

The Recognizance of Bail.

County of

Be it remembered, that on the

day of, in

to wit.

the

-year of the reign of Queen Victoria, E. F. -, yeoman, and J. K. of

of -, yeoman, G. H. of yeoman, came before us, J. P. and R. L., esquires, two of her Majesty's Justices of the Peace for the said County, and severally acknowledged themselves to owe to our said lady the Queen; that is to say, the said E. F. the sum of pounds, and the said G. H. and J. K. the sum of pounds each, to be respectively levied of their lands and tenements, goods and chattels, if the said E F. shall make default in the performance of the condition endorsed (or hereunder written).

The condition of this recognizance is such, that if the within (or above) bounden E. F. shall personally appear (at the next General Quarter Sessions of the Peace or General Gaol Delivery) to be holden in and for the said County, then and there to answer to our said sovereign lady the Queen, for and concerning the felonious taking and stealing of, the property of A. B. of, yeoman, [describing the case shortly], with the suspicion whereof the said E. F. stands charged before us the said Justices, and to do and receive what shall by the Court be then and there enjoined him, and shall not depart the Court without leave, then the within (or above) written recognizance shall be void.

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 of course; but if he be in prison the Justices, upon application, issue the following

}

Warrant of Deliverance.

County of, J. P., esquire, and R. L., esquire, two of her to wit. Majesty's Justices of the Peace for the said County, to the Keeper of her Majesty's Gaol at, in the said County. Forasmuch as A. B., late of in the said County, labourer, hath before us found sufficient sureties for his appearance before the Justices at the next General Quarter Sessions of the Peace, (or before her Majesty's Justices at the next General Gaol Delivery), to be holden in and for the said County, to answer to our sovereign lady the Queen for and concerning the [describing the offence shortly, as in the recogn zance], for the suspicion whereof he was taken and committed to your custody at the said gaol; We therefore hereby command you, on behalf of our sovereign lady the Queen, that if the said A. B. do remain in your custody 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

in the County aforesaid,

It is in the discretion of a magistrate, when he takes the examination of a prisoner, whether he will allow the presence of an attorney or other legal adviser, either for the prisoner or prosecutor: it cannot in either case be claimed as a matter of right, as information might thereby be obtained and conveyed which would defeat the course of justice. In the case, how. ever, of a trial or summary conviction, before a magistrate, there is a difference; in the latter case, it is reasonable that a party upon his trial should have professional assistance.-Cox v. Coleridge, 1 B. & C. 37; R. v. Barron, 3 B. & A. 432; R. v. Js. of Staffordshire, 1 Chit. Rep. 217.

It seems that a magistrate may commit a party for a con tempt, who makes use of scandalous and insulting language to him whilst in the execution of his office; but as such a commitment is by way of punishment, it must be made by warrant, in writing.-Mayhew v. Locke, 7; Taunt. 63; 2 Marsh. 377; R. v. Revel, 1 Str. 420; and must not be a general one till the party is discharged by due course of law," but must be for a time certain.-R. v. James, 5 B. & A. 894. The better course for a magistrate to adopt in such cases is, first, to require the offender to find sureties for his good behaviour, and in default of his doing so, then to commit him until the next quarter sessions, unless he sooner find such

sureties. and enter also into his own recognizance for his good behaviour.-R. v. Langley, 2 Ld. R. 10; 30 per Holt. C. J. See also title " Contempt, p. 198."

A justice of the peace is empowered, in all matters properly brought before him in his judicial character, or by particular statutes, to administer an oath; but it is very questionable how far he is justifiable in taking a voluntary affidavit, in any extra judicial matter, as is now too frequent a practice upon every petty occasion; for it is more than possible that by such idle oaths, a man may frequently in foro conscientia incur the guilt, and at the same time evade the penalties of perjury.4 Bl. Com. 137. Lord Cooke, indeed, says, that it is a high contempt to administer an oath not warranted by law, and that the offence is punishable by fine and imprisonment.-3 Inst. 165; and in a case, Lord Kenyon said, that "he did not know but a magistrate subjected himself to a criminal information for taking a voluntary extra-judicial oath."-Wm. Prec. 14; 3 Burns J. 588.

Of their Liability, Indemnity, Protection.

First-As every person ought to be heard in his own defence before he is convicted, if a justice therefore, in the case of a summary conviction, proceed against a party without previously summoning him to appear, it is such a misdemeanor as will render him liable to a criminal information.-1 Salk. 181. If a justice also will not, on complaint to him made, execute the duties of his office as a magistrate, or is guilty of any wilful misconduct, the party grieved may not only move for an information, but may also apply to put him out of the commission.-Cromp. 7; 2 Atk. 2; 1 T. R. 692; 7 T. R. 374. Where a justice, however, refuses to proceed in any matter which he is authorised or required to do by act of parliament, and his refusal does not arise from any corrupt or improper motive, the proper course for the party complaining is to move for a mandamus to compel him to proceed.-R. v. Todd, 1 Str. 530. Where a criminal information is applied for against a magistrate, the question for the court is not whether the act done be found on investigation to be strictly right or not, but whether it proceeded from any unjust, oppressive or corrupt motive, or from mistake or error only in the latter case, the court will not grant an information, but leave the party complaining to his remedy by action or indictment; for it must be a case of clear and apparent partiality, or wilful misbehaviour, to induce the court to proceed by information against a magistrate.-R. v. Barron, 3 B. & A. 432; 1 Burr. 556; 2 Burr. 1162. The party complaining, also, must make a prompt

application to the court, otherwise this proceeding will not be entertained: thus, where the facts complained of against a magistrate took place twelve months before hand, an information was refused.-R. v. Bishop, 5 B. & A. 612. Neither is a justice liable to be punished both ways-that is, criminally and civilly; for before the court will grant an information, they will require the party to relinquish his civil action, if any such is commenced-R. v. Fielding, 2 Burr. 719; and so in the ease of an indictment, the attorney general, on application, will grant a nolle prosequi, if it appear to him a prosecutor is determined to carry on a civil action at the same time.—Ib. When a justice is convicted on an information, he must appear in person to receive judgment.-R. v. Harwood, 2 Str. 1088; 3 Burr. 1716, 1786. A justice of the peace, however, is upon all occasions strongly protected by the law in the just execution of his office; for, though the judgment be wrong, yet if his intention is pure, the Court of King's Bench will never interfere by way of punishment.-R. v. Young, 1 Burr. 556; R. v. Cox, 2 Burr. 785. Nor will the court even grant a mandamus against him, to command him to do what may render him liable to an action.-R. v. Dayrell, 1 B. & C. 4S5. Where a magistrate, however, in committing a party for further examination, commits him for an unreasonable length of time, this has been lately determined to be altogether a void commitment, and to render him liable to an action of trespass.-Davis v. Capper, K. B. Mich. T. 1829.

Calling a justice of the peace "a rascal, a villain, and a liar," when spoken of him as a justice, are actionable, as well as indictable.—2 Str. 617, 1168; 2 Ld. R. 1396; R. v. Revil, 1 Str. 420. With respect to actions against justices of the peace, the law affords them ample protection against the claims of a vindictive or litigious party; thus by 24 G. II. c. 44, no writ can be issued against a magistrate, for anything done by him in the execution of his office, until notice in writing of the intended process shall be delivered to him, or left at his usual place of abode, by the attorney or agent for the party who intends to sue, at least one calendar month before the suing out or serving the same, in which notice must be clearly expressed the cause of action, and on the back, the name of the attorney or agent indorsed, with the place of his abode.

See further on this subject, title "Action." p. 9.

*By 2 W. c. 4, entitled, "An act to facilitate summary proceedings before justices of the peace, and to afford to such jus tices reasonable protection in the discharge of their duty;" it is enacted by § 2, That in all cases in which two or more justices are required to hear and determine any complaint, one