Condition of bond.

Recognizances

of bail.

8. 63.

has fixed the amount : and it is usual to make the amount in the recognizance, for which the accused is bound, double the amount for which each of the sureties is bound. If a Justice, in cases where he is bound to take bail, ask such excessive bail as amounts to a denial, he is liable to action and indictment.

§ 787. The condition of the recognizance is, that the accused shall appear at the time and place of his trial, and there surrender to take his trial, and not to depart from the Court without leave. The time and place of trial would be the same as in case of commitment in the first instance. (Ante, § 769.)

§788. The Justice having been satisfied of the solvency J.P. Act, 1866 of the proposed surety or sureties, must thereupon take the recognizances (53) of the accused and his surety or sureties, Form No. 19. conditioned for his appearance at the time and place of trial, and that he will then surrender and take his trial, and not depart the Court without leave.

Notice thereof.

§ 789. Notice thereof should be at the same time given to the accused and his bail, in the form provided by the Form No. 10a. Statute (54).

Return of

§ 790. The recognizances of bail are to be returned by recognizances. the examining Justice, along with the depositions, &c., to the officer of the Court where the trial is to take place. (Ante, §§ 746, 747.)

Bail by

examining Justice, after committal.

Bail on certificate, by another Justice. Sec. 62.

The same mode of proceeding is to be adopted when the examining Justice takes bail after the committal, and before the trial.

§ 791. In cases where the examining Justice has in obedience to the Statute, or in the exercise of his discretion, (see ante, § 785,) certified his consent to the accused party being bailed, and the amount of bail which ought to be required, any Justice of the Peace being at the gaol in which the ac

cused is in custody, may on the production of such certificate admit the accused to bail in the manner above mentioned.

sureties after

§ 792. Provision is made by the Statute for cases in Taking recogwhich it may be inconvenient for the surety or sureties to nizances of attend at the gaol to join with the accused in the recog- committal, nizance of bail. In such cases, the committing Justice may away from gaol. make a duplicate of the certificate, and upon the pro- J.P.Act, 1866, duction thereof to any Justice, such Justice may take the recognizance of the surety or sureties in conformity with the certificate; and the same is then to be transmitted to the keeper of the gaol.

This recognizance being produced along with the certificate on the warrant of commitment, to any Justice who may be at the gaol, he may proceed to take the recognizance of the accused, and order him to be discharged out of custody as to that commitment, in the following manner.

8. 62.

deliverance.

§ 793. Whenever a person already committed for trial is Warrant of admitted to bail for the same offence, the Justice or Justices Sec. 65. who so admit him must send or cause to be lodged with the keeper of the gaol in which such person is in custody a warrant of deliverance (38) under his or their hand and seal or Form No. 71. hands and seals, requiring the keeper to discharge him if he be not detained for any other offence; and when such warrant of deliverance has been delivered to or lodged with the gaoler, it is his duty forthwith to obey the same and discharge the accused, if he has no detainer against him.

§ 794. If the committing Justice think fit, he may re- Notice of bail. quire, in the certificate of consent to bail, that the accused shall give the prosecutor, or his solicitor, reasonable notice

of his intention to put in bail, with the names, abodes, and Form No. 76. qualities of his proposed sureties.

§795. In cases of misdemeanour in which the Justices Where party are obliged to admit the accused to bail-if he has been entitled, any Justice may committed, he may apply to any of the visiting Justices, or bail after to any other Justice, before the first day of the sitting of the

committal.

8.63.

J.P.Act, 1866. Court at which he is to be tried, or before the day to which such sitting may be adjourned, to be admitted to bail; and such Justice shall so admit him in the manner above described.

Justice.

Ibid.

Sending § 796. When any recognizance is taken by any but the recognizance committing Justice or Justices, the Justice taking it must to committing transmit it to the committing Justices or one of them; and the committing Justices must transmit the recognizances of bail, as well as those of the prosecutor and witnesses, along with the depositions and statement of the accused, as above mentioned. (Ante, §§ 746, 747.)

Right of sureties to have accused retaken.

Sec. 75.

Ordering prosecution for perjury. 14 and 15 Vict.

Q. 100, s. 19.

§ 797. After persons have become bound as sureties for the appearance of an accused party, they have a right to look after him, and are deemed to have the custody of him; and if they have reason to believe that he is likely to flee and not appear to be tried, they may retake him, and detain him, and take him before a Justice, who may commit him in discharge of his bail, or make him find new sureties. Or the sureties may make a complaint before a Justice, and obtain a warrant for the apprehension of the accused,—a course which tends to prevent breach of the peace.

ORDERING PROSECUTION FOR PERJURY.-RESTORATION OF

PROPERTY TO PRISONER.

§798. Justices have no general authority to order prosecutions to be instituted; but by the 19th section of Lord Campbell's Act, 14 and 15 Vict. c. 100, (an Act which was adopted in this Colony by "The English Acts Act, 1854," and the 19th section of which is left unrepealed by "The Indictable Offences Acts Repeal Act, 1867,") powers are granted to Justices, which have been re-enacted in "The J.P. Act, 1866, Justices of the Peace Act, 1866," s. 140. That section provides that if it shall appear to any Justice that any person has been guilty of wilful and corrupt perjury, in any affidavit, or in any deposition, examination, answer, or other proceeding made or taken before him, it is competent for him to

s. 140.

direct such person to be prosecuted for such perjury, in case J.P. Act, 1866, there shall appear to him a reasonable cause for such s. 140. prosecution; and to commit such person so directed to be prosecuted until the next sittings of the Supreme Court within the Province or district within which the perjury was committed; unless such person shall enter into a recognizance with one or more sufficient surety or sureties, conditioned for the appearance of such person at such sitting.

§ 799. The Justices are further authorized to bind over Binding over. any person they think fit to prosecute or give evidence in such case, and to give to such person bound to prosecute a certificate that such prosecution has been directed; upon the production of which, the costs of the prosecution are to be Costs of proallowed by the Supreme Court, when any persons shall be prosecuted or tried pursuant to such direction; unless the Court shall otherwise direct and when allowed by the Court, the amount is to be allowed and paid by the Colonial Treasurer.

:

secution.

§ 800. It would seem inconsistent that the Justices should Caution. direct a prosecution for perjury committed in a case which they were going to send for trial.

property of

§ 801. It would appear that Justices, on admitting an Returning accused person to bail after apprehension or committal, may accused. properly order to be restored to him any money or property taken from him by the constables, which is not the subject or part of the proceeds of the crime, or useful as evidence with respect to the crime, of which he is accused, or necessary Per Patteson, for defraying the expenses of his conveyance to gaol. Accused 138. persons ought not to be deprived of money which may be useful for their defence, if there be no pretence for supposing it connected with the crime charged against them.

J., 7 Car. & P.

BINDING OVER PROSECUTOR AND WITNESSES.

§ 802. When the Justices commit a person accused of an Generally.

Who to be prosecutor.

Married women and minors.

indictable offence, or admit him to bail, it is their duty, in order to ensure the due prosecution of the charge, to bind over the prosecutor and witnesses to appear at the trial, and prosecute or give evidence; and it would appear that they may take the recognizances of witnesses, before they decide upon sending the case for trial.

§ 803. It is most common in the English system of prosecution, to treat the person to whom the direct injury is done by a crime-e.g. the owner of stolen goods, or the person who receives a personal injury, &c.-as the prosecutor, and to bind him over, and so render him responsible for the conduct of the prosecution.

But when such person is not desirous of undertaking the duty of prosecution, it is not unusual in England,-(in some places it is the usual course, whether such person be willing or not; and in this Colony it would seem specially convenient,)—to bind over either some constable who can give evidence in the case, or the head constable or inspector of police of the district, as prosecutor. (1)

$804. If the witness be a married woman, or a minor under the age of fifteen years, the Justices may, if they think J.P.Act, 1866, fit, require that the husband of such woman, or the father of such minor, or some other sufficient surety, shall enter into a recognizance conditioned for the appearance of such person to give evidence.

6. 59.

nizances.

Form of recog- § 805. The form of recognizance to prosecute,—or to Form No.10a. prosecute and give evidence,—or to give evidence only,—is given in the Schedule to the Act (53).

Sec. 59.

Person.

(1.) It ought to specify the profession, art, mystery, or trade of every person entering into or acknowledging the same, his Christian and surname, and the place of his residence, and if that be in a city or town, the name of the street, and the number (if any) of the house in which he resides, and whether he is owner, tenant, or lodger.

(1) See the note to § 717, ante.