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and may insert such their agreement in their submission, or the condition of the bond or promise; and upon producing an affidavit of such agreement, and upon reading and filing such affidavit in court, the same may be entered of record, and a rule shall be thereupon made, that the parties shall submit to, and finally be concluded by such arbitration; and in case of disobedience thereto, the party shall be subject to all the penalties of contemning a rule of court, and process accordingly; which shall not be stopped by any order, &c. of any other court, either of law or equity, unless it appear on oath that the arbitrators or umpire misbehaved themselves, and that such award was corruptly procured.
Any arbitration or umpirage procured by corruption or undue means shall be void and set aside by any court of law or equity, so that such corruption or undue practice be complained of in the court where the rule is made for such arbitration, before the last day of the next term after such arbitration made and published to the parties—$ 2.
The form of an Agreement. Articles of agreement entered upon this
18 between A. B. of of the one part, and C. D. of of the
Whereas (here state the subject in dispute, and that an action is now pending in the Court of Q. B.) And whereas the said A. B. and C. Ď., for the purpose of putting an end to all controversy touching the matters in question, have respectively agreed to refer all questions, differences and disputes whatsoever, now pending in the said matters, (and if an action is pending, "also by whom, to whom, and in what manner, the costs of all the parties in such cause or suit shall be paid”) to the consideration, judgment and arbitrament, and final award of being a person indifferently named and chosen by the parties hereto, as an arbitrator in the premises; and further, that the said reference and submission shall and may, in pursuance of the statute in that behalf made and provided, be made an order of her Majesty's said court of Queen's Bench, if the said court shall think fit to order the same. Now these presents witness, that for the consideration and purposes aforesaid, it is hereby declared and agreed upon, by and between the said parties to these presents, that they the said parties hereto, and each of them, their and each of their heirs, executors and administrators, on his and their respective parts, shall and will well and truly stand to, abide by, perform, fulfil and keep, the order, arbitrament, final determination, and award of the said the arbitrator so as aforesaid indifferently named and chosen by them the said parties hereto, to adjudge, arbitrate, determine, order and award between them, of and concerning all questions, titles, controversies, differences and disputes, now pending or subsisting between them in the premises, and also by whom and in what manner, and to whom the costs in the said suit are or ought to be paid, so as the said arbitrator shall make such his order, arbitrament, final determination and award in writing, under his hand and seal, ready to be delivered to the said parties, or such of them as shall require the same, on or before the
day of next ensuing the date of these presents. And it is hereby agreed by and between the said parties hereto, that no action at law or suit in equity, shall be commenced or prosecuted by any or either of them against the said account of his award, to be made pursuant to this agreement.
In witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year first above written.
A. B. [L.S.] presence of
C.D. (L.S.] E. F.
for or on
Sign the presence of delivered, }
, yeoman, send greeting : Whereas (here recite the subject matter in dispute, and the agreement to refer the same to arbitration, as in the above form.) Now know ye, and these presents, witness, that I, the said having taken upon myself the said reference, and having heard the statement of the parties and their witnesses, and having examined the matters and proofs produced on both sides, and having investigated the transactions and accounts by and between the said parties, and maturely considered the same, do make my award in manner following, that is to day:- I do hereby award and determine that there is now justly due and owing to the said A.B. from the said C.D. the sum of £ upon a balance of account: and I do award, order and direct that the said C.D. shall pay the said sum of £ to the said A.B. or his order, within after the publication of this my award, and notice thereof in writing given to the said C. D.: and I do further order and direct that each of the said parties shall pay his own costs, charges and expenses of and concerning the said suit, and of all matters whatsoever attending the said reference: (a) and I do further order and direct that the costs and charges of and attending this my award shall be paid equally between the said parties.
In witness whereof, I have hereunto set my hand and seal, the
18 Signed, sealed, and delivered,
in the presence of
(a) The arbitrator may award otherwise, as he may think proper, and award either party to pay the whole.
ARRAIGNMENT. The arraignment of a prisoner consists in calling him to the bar by his name. and commanding him to hold up his hand, in order to identify his person, reading over distinctly the indictment to him, that he may understand the charge, and demanding of him whether he is “ guilty” or “not guilty.” The practice formerly was to ask him, in addition, how he would be tried—to which the answer was—" by God and my country.” But now, by 4 & 5 V., c. 24, $ 14, if any person whatsoever, being arraigned upon an indictment for treason, felony or piracy, shall plead thereto a plea of “not guilty,” such person shall by such plea, without any further form, be deemed to have put himself or herself upon the country for trial, and the court shall, in the usual manner, order a jury for the trial of such person accordingly.
$ 15. If any person, being arraigned upon or charged with any indictment or information for treason, felony, piracy or misdemeanor, shall stand mute of malice, or will not answer directly to the indictment or information in every such case, it shall be lawful for the court, if it shall so think fit, to order the proper officer to enter a plea of “not guilty” on behalf of such person, and the plea so entered shall have the same force and effect as if such person had actually pleaded the same.
The prisoner should stand at the bar till he receives judgment, without irons, shackles or bonds.—2 Hale, 219.
ARREST. An arrest is, in the criminal law, an apprehending or restraining of the person of any individual, in order to be forthcoming to answer an alleged or suspected offence or crime; and to such an arrest all persons whatsoever, without distinction, are equally liable; but no man can, in general, be arrested unless charged with such a crime as will at least justify holding him to bail when taken.-4 Bl. Com. 289.
Arrest by Warrant. A warrant may be granted, in extraordinary cases, by the privy council, or any of the secretaries of state, but ordinarily, by justices of the peace.—1 Ld. Raym., 65.
A justice may grant a warrant in all cases where he has a jurisdiction over the offence, in order to compel the person accused to appear before him.-12 Co. 130; 2 Haw. 34; Bane v. Methuen, 2 Bing. 63.
Thus a warrant may be granted in all treasons, felonies and breaches of the peace, and also for all such offences as a justice has power to punish by statute.—Ibid. So a justice may grant a warrant against an offender charged on oath with having published a libel, and compel him to find sureties. -Butt v. Conant, 1 Brad. f B. 548.
It may be issued also to apprehend a person accused of felony, though not indicted, or to apprehend a person suspected of felony, though the original suspicion be not in the justice issuing the warrant, but in the party that prays it, for the justice is the competent judge of the probability offered to him of such suspicion.—2 Hale, P. C. 108, and see 34 Edw. III. c. 1.
But no warrant should in any case be granted without an examination upon oath of the party requiring it, as well to ascertain that there is a felony or other crime actually committed, as also to prove the cause and probability of suspecting the party against whom the warrant is prayed.—2 Hale, 100.
The reasonable grounds of suspicion are—common fame; being found in such circumstances as induce a strong presumption of guilt; the flight or escape of the person suspected; being found in evil company; or living an idle, vagrant and disorderly life.—2 Haw. 76.
The warrant should be under the hand and seal of the justice; should set forth the time and place of making, and the cause for which it is made; and should be directed to the constable or other peace officer, (or it may be to any private person, by name—Salk. 176.) requiring him to bring the party, either generally before any justice for the county, (or district,) or only before the justice
who granted it: the warrant in the latter case being called a special warrant—2 Haw. 85; 4 Bl. 290.
A general warrant to apprehend all persons suspected, without naming or describing any person in particular, is illegal and void, for it is uncertain.—1 Hale, 580; 2 Haw. 82.
In like manner, a blank warrant, filled up by a third person, with the name of an officer after the warrant is signed and sealed by the magistrate, is illegal.--Stockley's case, 1 East. P. C. 310; Houson v. Barrow, 6 T. R. 122; Stevenson's case, 10 St. Tr. 462.
The cause of the arrest should be stated with sufficient certainty on the face of the warrant, in order to shew the jurisdiction of the court or magistrate granting it.
When a warrant properly penned is received by the officer, he is bound to execute it within the district for which the jurisdiction extends; and the officer will (by 24 G. II., c. 44) be in that case indemnified, even though the magistrate should not have strict authority to grant it.-Bl. 291.
The warrant of a justice of the peace in one county must be backed, that is, signed by a justice of the peace in another, before it can be executed in the latter county; and see 23 G. II., c. 25, and 24 G. II., c. 55, also 16 V. c. 178, § 3, and 16 V. c. 179, § 7.
When a constable, after he has arrested the party under & warrant, suffers him to go at large, upon his promise to come again and find securities, he cannot afterwards arrest him by force of the same warrant; but if the party return and put himself again under the custody of the constable, it seems that the constable may then lawfully detain him and carry him before the justice.-2 Haw. 81.
And if the party escape, the officer may take him again, although he goes out of view, or flies into another town or county:-Dalt. c. 169.
Arrest without Warrant. A justice of the peace may apprehend, or cause to be apprehended, by word only, any person committing a felony or breach of the peace in his presence.—1 Hale, -86; and see 34 Edw. III., c. 1.
So the sheriff and the coroner may apprehend any felon within the county, without warrant.--2 Hale, 87, 88; 4 Bl. Com. 292.
So also a constable may arrest any one for a felony or breach of the peace committed in his view, and carry him before a justice of the peace. And in case of a felony actually committed, or a dangerous wounding whereby felony is likely to ensue, he may also, upon a probable suspicion, arrest the party, notwithstanding the suspicion arise not in his own mind, but in that of some other person, who communicates it to the constable. But in this last case he ought to inquire scrupulously into the causes of the suspicion; for though he cannot do this upon oath, it may reasonably carry over the suspicion to his own mind.—Hale, 91.
And although it should afterwards appear that no felony has been committed, yet he may justify an arrest without a warrant on a charge of felony made by another person, on reasonable cause of suspicion.—Samuel v. Payne, 359. Or even if, without any charge, the constable himself has reasonable cause of suspicion.-Beckwith v. Shilby, B. & C. 635.
And if one menace another to kill him, and complaint be made to the constable forthwith, the constable may (in order to avoid the present danger) arrest the party, and detain him till he can conveniently bring him to a justice of the peace; and this on the ground that it is the duty of the officer to