the prisoner would be convicted upon trial. It seems to be the intention of the statute to secure to persons who may be arrested upon a charge of having committed a criminal offence, or upon suspicion thereof, an investigation into the truth or probability of the grounds of the charge, so that the accused may be discharged, if it should appear there were no sufficient grounds for his arrest.

2. Of bail and recognizance.

The justice having heard the examination and ascertained that the prisoner is not entitled to be discharged, if the offence charged is bailable and sureties are offered, he is then to admit him to bail, if he shall find that they are sufficient.

Bail is a delivery or bailment of a person to his sureties, upon their giving, together with himself, sufficient security for his appearance to answer the charge against him, he being supposed to continue in their friendly custody instead of going to jail. 4 Bl. Com., 297. Dalt. Justice, 549.

By the ancient common law of England, in all cases of felony, if the party accused could find sufficient sureties, he was not to be committed to jail, till murder was excepted by statute, so that persons might be admitted to bail before conviction almost in every case. By other statutes, the power of justices of the peace to bail in cases of treason, and several instances of aggravated felony, is taken away. 4 Bl. Com., 298. 1 Chit. Crim. Law, 95. For other offences of a dubious nature, it seems to be in the discretion of the justice whether to bail or not. But, for the smaller offences, the party accused must be bailed upon offering sufficient surety. 4 Bl. Com., 299.

By Art. VIII., Sec. 13 of the constitution of this state, it is declared "That all persons shall be bailed by sufficient sureties, unless for capital offences, where the proof is evident or the presumption great."

A commitment being only for the safe custody of the accused, wherever bail will answer the same intention it ought to be taken.

No justice of the peace shall admit to bail any person or persons charged with treason, murder, or any offence punishable with death. Gale's Stat., 238.

The circuit courts, or any judge thereof, in vacation, may bail for any crime whatsoever, be it treason, murder, or any other offence, according to the circumstances of the case. To allow bail to be taken commonly for such enormous crimes, would greatly tend to elude the public justice; and yet there are cases, though they rarely happen, in which it would be hard and unjust to confine a man in prison, though accused of the highest offence. 4 Bl. Com., 299. Dall. Justice, 553. However, by the constitution of this state, a

person charged with a capital offence must be bailed upon offering sufficient sureties, unless the proof of his guilt is evident or the presumption great.

By the statute it is provided that any justice of the peace before whom any person shall be brought, charged with any criminal offence, except a capital offence, shall, upon consideration of the facts and circumstances then proved, either commit such person to jail, admit him to bail, or discharge him from custody. In cases where the charge is for sodomy, rape, arson, burglary, robbery, forgery, or counterfeiting, requiring the presence of two justices of the peace to take the examination, they two shall have the power to bail the prisoner, commit him to jail, or discharge him from custody. Gale's Stat., 238.

If a justice of the peace should refuse to bail any person bailable, it is an offence against his liberty by the common law, and an action lies at the suit of the party imprisoned, and an indictment may be supported. 2 Hawk., 90. 1 Burn's Justice, 151. And, if he detains a prisoner who is bailable after he has offered sufficient securities, he may be fined. Dalt. Justice, 550.

Excessive bail ought not to be required, though what bail shall be called excessive must be left, in a great measure, to the justice to determine on considering the circumstances of the case. Care should be taken by the justice, in cases where the prisoner should be bailed, that he does not, under pretence of demanding sufficient surety, make so excessive a requisition as, in effect, to amount to a denial of bail. On the other hand, taking insufficient bail subjects the justice offending to punishment; but if the prisoner, who is bailed by insufficient suretics, actually appears according to the condition of the recognizance, it seems that he who admitted him to bail will be excused, as the end of the law is answered by his appearance. 4 Bl. Com., 297. But, if such insufficient sureties were taken corruptly, the justice would continue liable to an indictment. 1 Chit. Crim. Law, 102.

It is not the duty of the justice to demand bail, but the prisoner is bound to tender it, otherwise the justice may commit. him. 2 Hale, 123. He that is bailed is taken, or kept, out of jail and delivered (as it were) into the hands of his sureties, who are reputed his guardians, and who may keep him with them and imprison him. And, if the sureties do, at any time or in any case, doubt that their prisoner or the party by them bailed will fly, they may take him and bring him before any justice of the peace; and, upon their prayer, the justice may and ought to discharge such sureties, and commit the party to jail, except he shall find other sureties.

If a prisoner be bailed by insufficient persons, the justice of the peace, ex officio, may cause him to find better sureties, and may commit him till he shall do so. Dalt. Justice, 550.

As there is great responsibility upon the justice in these cases, it seems that he may, in order to ascertain to his satisfaction the ability of the sureties, examine them upon oath as to the value of their property. 2 Hale, 125. This seems to be customary in the higher courts, and, indeed, is every day's practice. And that which the higher courts do may be a good rule for others. Dalt. Justice, 550. 1 Chit. Crim. Law, 99.

It is said that the sureties should at least be two men, each of whom shall be of sufficient ability to answer the sum in which he is bound. 1. Chit. Crim. Law, 99. It appears, however, that a recognizance entered into by a prisoner and one surety would be binding. Breese's Rep., 257. This rule, however, seems to have been adopted for the benefit of the justice, and, therefore, though he may insist upon two sureties, yet he may take a recognizance with one surety only. 2. Saund., 61, c. But, when the justice accepts one surety only, there ought to be no doubt of the sufficiency of his property to answer the penalty of the recognizance.

The ability of the prisoner, and the nature of the crime, should always be taken into consideration in determining npon the sufficiency of the sureties, and the sum in which they are held to recognize. Not that security for a trifling sum should be taken because the prisoner is poor, but, if he is rich, a larger sum may reasonably be required than in other cases.

The recognizance of the prisoner with sureties, is an obligation or acknowledgment entered into before some court of record or magistrate duly authorized, of a former debt upon record with a condition to do some particular act; as to appear on the first day of the next circuit court, to keep the peace, or the like, upon the performance of which the recognizance shall be void. This being certified to, or taken by the officer of some court, is witnessed only by the record of that court, and not by the party's seal; so that it is not, in strict propriety, a deed, though the effects of it are greater than a common obligation. 2 Bl. Com., 341. 4 Burn's Justice, 34. In these recognizances, the principal is bound in double the sum of the sureties, and the usual number of sureties is two.

A recognizance has many of the attributes of a judgment, and the lands, tenements, and hereditaments of the cognizor, in his hands at the time of his acknowledgment thereof, or after, are bound by it, into whose hands soever they come. Jac. Law. Dic., tit. Recognizance. 2 Bl. Com., 341. It does not, however, strictly speaking, become a recognizance or debt of record until it is filed or recorded in the court in which it is returnable. 2 Saund., 68. 4 Wend. Rep., 387.

By the 5th scc. of " An act to regulate the apprehension of offenders, and for other purposes," it is enacted that "All recognizances that have any relation to criminal matters, shall be taken to the people of this state, shall be signed by the

person or persons entering into the same, be certified by the judge, justice of the peace, or other officer taking the same, and delivered to the clerk of the circuit court, on or before the day mentioned therein for the appearance of the witness or accused therein bound. Recognizances taken in courts of record need not be signed or certified as aforesaid." Gale's Stat., 239.

By the 3d sec. of the same act, "All recognizances taken in pursuance of this section shall require the accused to appear at, and on the first day of the next circuit court, or if the court be then sitting, on some day of the term, to be therein designated."

When the principal cannot join in a recognizance, it should be taken of the bail only. 1 Chit. Crim. Law, 104. Infants cannot legally bind themselves by bond or recognizance; 2 Hale, 126; and a married woman cannot be bound by recognizance, because it is not capable of being estreated. 1 Chit. Crim. Law, 100. If a prisoner is in jail, it seems that a recognizance may be taken from the bail only. 2 Hale, 126.

It is said to be a general rule, that the defendant and his bail cannot be called upon their recognizance, except on the day on which he is bound to appear; if he is called on any other day, notice must be given of the intention. 1 Chit. Crim. Law, 106. The usual practice, however, is not in accordance with this rule. And, when the recognizance is that the accused shall appear and answer, he is not at liberty to depart after once making his appearance in court; he must remain till duly discharged. The bail are the jailers of his own choosing, and must secure his appearance as effectually, and put him as much under the power of the court, as if he had been in the custody of the proper officer. 10 Wend. Rep., 433. 17 Wend. Rep., 252.

But, where a strict compliance with the condition of the recognizance has become impossible, the non-performance will be excused. It is said that, if a man be bound by a recognizance, or bound with a condition that he shall appear at the term in such a court, and, before the day, the cognizor or obligor dieth, the recognizance or obligation is saved. And the reason assigned is, that the bond or recognizance is a thing in action and executory, whereof no advantage can be taken until there be a default in the obligor, and, therefore, in all cases when the condition of the bond or recognizance is possible at the time of making the condition, and, before the same can be performed, the condition becomes impossible, by the act of God, or of the law, or of the obligee, then the obligation is saved. 8 Cowen's Rep., 279. 11 Mod. Rep., 200.

When the principal stood bound by his recognizance to appear in court on the first day of the term, and his surety, excusing his non-appearance by reason of sickness, moved that his recognizance might be discharged, the attorney general

having orders and, being in court, consenting thereto : but Holt, Ch. J., said, notwithstanding such consent, the principal not appearing in person, the court could not discharge the recognizance, but said they could respite it till the next term, which was done accordingly. 4 Burn's Justice, 85.

If the principal make default in not appearing according to the condition of his recognizance and his default is entered of record, his recognizance thereby becomes forfeited and liable to be estreated; 4 Burn's Justice, 84. 1 Chit. Crim. Law, 106. 4 Wend. Rep., 393; and, being estreated, the party and his sureties become absolute debtors to the people, and may be sued for the several sums in which they are respectively bound. 4 Bl. Com., 253.

But, if a recognizance be estreated because not punctually complied with, yet, if the party appear and take his trial the next court, or otherwise performs what he was bound to by the recognizance, as the case shall be, he may compound for a very small matter, because the effect, though not the exact form, of the recognizance is complied with. 10 Mod. Rep., 278. 1 Burn's Justice, 530.

At common law, it is said the judges of oyer and terminer are the proper judges whether recognizances ought to be estreated or spared; and that it is for the benefit of public justice that they should have such power, if, upon the circumstances of the case, they should see fit to exercise it. 4 Burn's Justice, 85. 10 Mod. Rep., 278, 152. Even after default entered for not complying with the condition of the recognizance, it seems the judges had a discretionary power to order the amount of the recognizance to be collected or not. A recognizance being a debt of record, an action of debt would lie upon it.

If the conusee did not take out execution within a year and a day after the payment assigned in the recognizance, he was obliged, at common law, to commence an action of debt upon it; for the law presumes the debt was paid. But, by the statute of 13 Ed. I., the conusee may sue out a scire facias to revive the recognizance, and put it in execution, if the conusor cannot stay it by pleading such matters as the law judges sufficient for that end. 2 Inst., 469. 2 Saund., 71, b.

It appears, by the common law, to be the usual practice, after the recognizance has been estreated, that process issue for the collection of the amount in which the party is bound. Dalt. Justice, 394. Jac. Law. Dic., tit. Recognizance. 1 Burn's Justice, 531.

By see. 186 of the Crim. Code, it is provided that, "In all cases of bail, for the appearance of any person or persons charged with any criminal offence, the security or securities of such person or persons may, at any time before judgment is rendered upon scire facias, to show cause why execution should not issue against such security or securities, seize and