BACKING WARRANT. A justice of the peace has no authority beyond his territorial jurisdiction. He may, however, issue a warrant for the apprehension of a party who has escaped or is residing out of his jurisdiction, but such warrant cannot be legally executed unless such execution of it be sanctioned by some justice of the peace residing in the locality where the accused party is residing. This is usually done by the constable having charge of the warrant calling upon such justice for leave to execute the same within his jurisdiction, who, on proof upon oath of the signature to the original warrant, is authorised by law to endorse permission or leave to execute such warrant within his jurisdiction. This is called "backing the warrant;" with respect to which the "Summary Conviction Act" 16 V. c. 178 provides as follows: § 3. And if the person against whom any such warrant has been issued be not found within the jurisdiction of the justice or justices by whom it was issued, or, if he shall escape, go into, reside or be or be supposed or suspected to be in any place within this province, whether in Upper or Lower Canada, out of the jurisdiction of the justice or justices issuing the warrant, any justice of the peace within whose jurisdiction such person shall be or be suspected as aforesaid, upon proof alone upon oath (a) of the handwriting of the justice or justices issuing the warrant, may make an endorsment upon it, signed with his name, authorising the execution of the warrant within his jurisdiction; and such endorsement shall be a sufficient authority to the person bringing the warrant, and to all other persons to whom it was originally directed, and to all constables or other peace officers of the territorial division, where the endorsement is made to execute the same in any place within the jurisdiction of the justice of the peace endorsing the same, and to carry the offender, when apprehended, before the justice or justices who first issued the warrant, or some other justice having the same jurisdiction. By the 16 V., c. 179 §7, (relating to indictable offences) a similiar provision is made for backing warrants against a party residing out of the jurisdiction, and conveying him when apprehended into the jurisdiction from which the warrant issued, but with this special provision in addition, viz. : provided always, that if the prosecutor or any of the witnesses upon the part of the prosecution, shall then be in the territorial (a) The constable having charge of the warrant, should either see it signed, or be well acquainted with the handwriting of the justice to enable him to make the requisite oath. division, where such person shall have been so apprehended, the constable or other person or persons who shall have so apprehended such person, may, if so directed by the justice backing such warrant, take and convey him before the justice who shall have so backed the said warrant, or before some other justice or justices for the same territorial division: and the said justice or justices may thereupon take the examination of such prosecutor or witnesses, and proceed in every respect in manner hereinafter directed with respect to persons charged before a justice or justices of the peace for an offence alleged to have been committed in another territorial division than that in which such persons have been apprehended. Form of Endorsement in backing a warrant. PROVINCE OF CANADA: County (or united counties, or as the case may be.) of Whereas, proof upon oath hath this day been made before me, one of her Majesty's justices of the peace in and for the said county (or united counties, or as the case may be) of that the name of J. S. to the within warrant subscribed is of the proper handwriting of the justice of the peace within-mentioned. I do, therefore, hereby authorise W. T., who bringeth to me this warrant, and all other persons to whom this warrant was originally directed, or by whom it may be lawfully executed, and also all constables and other peace officers of the said county (or united counties, or as the case may be) of to execute the same within the said last mentioned county (or united counties, or as the case may be). Given under my hand, this day of of our Lord , at in the year in the (county, &c.) aforesaid, J. L See also post titles "Indictable Offences," "Summary Conviction.". BAIL. Bail (from the French word bailler, "to deliver" (signifies the delivery of a man out of custody, upon the undertaking of one or more persons for him that he shall appear at a day limited, to answer and be justified by the law. Hales, P. C. 96. By the declaration of rights, 1 W. session 2, c. 2, excessive bail ought not to be required. To refuse bail where the party ought to be bailed, (the party offering the same,) is a misdemeanor, punishable not only by the suit of the party, but also by indictment.-2 Haw. 90 H. P. 97. And to admit bail where it ought not to be admitted, is punishable by the judges of assize by fine, or punishable as a negligent escape at common law-H. P. 97; and so if a justice take insufficient bail.-Ib. A justice of the peace cannot take bail for murder.-2 Inst. 186. And if a person be dangerously wounded, the justice ought to be very cautious how he takes bail, till the year and day be passed, for if the party die, and the offender appear not, the justice is in danger of being severely fined.-1 Haw. 138. The court of King's Bench, however, may admit a person to bail who has been committed for murder, if they think the circumstances of the case will justify their doing so. Lord Mohun's case, 1 Salk. 104; R. v. Magrath, Str. 1242. If the bail taken be insufficient, the justice may require better sureties, and commit the party on refusal.-2 Haw. 89. Bail may be taken in all cases of misdemeanor, and by one justice. It may also be taken in cases of felony, where the evidence adduced shall, in the opinion of the justices before whom the accused party is brought, be sufficient to put him on trial, but shall not furnish such a strong presumption of guilt as to warrant his committal for trial. "But if the evidence given, be such as to raise a strong presumption of guilt, then such justice or justices, shall by his or their warrant commit the party to the common goal for the territorial division to which he may by law be committed.-16 V., c. 179 § 15, 17 (a). One justice alone cannot take bail for felony. The above statute requires that two justices be present on such occasion. The same statute also expressly prohibits bail being taken in cases of treason or murder; except by order of her Majesty's Court of Queens Bench, or Common Pleas, or one of the judges thereof in vacation. See further on the subject under the titles "Indictable Offences," "Coroner." Acknowledging Bail in another man's name. By statute 21 J, c. 26, if any person shall acknowledge, or procure to be acknowledged, any bail in the name of any other, not privy to the same, he shall be guilty of felony without benefit of clergy. Bail taken before a judge is not within this statute till it is filed of record.-1 H. H. 696. But it is within the following statute of 4 Wm., c. 4, which enacts, "that any person who shall personate another before those who have authority to bail, so as to make him liable to the payment of any sum of money in that suit or action, shall be guilty of felony.". If bail cannot otherwise be obtained, the law hath also provided a remedy by the habeas corpus act.-31 G. II. See also post title, "Habeas Corpus." (a) The provisions of the former statute 4 & 5 V., c. 24, respecting bail before justices seem to be superseded by this act. BANISHMENT. *By 40 G. III., c. 1, § 5, banishment is substituted for transportation; and by § 6 of the same statute, being afterwards found at large within the province was made a capital offence. *By 3 W. IV., c. 3, reducing and defining what shall be capital offences, returning from banishment is not included. *By 7 W. IV., c. 7, § 1, transportation may be substituted for banishment; § 2, and the provision of the * 40 G. III., c. 1, respecting persons returning to the province before the expiration of the sentence, shall extend to any person returning from transportation under this act. By 4 & 5 V., c. 24, § 25, returning from transportation or banishment before the expiration of the term, is made felony, and the offender liable to transportation for life. By 6 V., c. 5, § 4, it is enacted "that for any offence for which by any of the acts cited, (including 4, 5 V., c. 24,) or by any other act or law the offender might, if this act had not been passed, have been punished by transportation beyond the seas, such offender may, if convicted after the passing of this act, be punished by imprisonment in the provincial penitentiary for any term for which he might have been transported beyond seas if this act had not been passed, or by imprisonment for life, if without this act he might have been punished by transportation for life. BANKS-BANKING. By 13 & 14 V., c. 21, which repeals the *7 W. IV., c. 13, § 2, it is enacted, that it shall not be lawful for any person, or association of persons, body corporate or politic, or party whatsoever, except only banks, now incorporated by royal charter or by act of the legislature, and thereunto expressly authorised, or such as shall be authorised under this act, to make, issue, sign, &c., any note, bon, check, or promise in writing for the payment of money, in the nature of a bank note, or bank bill, or intended to pass as money. § 3. No bank notes shall be issued for less than five shillings, or made payable otherwise than on demand, in current coin of this province, and at some certain place within this province. § 4. A penalty of £100 shall be incurred by any party issuing, circulating, or passing, or attempting to circulate or pass, any unlawful bank note in contravention of this act. § 5. Foreign banks prohibited from opening or keeping any office or place of discount or deposit, or for the issue, circulation, or redemption of its bank notes within this province, under the penalty of £100. § 6. All such unlawful notes shall be void: as well as securities given for securing any loan or advance made in such notes, as also any receipt or discharge for money paid in such notes. § 7. The business of banking shall comprise the making and issuing of bank notes, the dealing in gold and silver bullion, and exchange, discounting of promissory notes, bills, and negotiable securities, and such other trade as belongs legitimately to the business of banking. But any company or party lawfully exercising the business of banking under this act shall have power to hold property bona fide mortgaged or pledged as security for debts previously contracted, and sold under any process at law or in equity, and bought at such sale by such company or party, with power to re-sell. § 8. Any individual or co-partnership may carry on the business of banking in this province at some one place, being a city, town or village. § 9. Joint-stock banks to be composed of not less than five persons, and the whole capital not less than £25,000; shares not less than £10 each; articles of co-partnership to be filed in the office of the clerk of the county court. § 10. Shareholders to be liable for twice the amount of their shares, and no more. § 13 (a). Banks not to commence business until they have deposited with the receiver-general provincial debentures or securities to the amount of £25,000, to be held in pledge for redemption of the bank notes of the bank. § 14 (b). Upon such deposit being made the inspector-general is authorised to deliver to the bank bank notes for not less than 5s. each, numbered, registered, and counter-signed by him, not exceeding the amount deposited, for circulation, and so long as the bank shall pay such notes in specie, on demand, they shall be receivable in payment of duties. § 15. Banks may make further deposits not less than £5000 at one time, and increase their circulation accordingly. § 17. If any such bank note shall not be paid in specie on demand at the bank, the same may be protested and forwarded to the inspectorgeneral, who shall then by letter require the bank to pay the same, with costs of protest and postage and interest, within ten days, or the bank shall be closed (unless there be a legal defence for the non-payment of such note), and notice thereof given in the Gazette by the inspector-general, stating that he will redeem the notes to the extent of the funds deposited; provision is then made for appointing a receiver for settling the affairs of the bank, who is authorised to take possession of the bank property, books and papers; and any banking This section is amended by 19 V., c. 3. |