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CHAPTER 179.

AN ACT RESPECTING RECOGNIZANCES.

ER Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows :-

1. Any surety for any person charged with any indictable offence may, upon affidavit showing the grounds therefor, with a certified copy of the recognizance, obtain from a judge of a superior court or from a judge of a county court having criminal jurisdiction, an order in writing under his hand, to render such person to the common gaol of the county where the offence is to be tried.-1 R. S. N. B., c. 157, s. 1.

2. The sureties, under such order, may arrest such person, and deliver him, with the order, to the gaoler named therein, who shall receive and imprison him in the said gaol, and shall be charged with the keeping of such person until he is discharged by due course of law.-1 R. S. N. B., c. 157, s. 2.

3. The person rendered may apply to a judge of a superior court, or in cases in which a judge of a county court may admit to bail, to a judge of a county court, to be again admitted to bail, who may on examination allow or refuse the same, and make such order as to the number of the sureties and the amount of recognizance as he deems meet, which order shall be dealt with in the same manner as the first order for bail, and so on, as often as the case requires.-1 R. S. N. B., c. 157, s. 3.

4. On due proof of such render, and certificate of the sheriff, proved by the affidavit of a subscribing witness, that such person has been so rendered, a judge of the superior or county court, as the case may be, shall order an entry of such render to be made on the recognizance by the officer in charge thereof, which shall vacate the recognizance, and may be pleaded or alleged in discharge thereof.-1 R. S. N. B., c. 157, s. 4.

5. The sureties may bring the person charged as aforesaid into the court at which he is bound to appear, during the sitting thereof, and then, by leave of the court, render him in discharge of such recognizance at any time before trial, and such person shall be committed to

gaol, there to remain until discharged by due course of law; but such court may admit such person to bail for his appearance at any time it deems meet.-1 R. S. N. B., c. 157, s. 5.

6. The arraignment or conviction of any person charged and bound as aforesaid shall not discharge the recognizance, but the same shall be effectual for his appearance for trial or sentence, as the case may be; and the court may commit such person to gaol upon his arraign ment or trial, or may require new or additional sureties for his appearance for trial or sentence, as the case may be, notwithstanding such recognizance; and such commitment shall be a discharge of the sureties.-1 R, S. N. B., c. 157, s. 6.

7. Nothing in the foregoing provisions shall limit or restrict any right which a surety now has of taking and rendering to custody any person charged with any such offence, and for whom he is such surety,

8. Unless otherwise provided, all fines, issues, amercements and forfeited recognizances, the disposal of which is within the legislative authority of the Parliament of Canada, set, imposed, lost or forfeited before any court of criminal jurisdiction, shall, within twenty-one days after the adjournment of such court be fairly entered and extracted of a roll by the clerk of the court, or in case of his death or absence by any other person, under the direction of the judge who presided at such court, which roll shall be made in duplicate and signed by the clerk of the court, or in case of his death or absence, by such judge: 2. If such court is a superior court of criminal jurisdiction, one of such rolls shall be filed with the clerk, prothonotary, registrar or other proper officer,—

(a.) In the Province of Ontario, of a division of the high court of justice,

(b.) In the Provinces of Nova Scotia, New Brunswick and British Columbia, of the supreme court of the Province,

(c.) In the Province of Prince Edward Island, of the supreme court of judicature of that Province,

(d.) In the Province of Manitoba, of the Court of Queen's Bench of that Province and,

(e.) In the North-West Territories, of the supreme court of the said Territories,

On or before the first day of the term next succeeding the court by or before which such fines or forfeitures were imposed or forfeited:

3. If such court is a court of General Sessions of the Peace, or a county court, one of such rolls shall remain deposited in the office of the clerk of such court.-C. S. U. C., c. 117, ss. 1 and 2, part, 3 and 4, part. 49 V., c. 25, s. 14. 3 Geo. 4, c. 46, s. 2, Imp.

9. The other of such rolls shall, as soon as the same is prepared, be sent by the clerk of the court making the same, or in case of his death or absence, by such judge as aforesaid with a writ of fieri facias and capias, according to the form in the schedule to this Act, to the sheriff of the county in and for which such court was holden and such writ shall be authority to the sheriff for proceeding to the immediate levying and recovering of such fines, issues, amercements and forfeited recognizances, on the goods and chattels, lands and tenements of the several persons named therein, or for taking into custody the bodies of such persons respectively, in case sufficient goods and chattels, lands or tenements cannot be found, whereof the sums required can be made; and every person so taken shall be lodged in the common gaol of the county, until satisfaction is made, or until the court into which such writ is returnable, upon cause shown by the party, as hereinafter mentioned, makes an order in the case, and until such order has been fully complied with.-C. S. U. C., c. 117, ss. 2, part, 4 part, and 5. 3 Geo. 4, c. 46, s. 2, Imp.

10. If any person bound by recognizance for his appearance (or for whose appearance any other person has become so bound) to prosecute or give evidence in any case of felony or misdemeanor, or to answer for any common assault, or to articles of the peace, makes default, the officer of the court by whom the estreats are made out shall prepare a list in writing, specifying the name of every person so making default, and the nature of the offence in respect of which such person, or his surety, was so bound, together with the residence, trade, profession or calling of every such person and surety, and shall, in such list, distinguish the principals from the sureties, and shall state the cause, if known, why each such person did not appear, and whether, by reason of the non-appearance of such person, the ends of justice have been defeated or delayed.-C. S. C., c. 99, s. 120. 7 Geo. 4, c. 64, s. 31, Imp.

11. Every such officer shall, before any such recognizance is estreated, lay such list before the judge or one of the judges who presided at the court, or if such court was not presided over by a judge, before two justices of the peace who attended at such court, and such judge or justice shall examine such list, and make such order touching the estreating or putting in process any such recognizance as appears just, subject, in the Province of Quebec, to the provisions hereinafter contained; and no officer of any such court shall estreat or put in process any such recognizance without the written order of the judge

or justices of the peace before whom respectively such list has been laid.-C. S. C., c. 99, s. 121. 7 Geo. 4, c. 64, s. 31, Imp.

12. Except in the cases of persons bound by recognizance for their appearance, or for whose appearance any other person has become bound to prosecute or give evidence in any case of felony or misdemea nor, or to answer for any common assault, or to articles of the peace, in every case of default whereby a recognizance becomes forfeited, if the cause of absence is made known to the court in which the person was bound to appear, the court, on consideration of such cause, and considering also, whether, by the non-appearance of such person the ends of justice have been defeated or delayed, may forbear to order the recognizance to be estreated; and, with respect to all recognizances estreated, if it appears to the satisfaction of the judge who presided at such court that the absence of any person for whose appearance any recognizance was entered into, was owing to circumstances which rendered such absence justifiable, such judge may make an order directing that the sum forfeited upon such estreated recognizance shall not be levied.-C. S. U. C., c. 117, s. 6, part.

13. The clerk of the court shall, for such purpose, before sending to the sheriff any roll, with a writ of fieri facias and capias, as directed by this act, submit the same to the judge who presided at the court, and such judge may make a minute on the said roll and writ of any such forfeited recognizances and fines as he thinks fit to direct not to be levied; and the sheriff shall observe the direction in such minute written upon such roll and writ, or indorsed thereon, and shall forbear accordingly to levy any such forfeited recognizance or fine.—C. S. U. C., c. 117, s. 7.

14. If upon any writ issued under this act, the sheriff takes lands or tenements in execution, he shall advertise the same in like manner as he is required to do before the sale of lands in execution in other cases; and no sale shall take place in less than twelve months from the time the writ came to the hands of the sheriff.—C. S. U. C., c. 117, s. 8.

15. The clerk of the court shall, at the foot of each roll made out as herein directed, make and take an affidavit in the following form, that is to say :

"I. A. B. (describing his office), make oath that this roll is truly "and carefully made up and examined, and that all fines, issues, 66 amercements, recognizances and forfeitures which were set, lost "imposed or forfeited, at or by the court therein mentioned, and which,

"in right and due course of law, ought to be levied and paid, are, to "the best of my knowledge and understanding, inserted in the said "roll; and that in the said roll are also contained and expressed all "such fines as have been paid to or received by me, either in court or "otherwise, without any wilful discharge, omission, misnomer or defect "whatsoever So help me God;"

Which oath any justice of the peace for the county is hereby authorized to administer.-C. S. U. C., c. 117, s. 9. 3 Geo. 4, c. 46, s. 3, Imp.

16. If any person on whose goods and chattels a sheriff, bailiff or other officer is authorized to levy any such forfeited recognizance, gives security to the said sheriff or other officer for his appearance at the return day mentioned in the writ, in the court into which such writ is returnable, then and there to abide the decision of such court and also to pay such forfeited recognizance, or sum of money to be paid in lieu or satisfaction thereof, together with all such expenses as are adjudged and ordered by the court, such sheriff or officer shall discharge such person out of custody; and if such person does not appear in pursuance of his untertaking, the court may forthwith issue a writ of fieri facias and capias against the surety or sureties of the person so bound as aforesaid.-C. S. U. C., c. 117, s. 10; 3 Geo. 4, c. 46, s. 5, Imp.

17. The court into which any writ of fieri facias and capias, issued under this act, is returnable, may inquire into the circumstances of the case, and may, in its discretion, order the discharge of the whole of the forfeited recognizance, or sum of money paid or to be paid in lieu or satisfaction thereof, and make such order thereon as to such court appears just; and such order shall accordingly be a discharge to the sheriff, or to the party, according to the circumstances of the case. —C. S. U. C., c. 117, s. 11; 3 Geo. 4, c. 46, 6, Imp.

18. The sheriff, to whom any writ is directed under this act, shall return the same on the day on which the same is made returnable and shall state, on the back of the roll attached to such writ, what has been done in the execution thereof; and such return shall be filed in the court into which such return is made.-C. S. U. C., c. 117, s. 12; 3 Geo. 4, c. 46, s. 8, Imp.

19. A copy of such roll and return, certified by the clerk of the court into which such return is made, shall be forthwith transmitted to the Minister of Finance and Receiver General, with a minute thereon

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