cluded bail in the mean time, and, therefore, was unlawful. The Court said, it is the constant course to bring before a magistrate in the first instance, and the person who brings him cannot take bail till he comes before a magistrate, and that is in his favour, because he may excuse himself of the charge or enquiry. My Brother Vaughan says, that they did not venture to argue, that a magistrate could commit. They said, this is not a commitment to prison, it is an arrest for examination, for which bail cannot be taken; but it was quite unnecessary to say, that magistrates could commit afterwards. If they could arrest before examination, if the examination was not favourable to the Defendant, he would then be committed unless he found bail.

These are all the cases, except that of The King v. Wilkes, where no such point is made by Mr. Wilkes himself or the counsel who assisted him, as, that, if he had been a private individual, he would not have been amenable to the commitment. He put it on the ground, that he was not charged on oath, that the libel was not set out at length, and that he was entitled to the privilege of parliament: the Court over-ruled the two first objections, and abstained from saying that a secretary of state has more authority than a justice of the peace. With respect to the second point, what does his Lordship say? It is impossible that he could entertain any doubt that a libel was a legitimate ground for holding a common person to bail: he says the libel need not be set out at length; why? As to the offence of a libel, he says, "it is such a misdemeanor as we should require good bail for, and such as the party may be able to procure." So that when the objection was, that the libel ought to have been set out to enable the Court to judge of the quality of the bail to be required, his Lordship says, we can well judge of that without the libel being set out; for

1820.

BUTT

บ.

CONANT.

we know it is a high misdemeanor, and such a misde meanor as would make it our duty to require good bail, having regard to the quality of the offender. Surely this is an opinion, on his part, that in a case of libel a man may be held to bail, and bail according to his quality. But his opinion, and that of the rest of the Court, was, that the Defendant was entitled to his discharge by reason of his privilege of parliament; and, I think, there must be some error in the phrase in Wilson's report, where his Lordship is supposed to have said, “It is absurd to require surety of the peace, or bail, in the case of a libeller," having before said a libel was a misdemeanor, and that good bail ought to be taken.' I entertain no doubt, that the word has crept in by mistake on the part of Mr. Serjeant Wilson: it is not found in the report in the 11th volume of Hargrave's State Trials, 304, 305. His Lordship is there made to say, Perhaps it implies an absurdity to demand sureties of the peace from a libeller." The Defendant was discharged on the ground of his privilege of parliament, although the Court, there, and in all other cases, seem to have entertained no doubt that a Defendant charged with libel might be held to bail.

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Having thus gone through, as shortly as I was able to do so, the usage, the authorities of the text writers, and the cases, they seem all to agree in one and the same point, namely, that the course adopted by the Defendant in this case is agreeable to the ancient course of the common law; and I am, therefore, clearly of opinion, that the Defendant is entitled to the judgment of the Court.

Judgment for the Defendant accordingly.

END OF HILARY TERM.

ATTACHMENT.

See PRACTICE, 3.

ATTORNEY.

Where an attorney has been struck off the rolls of the K. B. on a report of the Master, he will, on motion, be struck off the rolls of this court, unless sufficient cause be shown to the contrary. In Re R. P. Smith. Page 522

AUTREFOIS ACQUIT. Plea, that prisoner had been acquitted on an indictment for murdering a 1. child, by administering a certain deadly poison, to wit, oil of vitriol, and by forcing the child to take, drink, and swallow down a large quantity of the said oil of vitriol, knowing it to be a deadly poison, whereby the child became sick and distempered in his body, and by that sickness languished and died: Held, (by eleven judges, Wood B. absent,) a good bar to an indictment (1st count), for murdering the same child by administering a large quantity of oil of vitriol, and forcing

the child to take into his mouth and throat a large quantity of the said oil of vitriol, knowing that the said oil of vitriol would occasion the death of the child, whereby he became disordered in his mouth and throat, and by the disorder, choking, suffocating, and strangling, occasioned thereby, languished and died; (2d count,) for murdering the child by administering a certain acid called oil of vitriol, and forcing the child to take a large quantity of the said acid into his mouth and throat,

2.

AVOWRY.

See PLEADING, 2.

AWARD.

Agreement for a lease for 63 years from 1st of May 1801; the lessee to be allowed three years from that time for winning the colliery without payment of any rent. An arbitrator, being authorised to give such direction for a lease according to the agreement as he should think fit, directed a lease for 63 years from the 1st of May, 1804: Held, that he had exceeded his authority, and that the award was bad. Bonner v. Liddell.

80

A., B.,

A., B., C., D., E., and F., partners in trade, submitted to arbitration differences which had arisen between them in their trade. and C., gave a joint and several bond to D., E., and F., conditioned for the performance of an award, and D.,E., and F., gave a similar bond to A., B., and C. The arbitrator awarded, among other things, that B. should pay a sum of money to A. A. having sued B. on the award, held (by three judges against Richardson J.) that A. might recover the sum awarded to him. Winter v. White.

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