Magistrate may have associates. R. S. 135, § 23. Commitments, 1846, 198. Orders there- R. S. 135, § 26. Prisoners, how ed after or any infirmity, or of his being absent from the state so that he cannot be compelled to attend by subpoena or attachment, the deposition may be read in evidence on the trial by either party, subject to all legal objections. SECT. 32. A magistrate to whom complaint is made, or before whom a prisoner is brought, may associate with himself one or more of the magistrates of the same county, and they may together execute the powers and duties given to magistrates by this chapter; but no fees shall be taxed for such associates. SECT. 33. When a person is committed to prison or under recog nizance to answer to a charge of assault and battery or other misdemeanor for which the party injured may have a remedy by civil action, (except where the offence was committed by or upon a sheriff or other officer of justice, or riotously or with intent to commit a felony, or is punishable by imprisonment in the state prison,) if the party injured appears before the magistrate who made the commitment or took the recognizance, and acknowledges in writing that he has received satisfaction for the injury, the magistrate may in his discretion, on the payment of all the costs which have accrued, by an order under his hand discharge the recognizance or supersede the commitment, and may also discharge all recognizances and supersede the commitment of all witnesses in the case. SECT. 34. Every such order discharging the recognizance of the party or witnesses, shall be filed in the office of the clerk before the sitting of the court at which they are bound to appear; and every order superseding the commitment of the party charged, or of any witness, shall be delivered to the keeper of the jail in which he is confined, who shall forthwith discharge him; and every such order, if so filed and delivered, and not otherwise, shall forever bar all remedy by civil action for such injury. SECT. 35. When a person under indictment for a bailable offence is bailed if arrest-arrested after the adjournment of the court in which the same is triable, any justice of the court, or any standing or special commissioner appointed for such purpose by the court, may fix the amount of and receive bail in the same manner as the court might do. how bailed R. S. 135, § 22. * 8 Greenl. 179. Φυτικά 37 not to be bailed without notice, &c. 1851, 92, § 2. SECT. 36. A justice of the supreme judicial court, superior court, or a standing or special commissioner appointed by either of said courts, or a justice of a police court or two justices of the peace and of the quorum in any county, on application of a prisoner committed for a bailable offence, whether on a warrant or without one, may inquire into the case and admit such prisoner to bail; and such officers and justices of the peace may respectively admit to bail any person committed for not finding sufficient sureties to recognize for him. SECT. 37. If the person is committed without an order fixing the amount of the recognizance, he shall not be admitted to bail under the R. S. 135, § 22. preceding section until reasonable notice of his application to the officer by whom he was committed; and if committed with such order, he shall not be admitted to bail by a commissioner, police court, or justices of the peace, for a less amount than is required by the order. 1855, 265, § 1. when bailed on Lord's day. 1855, 265, § 2. Condition of SECT. 38. Persons committed to jail on the Lord's day, or on the evening or afternoon preceding, may be admitted to bail on that day, when in the opinion of the magistrate an application for that purpose appears to be proper. SECT. 39. When a court or magistrate takes a recognizance of a person, either with or without surety, binding him to appear at a court to be held by any police justice, or trial justice, or at a term of any court, to answer to a charge against him, or to prosecute an appeal or bill of exceptions, the condition shall be so framed as to bind him personally to appear at the time or term so expressed, and at any subsequent time or and examina term to which the case may be continued, (if not previously surrendered SECT. 41. Bail in criminal cases, at any time before the commencement of an action of scire facias on the recognizance, may exonerate themselves by surrendering their principal to the jailer in the county where the offence was committed or is punishable, and delivering to him a certified copy of the recognizance; and the principal shall be received and detained by the jailer, and may be again bailed, in the same manner as if committed for not finding sureties to recognize for him. ions to be returned to court. R. S. 135, § 24. Bail may exon erate them elves, &c. 1859, 131. same subject. SECT. 42. Bail may also exonerate themselves at any time before final judgment in an action of scire facias on the recognizance by sur- 1859, 131. rendering their principal into court; but if such action has been commenced the court may require the bail to pay the whole or any portion of the costs or penalty. 2/1862 169 Sd. 59.1563 14169 1862 59 1863 new huussia same subject. SECT. 43. If by the act of God, or the government of the United States, or any state, or by sentence of law, bail are unable without their 1859, 131. fault to surrender their principal, they shall, on motion before final judg ment on the scire facias, be exonerated and discharged by the court, with or without costs, as the court deems equitable. &c. SECT. 44. Bail may take and surrender their principal into court or may surrenin the manner provided in section forty-one, after final judgment on the der principal, scire facias, and before or after satisfaction thereof, and may thereupon 1859, 131. as of right have a review and rehearing as provided in section fifty to fifty-three inclusive. have benefit, chỉ gien 591863 new mansion SECT. 45. When the principal has been once surrendered and bailed New bail not to anew, his new bail shall not have the benefit of the provisions of the four preceding sections, nor of section fifty to fifty-three inclusive. &c. 1859, 131. zances. SECT. 46. When a person under recognizance to appear and answer, Defaults on for feited recognior to prosecute an appeal or bill of exceptions, in a criminal prosecution, fails to appear for that purpose according to the condition of his recog- R. S. 135, § 27. nizance, and when a person under recognizance to testify in a criminal 1815, 166, § 3. prosecution fails to perform the condition of his recognizance, his default may be recorded; whereupon the obligation of such person and his sureties shall be deemed forfeited, and process shall be issued against them or such of them as the prosecuting officer directs; but in such suit no costs shall be taxed for travel. cognizances, SECT. 47. A surety in such recognizance may by leave of the court, Surety may pay after default and either before or after process has been issued against amount of rehim, pay to the county treasurer or clerk of the court the amount for &c. R. S. 135, § 28. which he was bound as surety, with such costs as the court shall direct, and be thereupon forever discharged. cognizances. 1844, 44, § 1. SECT. 48. When an action is brought on behalf of the common- Action and wealth against a principal or surety in a recognizance in a criminal Judgment on reprosecution entered into either by a party or a witness, and the penalty R. S. 135, § 29. is adjudged forfeited, the court may render judgment for the whole of 14 Mass. 65. such penalty with interest, or on application of the defendant, for any part thereof according to the circumstances of the case and the situation of the party, and upon such terms and conditions as the court deems just and reasonable." Action on re cognizance not to be defeated, irregularities. 16 Mass. 447. 7 Gray, 316. Review of judgments on forfeited recog nizances. 1852, 126, § 1. petition for. 1852, 126, § 2. Proceedings when former judgment is diminished. 1852, 126, § 3. when not diminished, &c. 1852, 126, § 4. Offences not bailable. 1852, 259, § 4. SECT. 49. Such action shall not be barred or defeated, nor shall judgment be arrested, by reason of neglect or omission to note or record the default of any principal or surety at the term when it happens, nor by reason of a defect in the form of the recognizance, if it sufficiently appears from the tenor thereof, at what court the party or witness was bound to appear, and that the court or magistrate before whom it was taken was authorized by law to require and take such recognizance. SECT. 50. A court that has rendered judgment on a recognizance the penalty of which is forfeited to the commonwealth, may on the pe tition of any person interested grant a review and a rehearing of the case, upon the surrender or recaption of the prisoner who was enlarged, or for any sufficient cause which has occurred or been ascertained by the person interested after the rendition of such judgment, or at such time as not to have afforded opportunity for presenting the same in evidence. SECT. 51. The petition, stating the grounds relied upon, shall be filed in court, and notice thereof with a copy given to or served on the attor ney for the commonwealth for the county where the court is to sit, fourteen days at least before the term at which such hearing may be had, unless the attorney waives such notice or service. SECT. 52. If it appears to the court that any part of such preceding judgment has been actually paid to or for the commonwealth upon the recognizance or judgment, and upon such review the court orders the judgment to be reversed or given for a less sum than has been so actually paid, the court may decree a sum equal to the difference between the amount actually paid and the amount so ordered, to be repaid to the party who paid the same or his legal representatives; and the treas urer or other officer of the commonwealth who received or then has the same, shall, on presentation of proper evidence of authority therefor, repay the same accordingly. SECT. 53. If upon such petition the review is not granted, or the original judgment is not altered, the court may award reasonable costs for the commonwealth against the petitioner. SECT. 54. The offences of treason, rape, and arson shall not be bailable. SECTION 29. Prisoner refusing to plead. Need not be 30. When persons in prison under an indict- SECTION 32. Commission to examine witnesses, how 33. Such commissions, how executed, and depo- 34. Civil remedies not barred by proceedings in returned, and 1840, 74. SECTION 1. The clerk of the superior court for each county, not less Grand jurors, than seven nor more than thirty days before the commencement of the when and how first term of the court in each year, shall issue writs of venire facias, term of service. in each county, for twenty-three grand jurors to be returned to that RS. 136, § 1. court, who shall be held to serve at each term thereof throughout the See 1860, Ch. 143. year, and until another grand jury is empanelled in their stead: except that in the counties where terms of the court are established for the transaction of criminal business, grand jurors shall be required to attend only at such terms. SECT. 2. The clerk of the superior court for criminal business, not less than seven nor more than fourteen days before each term commencing on the first Mondays of January and July, shall issue writs of venire facias for twenty-three grand jurors to serve in said court, twentytwo of whom shall be drawn and returned from the city of Boston, and one from Chelsea, North Chelsea, or Winthrop, who shall be held to serve for each term thereof for six months and until another grand jury is empanelled in their stead. in Suffolk. R. S. 86, § 6. 1844, 44, § 3. 1846, 127. 1852, 53. See 1860, Ch. 143. rors, and who See Ch. 132. SECT. 3. Grand jurors shall be drawn, summoned, and returned, in Same subject. the same manner as jurors for trials; and when drawn at the same time Who grand juwith jurors for trials, the persons whose names are first drawn, to the jurors for trials. number required, shall be returned as grand jurors, and those afterwards R. S. 136, § 3. drawn shall be jurors for trials. SECT. 4. In case of deficiency of grand jurors in any court, writs of Grand jurors, venire facias may be issued to the constables of such cities or towns as deficiency in, the court may direct, to return forthwith such further number of grand jurors as may be required. SECT. 5. The clerk of the court shall prepare an alphabetical list of the names of all persons returned as grand jurors, and when they are to be empanelled, the two persons first named thereon shall be first called, and the following oath shall be administered to them: do You, as grand jurors of this inquest for the body of this county of solemnly swear, that you will diligently inquire, and true presentment make, of all such matters and things as shall be given you in charge; the commonwealth's counsel, your fellows', and your own, you shall keep secret; you shall present no man for envy, hatred, or malice, neither shall you leave any man unpresented for love, fear, favor, affection, or hope of reward; but you shall present things truly, as they come to your knowledge, according to the best of your understanding; so help you, God. The other jurors shall then be called in such divisions as the court may deem proper, and the following oath shall be administered to them: The same oath which your fellows have taken on their part, you, and each of you, on your behalf, shall well and truly observe and keep; so help you, God. SECT. 6. When a person returned as grand juror is conscientiously scrupulous of taking the oath before prescribed, he shall be allowed to make affirmation, substituting the word "affirm" instead of the word "swear," and also the words, "this you do under the pains and penalties of perjury," instead of the words, "so help you, God.” how supplied. R. S. 136, § 4. how empanelR. S. 136, 5. led and sworn. form of oath. when allowed to affirm. R. S. 136, § 6. SECT. 7. After the grand jurors have been empanelled and received Foreman. their charge from the court, they shall retire with the officer appointed R. S. 136, § 7. to attend them, and before proceeding to discharge their duties, elect by. ballot one of their number to be foreman, and give notice thereof to the court, and the clerk shall record the same. SECT. 8. The foreman elected at the first term shall be foreman for duty and indictement is corporations the 164. 18 by 6223 1962 of. Foreman pro tempore. term of service the whole period they are required to serve, but in his absence another foreman shall be elected in the same manner, who shall perform the duties during such absence, and in case of the death of the foreman, for the residue of their term of service. R. S. 136, § 8. Who may es before the grand jury. SECT. 9. The foreman of the grand jury, or the prosecuting officer swear witness- before them, may administer oaths and affirmations in the manner prescribed by law, to witnesses who appear to testify before the jury, and the foreman shall under his hand return to the court a list of all witnesses sworn before the grand jury during the term, which shall be filed of record by the clerk. nesses. R. S. 136, § 9. 4 Gray, 5. Grand jury may R. S. 136, § 10. may be resummoned at same term. R. S. 136, § 11. Grand jurors, &c., not to dis- close fact of in R. S. 136, § 12. not to testify how members voted, &c. Prisoner not in SECT. 10. The grand jury may appoint one of their number to be clerk, to preserve minutes of the proceedings before them, which minutes when the jury so direct shall be delivered to the attorney-general or district-attorney. SECT. 11. When the grand jury are dismissed before the court is adjourned without day, they may be summoned to attend again in the same term, at such time as the court directs for the despatch of any business that may come before them. SECT. 12. No grand juror or officer of the court shall disclose the fact that an indictment for felony has been found against any person not in custody or under recognizance, otherwise than by issuing or executing process on the indictment. SECT. 13. No grand juror shall be allowed to state or testify in any court, in what manner he or any other member of the jury voted on any R. S. 136, § 13. question before them, or what opinion was expressed by any juror in relation to such question; and in charging the grand jury, the court shall remind them of the provisions of this and the preceding sections. SECT. 14. Any person held in prison on a charge of having committed a crime, shall be discharged if he is not indicted before the end of the second term of the court at which he is held to answer, unless it appears to the satisfaction of the court that the witnesses on the part of the government have been enticed or kept away, or are detained and prevented from attending the court by sickness or some inevitable accident, and except in the case provided for in the following section. dicted, when to be discharged. when discharged as in to hospital. SECT. 15. When a person held in prison on a charge of having comSane, to be sent mitted an indictable offence is not indicted by the grand jury by reason of insanity, they shall certify the fact to the court, and thereupon, if his discharge or going at large is deemed manifestly dangerous to the peace and safety of the community, the court may order him to be committed to one of the state lunatic hospitals; otherwise he shall be discharged. 1853, 318, § 1. See Ch. 73, § 8. Special acts, &c., need not SECT. 16. In a complaint, prosecution, or other process, founded on a special act of the legislature, an ordinance or by-law of any city or complaint, &c. town, or an order of the mayor and aldermen, it shall be sufficient to set forth the offence fully, plainly, substantially, and formally; and no part of such law, ordinance, by-law, or order, need be set forth. 1838, 181, § 4. Offences com- and on the sea. Indictment in one SECT. 17. An offence committed on the boundary of two counties, or within one hundred rods of the dividing line between them, may be alleged in the indictment to have been committed, and may be prose cuted and punished, in either county. An offence committed upon the sea within one league of the shore may be prosecuted and punished in the adjacent county. SECT. 18. If a mortal wound is given, or other violence or injury where injury is inflicted, or poison is administered, in one county, by means whereof death ensues in another county, the offence may be prosecuted and pun ished in either county. and death in another. R. S. 133, § 8.* SECT. 19. If a mortal wound is given, or other violence or injury inflicted, or poison is administered, on the high seas, or on land either within or without the limits of this state, by means whereof death |