We will now consider when and how a person may be admitted to bail for his appearance at the trial, and make some observations respecting bail.

Bail (from the French bailler, to deliver) signifies the Definition delivery of a man out of custody, upon the undertaking of of bail. one or more persons for him that he shall appear at a day limited, to answer and be justified by the law. (1 Hale's Sum. 96.) It is a delivery or bailment of a person to his sureties, upon their giving, together with himself, sufficient security for his appearance, he being supposed to continue in their friendly custody instead of going to prison.

In some cases justices have a discretion as to admitting Justices a person to bail; in others they are bound to do so. The admitting power of a magistrate to accept or refuse bail in cases of mis- to bail. demeanor, when the accused is entitled to be admitted to bail, is a judicial duty, and an action will not lie against the magistrate for a mistake made by him in the performance of this duty. (Linford v. Fitzroy, 18 L. J. M. C. 108.)

Where any person appears, or is brought, before a justice of the peace "charged with any felony, or with any assault with intent to commit any felony, or with any attempt to commit any felony, or with obtaining or attempting to obtain property by false pretences, or with a misdemeanor in receiving property stolen or obtained by false pretences, or with perjury or subornation of perjury, or with concealing the birth of a child by secret burying or otherwise, or with wilful or indecent exposure of the person, or with riot, or with assault in pursuance of a conspiracy to raise wages, or

E

PART IV. assault upon a peace officer in the execution of his duty, or upon any person acting in his aid, or with neglect or breach of duty as a peace officer, or with any misdemeanor for the prosecution of which the costs may be allowed out of the county rate" (a), such justice of the peace may, in his discretion, admit the accused to bail, upon his procuring and producing such surety or sureties as in the opinion of such justice will be sufficient to ensure the appearance of the accused at the trial for such offence; and thereupon such justice must take the recognizance of the accused and his surety or sureties, conditioned for the appearance of the accused at the trial, and that he will then surrender and take his trial, and not depart the court without leave. (11 & 12 Vict. c. 42, s. 23; Linford v. Fitzroy, 13 Q. B. 240; 18 L. J. M. C. 108.) As to the power of metropolitan police magistrates to admit to bail, see 2 & 3 Vict. c. 71, s. 36.

Where a person is charged before a justice with any indictable misdemeanor other than the above, such justice, after taking the examinations in writing, instead of committing the accused to prison for such offence, must admit him to bail in manner aforesaid, or if he has been committed to prison any one of the visiting justices to such prison, or any other justice of the peace for the same county, &c., may admit the accused to bail on his application before the first day of the sitting or session at which he is to be tried, or before the day to which it is adjourned. (11 & 12 Vict. c. 42, s. 23; 2 Hale, 127.)

Where a person charged with an indictable offence is committed to prison to take his trial for the same, the justice or justices who have signed the warrant for his commitment, in his or their discretion may, before the first day of the sitting or session at which he is to be tried, or before the day to which it may be adjourned, admit the accused to bail in manner aforesaid. (11 & 12 Vict. c. 42, s. 23.) By this section in certain cases where the committing justices are of opinion that the accused ought to be admitted to bail they may certify, on the back of the warrant of commitment, their consent to his being bailed, and the amount of bail required, and the accused may then be bailed in the mode pointed out by this section.

No justice of the peace can admit any person to bail for treason; nor in such a case can a person be admitted to bail

(a) In respect of what misdemeanors costs may be so allowed, see 7 Geo. 4, c. 64, s. 23, and 14 & 15 Vict. c. 55, s. 2, noticed Chapter 23. When the costs of the prosecution of a bankrupt can be so allowed, see 32 & 33 Vict. c. 62, s. 17.

except by order of one of H. M.'s secretaries of state, or by CH. XIV. the Queen's Bench Division, or a judge thereof in vacation. (s. 23.)

Where justices admit to bail a person in prison for an offence, they should lodge with the keeper of the prison a warrant of deliverance. (11 & 12 Vict. c. 42, s. 24.)

How recognizances fixed by a court of summary jurisdiction may be entered into and how they may be enforced, &c., see Chapter 37.

to bail.

When a coroner's jury find a verdict of manslaughter the Coroner coroner or deputy-coroner before whom the inquest was admitting taken may accept bail with good and sufficient sureties for the appearance of the accused at the next assizes, and general gaol delivery for the county in which the inquest was taken. (22 Vict. c. 33, s. 1; post, Chapter 18.) The recognizances have to be returned to the assizes. If the coroner's jury find a verdict of murder, or if the coroner or deputy-coroner refuse bail after a verdict of manslaughter, an application to admit the accused to bail must be made to the Queen's Bench Division of the High Court of Justice, or to a judge as mentioned infra.

Bench

The Queen's Bench Division of the High Court of Justice, Queen's or a judge thereof sitting at chambers, has a discretionary (2) Division Hale, 129) power of admitting to bail any prisoner charged admitting with treason, felony, or misdemeanor, or on suspicion thereof, to bail. brought before such court or judge by a writ of habeas corpus or otherwise, according to the course of that court. The Queen's Bench Division or a judge thereof may but will seldom admit a prisoner to bail when the magistrates have refused to do so. Such Division or judge has a discretionary power of directing a prisoner to be admitted to bail before a justice of the peace, and this power will be exercised where it would be inconvenient to bring the prisoner or his bail before the court or judge. (R. v. Jones, 1 B. & A. 209.) The mode of getting a prisoner admitted to bail by the court or a judge is by obtaining leave, upon an affidavit veritying a copy of the depositions and a certified copy of the commitment, to issue and issuing a habeas corpus ad subjiciendum and a writ of certiorari, to bring the prisoner and the depositions on which he has been committed before the court or judge. Upon the return of those writs, the question whether the prisoner ought to be bailed is argued and considered, and the application to admit to bail is granted or refused. If granted, the proper officer of the court takes the recognizance. In country cases, to avoid the expense and inconvenience of bringing the parties to town, the practice is to a ply for a

PART IV. rule to show cause why the prisoner should not be admitted to bail before a justice in the county where the prisoner is in custody, and at the same time to apply for a certiorari. Notice is given in the same way as when a writ of habeas corpus is applied for; and the rule may be opposed as in the former case. If the rule be made absolute, upon its being produced to a justice, he will admit the prisoner to bail. Amount of The amount of bail must, of course, depend on circumbail. Who stances. Excessive bail ought not to be required. (1 W. & may be (a). M. sess. 2, c. 2.) The surety or sureties should be sufficient

Bail; how dis

charged.

nizance.

to ensure the appearance of the accused at the trial, and they may be examined, on oath, as to their means. (R. v. Badger, 4 A. & E. 468.) The defendant's solicitor may be bail for him. (1 Doug. 466 n.) Neither a married woman nor an infant can be bail. The justices, &c., admitting to bail may, in their discretion, order that a reasonable notice of bail, usually 24 or 48 hours, be given to the prosecutor. The recognizance need not be signed. When an accused person in custody is admitted to bail by a justice of the peace other than the committing justice, the recognizance of bail must be transmitted to the committing justice or justices, or one of them, to be transmitted with the examinations to the proper officer. (11 & 12 Vict. c. 42, s. 23.)

Bail may discharge themselves by taking and surrendering the defendant before the court or magistrate before whom he has been bailed, by whom the defendant will be committed to prison; but in such a case it is competent to the defendant to find new sureties. (2 Hale, 124.)

Forfeiture If the condition of a recognizance be broken, the recogof a recognizance is forfeited, and, on its being estreated, the parties become debtors to the Crown for the sums in which they are respectively bound. As to estreating and enforcing recognizances, see 3 & 4 Will. 4, c. 99, s. 29; 3 Geo. 4, c. 46, s. 2; Burn's Justice tit. Recognizances. If the principal do not appear and the recognizance be forfeited and the penalty be paid by the bail, the principal continues amenable to the law whenever he can be taken.

Perso

Whosoever, without lawful authority or excuse (the proof nating bail. whereof lies on the party accused), in the name of any other person, acknowledges any recognizance or bail before any court or person lawfully authorized in that behalf, is guilty of felony. (24 & 25 Vict. c. 98, s. 34.)

(a) As to a contract to indemnify bail being illegal, see Wilson v. Strugnell, 50 L. J. M. C. 145.

CHAPTER XV.

COMPELLING ATTENDANCE OF WITNESSES AT TRIAL.

By recognizances for attendance at trial
By subpoena

Person present in court

Where witness in custody

By prisoner

Protection of witnesses from arrest

p. 77.

p. 77.

p. 78.

CH. XV.

for attendance at

We have already noticed (ante, p. 69) that the justices By recogbefore whom the preliminary examination of the accused nizances takes place have power to compel the witnesses examined before them to enter into recognizances to appear, and give trial. evidence at the trial of the accused; and coroners, as noticed, post, have also such power under the 7 Geo. 4, c. 64, s. 4. If a witness does not appear in pursuance of his recognizance, it may be estreated and the penalty levied. A witness refusing to enter into such a recognizance may be committed to prison until the trial by the justices or coroner. (Ante, p. 69. Bennett v. Watson, 3 M. & S. 1.)

The attendance of witnesses, where they have not entered By into recognizances, may be compelled by writ of subpoena, subpoena which may be issued from the Crown Office (Rex v. Ring, 8 T. R. 585), or may be made out by the clerk of the peace of the sessions, or the clerk of the assize. It is better to sue it out of the Crown Office, if an application for an attachment for non-attendance is likely to become necessary. By the 45 Geo. 3, c. 92, s. 3, the service of a subpoena on a witness in any one part of the United Kingdom, for his appearance on a criminal prosecution in any other part of the same, is as effectual as if it had been in that part where he is required to appear. (Rex v. Brownell, 1 A. & E. 598.) The prosecutor ought not to include more than four persons in one subpoena. (Doe v. Andrews, Cowp. 845.) A copy should be made out for each witness, and served on him personally, a reasonable time before the day of trial, and at the time of service the writ should be shown to him. There is no statutory provision as to the payment or tender of a