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become a question of prudence whether he will adduce the evidence then (supposing the magistrates allow him to do so), or reserve it for the trial. If he be sure that the magistrate, upon hearing the evidence, will dismiss the charge against his client, of course he will adduce it then; but if not, his going into any detail of the evidence then, or even mentioning the nature of it, or saying more than merely that he has a good defence generally, may possibly prejudice his client's case at the trial.

As to summary convictions.] What has now been stated, as to the care that should be taken in getting up and arranging the proofs of a case, is particularly applicable in cases of summary convictions before magistrates. In commitments, any defect in the evidence may in some measure be remedied at the trial; but in the case of summary convictions, if the evidence for the prosecution is incomplete, the defendant will be acquitted, the informer or prosecutor probably ordered to pay costs, and, as the decision is final, he is without remedy. As much care, therefore, should be taken in getting up a case for a summary conviction, as in getting up a case for trial at nisi prius.

As to proceedings under the poor-laws.] Before an application is made for an order of removal, great care should be taken to collect all the evidence that can be had as to the real place of settlement. The pauper should first be examined; and from his evidence a clue may be obtained to other witnesses and proofs. This should be particularly attended to; as a mistake in the place of settlement, or, indeed, in the nature of the settlement, may involve the parish in much fruitless litigation. In laying the case before the magistrates, therefore, it will be necessary to give such evidence (that of the pauper, for instance) as may be necessary to prove the intended settlement, and induce the magistrates to grant the order. Care must be taken, also, to state the particulars of the settlement in the examination, with the same degree of certainty, as is requisite in stating the grounds of appeal against an order; for any defect in this respect may be made the subject of an appeal. If afterwards, however, there should be an appeal against the order, the respondents will not be confined at the trial to the evidence contained in the examination before the magistrates, but will be allowed to prove the settlement there mentioned, by any other evidence they may think fit.

As to proceedings at sessions.] The duties of an attorney with respect to proceedings at the general quarter sessions, are so fully detailed in a work lately published by me on the practice of that court, that I shall only here refer to it; adding

merely, that upon the manner in which a case is got up for sessions, and particularly in appeals, depends very often the result.

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As to breaches of trust by attornies, see tit. Agent," ante, p. 14.

BAIL.

In what cases.] In treason, justices of the peace cannot admit the accused party to bail; Stat. Westm. 1, c. 15; they must refer him to the court of Queen's Bench, who alone have authority to do so.

In misdemeanors, except for breach of prison, any one or more justices may admit the party to bail; see stat. Westm. 1, c. 15; and it is usual to do so, the justice exercising his discretion merely as to the amount for which he will require bail. See R. v. Badger et al. 4 Q. B. 468.

In felonies, one justice of peace cannot admit the accused party to bail; this can only be done by two justices at the least. Where one justice alone is present, if the evidence against the accused be complete, or such as to raise a strong presumption of guilt, he must commit him; but if “the whole evidence given before him shall be such as neither to raise a strong presumption of guilt, nor to warrant the dismissal of the charge, such justice shall order the person charged to be detained in custody until he or she shall be taken before two justices at the least." 7 G. 4, c. 64, s. 1. And formerly even two or more justices could admit the accused party to bail in felony, only in cases where the evidence against him was not such as to raise a strong presumption of guilt, or to require his committal, or where the evidence adduced in his behalf (which the justices might allow, if they thought it conducive to the ends of justice to do so) appeared in their opinion to weaken the presumption of guilt, but where notwithstanding there appeared to be sufficient ground for judicial investigation. Id. But now, by stat. 5 & 6 W. 4, c. 33, s. 3, reciting that in many cases the taking bail for the appearance of persons charged with felony, may be safely admitted, without endangering the appearance of such persons to take their trial in due course of law; and it is therefore expedient in such cases.

to amend and extend the provisions of the above stat. 7 G. 4, c. 64,-it is enacted, "that it shall be lawful for any two justices of the peace, if they shall think fit, of whom one or other shall have signed the warrant of commitment, to admit any person or persons charged with felony, or against whom any warrant of commitment for felony is signed, to bail, in the manner and according to the provisions directed by the said recited act, in such sum or sums of money, and with such surety or sureties as they shall think fit, and notwithstanding such person or persons shall have confessed the matter laid to his or their charge, or notwithstanding such justices shall not think that such charge is groundless, or shall think that the circumstances are such as to raise a presumption of guilt." From the manner in which this section is worded, it might be imagined that it gave authority to admit to bail, only in cases where the accused party had already been committed. But the words "of whom one or other shall have signed the warrant of commitment," mean merely, that if the party have been committed, the committing magistrate must be one of those who afterwards admit him to bail; there is no doubt that if he be originally brought before two magistrates, they may bail him if they will, without first committing him.

Refusing to take bail, where by law it ought to be taken, is, it seems, a misdemeanor; Hawk. c. 15, s. 13; and excessive bail ought not to be required. 1 W. & M. sess. 2, c. 2. Admitting a party to bail, who is not bailable, is also punishable; 2 Hawk. c. 15, s. 7; so, for taking insufficient bail, a justice may be fined by the justices of assize, if the party do not appear to take his trial according to the condition of his recognizance. Id. s. 6; and see 7 G. 4, c. 64, ss. 5, 6.

When the justices refuse to bail the accused party, he may apply to the Court of Queen's Bench; and the judges there, upon a consideration of the case as it appears from the depositions taken before the magistrates, and without reference to the invalidity or validity of the warrant of commitment, may, if they think fit, either award a habeas corpus to bring him into court to be bailed; see R. v. Grieffenburgh, 4 Burr. 2179. R. v. Booth, 2 Ld. Ken. 170. R. v. Marks, 3 East, 157. R. v. Homer, Cald. 295; or in cases where it appears that the party is poor, and unable to bear the expense of being brought to court, they will grant a rule to show cause why he should not be bailed by a magistrate in the country; R. v. Jones, 1 B. & A. 209. R. v. Massey, 6 M. & S. 108; in which latter case, the rule absolute will contain all the necessary directions for the taking of the bail.

Where.] When a party is brought before justices without warrant, he may be bailed by them. Where he is apprehended under a warrant, in the county or other jurisdiction in which

it was originally granted, the bail must be taken by justices of that county, &c.; or if the warrant be backed, and the party thereupon arrested in another county, he may be bailed before the justice who backed the warrant, and another justice of the same county, where necessary, or some other justices of the same county; 24 G. 2, c. 55, s. 1. 45 G. 3, c. 92, s. 1; or before justices of the county where the warrant was originally issued.

How.] Where application is made to a justice of peace to bail a party, he may, if he think fit, (and in suspicious cases it is usually done), order that a reasonable notice of the bail, usually twenty-four or forty-eight hours, according to circumstances, shall be given to the prosecutor. And when the bail appear, whether such notice have been given or not, the justice, or the prosecutor, or any professional person on his behalf (if permitted), may examine them on oath as to their sufficiency.

If either of them be not a housekeeper, or appear not to be worth the sum for which he comes to be bail, both may be rejected. But if they both appear to be responsible persons, and housekeepers, the justice then takes their and the prisoner's recognizance of bail; which is done, by first filling up one of the common printed forms of recognizance, and then stating to the prisoner and his bail the substance of it, stating it however in the second person, "" you acknowledge yourselves to owe to our sovereign lady the Queen," &c.

Before the party is admitted to bail, the justice or justices must take his examination, and the information upon oath of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as shall be material, into writing; and shall certify such bailment in writing; and "shall subscribe all such examinations, informations, bailments, and recognizances, and deliver or cause the same to be delivered to the proper officer of the court in which the trial is to be, before or at the opening of the court." 7 G. 4, c. 64, s. 2. Where a warrant has been backed, and bail taken before the justice who backed it, the recognizance and examinations in that case, by stat. 24 G. 2, c. 55, s. 1, are to be given by the justice to the constable, and by him delivered to the clerk of assize or clerk of the peace; and it should seem that it was not intended by stat. 7 G. 4, c. 64, s. 2, to repeal this provision of stat. 24 G. 2.

Discharge of the party.] 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 a matter of course. But if he be in prison, the justice, upon application, may issue the following Warrant of Deliverance :

Berkshire: E. F. Esquire, and G. H., clerk, two of Her Majesty's justices of the peace for the said county, to the keeper of Her said Majesty's gaol at in the said county. Forasmuch as C. D., late of labourer, hath before us found sufficient sureties for his appearance before [the justices at the next general quarter sessions of the peace or" Her said Majesty's justices of gaol delivery, at the next general gaol delivery] to be holden in and for the said county, to answer to our said sovereign lady the Queen, for and concerning the [here describe the offence shortly, as in the recognizance], for the suspicion whereof he was taken and committed to your said gaol: We therefore hereby command you, on behalf of our said sovereign lady the Queen, that if the said C. D. do remain in your said gaol 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 Given under our hands and seals, at the day in the year of our Lord, 18

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