before the justices in Hampshire, in a stated sun, to be regula ted by the discretion of the court; and laid this down as a general rule, to be chserved in all similar cases for the future,

2 Burr. Rep. 1039. 1 Black. Rep. 233.

By the commission of the peace, one or more justices hove Where it may power to cause to come before them all those who to any of he granted by a the king's people, concerning their bodies, or the fing of justice. 'their houses, have used threats, to find sufficient secury for 'the peace, or their good behaviour towards the king and his 'people and if they shall refuse to find such security, to cause them in the king's prisons to be securely kept, until they shall 'find such security.'

And it seems that any justice of peace, may according to his discretion, bind all those to the peace, who in his presence shall make any affray, or shall threaten to kill or beat any person, or shall contend together with hot words, or shall go about with unusual weapons or attendants, to the terror of the people; and also all such persons as shall be known by him to be common barretors; and all those who shall be brought before him by a constable for a breach of the peace in the presence of such con. stable. 1 Hawk, c. 60. s. 1.

Also he that standeth bound to keep the peace, if he hath broken or forfeited his recognizance by breach of the peace, may be bound to the peace, and the justice may and ought to bind him anew, and by better sureties, for the safety of the person in danger. Dalton, c. 1·16. s. 4.

But this must not be done until the party be convicted of the breach of the peace upon his recognizance; for before his conviction it resteth indifferent whether the recognizance be for, feited or no; but after that he is thereof convicted (whether the forfeiture be levied or not), the recognizance is utterly determined; and then he is to be compelled to find new surety, or else to be sent to the gaol. Dalton, c. 116, s. 4. Cromp. 141.

And it is said, that if the person against whom surety of the peace is craved be present, the justice of peace may commit him immediately, unless he offer sureties; and that it follows from hence that he may be commanded by word of mouth to find sureties, and committed for his disobedience. 1 Hawk, c. 60,

8. 9.

But it was in Wilkes's case, Ea. 3 Geo. 3, laid down by Pratt Ch. J. that no person ought to be committed by a justice of the peace for not finding security for keeping the peace, until he has been required to find security, and has refused or neglected to do it. 4 Bacon's Abr. 692.

And if the person against whom surety of the peace is craved be absent, he cannot be committed without a warrant from some justice of peace, in order to find sureties; and the warrant ought to be under seal and to shew the cause for which it is granted, and at whose suit, 1 Hawk. c. 60. s. 9.

In what manner

And it may be directed to any indifferent person. Ibid. The justice who grants a warrant, commanding a person to find security for the peace, may make the warrant to bring the party before himself or some other justices, or he may make it to bring the party before himself only; for he that maketh the warrant, for the most part, hath the best knowledge of the - matter, and therefore he is the fittest to do justice in the case. 5 Co. Rep. 59.

The process of the peace can be executed only by the persons the peace war- to whom it is directed, or some of them, unless it be directed to rant is to be ex- the sheriff, who may, either by parol, or by precept in writing, authorise an officer sworn and known, to serve it; but cannot empower any other person, without a precept in writing, Lamb. 89. 1 Hawk. c. 60. s. 11.

@cuted.

What justice to be carried before.

If the warrant be made in the common form, directing the of ficer to cause the party complained of to come before some jus. tice of the peace, to find sufficient surety, and if he shall refuse so to do, to convey him immediately to prison, without expect ing any further warrant, until he shall willingly do the same; the officer who serves it, before he makes any arrest, ought first to require the party to go with him, and find sureties according to the purport of the warrant; but upon his refusal to do cither, that is, either to go before the justice, or to find sureties, be may carry him to the gaol by force of the same warrant, with out more. 1 Hawk. c. 60. s. 12.

Or the constable or officer may bring him in that case before the justice; and if he refuses there to give sureties, he may commit him, without any further warrant or mittimus, 2 Hale's Hist. 112.

However, notwithstanding these authorities, it does not seem advisable for the constable to carry the party to prison, without a further warrant, neither is it now usual for the justice to grant a warrant in the form abovementioned.

If the warrant specially direct that the party shall be brought before the justice who made it, the officer ought not to carry him before any other; but if the warrant be general, to bring him before any justice of peace, the officer has the election to bring him before what justice he pleases, and may carry him to prison for refusing to find surety before such justice. 1 Hawk. c. 60. s. 13.

And if the party is carried before another justice, and not he fore him who issued the warrant, such other justice must take the surety, and bind him by recognizance in all points, as the form of the precept doth require. Dalton, c. 118. s. 6.

And when the party cometh before the justice of peace hy force of this warrant, the party must offer sureties, or else the justice may commit him to prison; for the justice needeth not to demand surety of him. Dalton, c. 118. s. 4.

It seems generally agreed, that when a person authorised by warrant of a justice of the peace, to compel a man who is sheltered in an house, to find sureties for the peace or good beha

viour, is denied quietly to enter into it, he may justify breaking open the doors in order to take him; but he must first signify to those in the house the cause of his coming, and request them to give him admittance. 2 Hawk. c 14, s. 3. Dalton,

c. 118. $ 3.

If the officer do arrest the party, and do not carry him be- Officer neglect fore the justice, to find sureties; or upon the refusal of the ing his duty, party, if the officer shall arrest him, and do not carry him to the gaol, in both these cases the officer is punishable by the jus. tices, for this neglect, by indictment and fine at their sessions : and also the party arrested may have his action of false imprisonment for the arrest; for when the officer doth not pursue the effect of his warrant, his warrant will not excuse him of that which he hath done. Dalton, c. 118. s. 4.

This recognizance which the justice taketh for the keeping of the peace, is rather of congruence than by any express authority given them. Dalton, c. 119. s. 1.

And this recognizance, if it be taken before a justice of peace, is to be regulated, as to the number and sufficiency of the sureties, the largeness of the sum it is to be taken in, and the time it is to continue in force, at the discretion of the justices of the peace by whom it is taken. 1 Hawk. c. 60. 8. 15.

But if it be taken in pursuance of a writ of supplicavit, it must be wholly governed by the directions of such writ. Ibid.

And it hath been said, that a recognizance to keep the peace, as to AB, for a year, or for life, or without expressing any Certain time (in which case it shall be intended to be for life), or without fixing any time or place for the party's appearance, or without binding him to keep the peace against all the king's people in general, is good. Ibid.

However, it seems to be the safest way to bind the party to appear at the next sessions of the peace, and in the mean time to keep the peace as to the king and all his liege people, more especially as to the party, according to the common form of precedents. 1 Hawk. c. 60. s. 16.

Form of the ra¬ cognizance,

Insufficient

And he that standeth bound to keep the peace, if his sureties be insufficient, the same justice, or another justice of sureties. peace, may compel him to find better sureties, and may take a new recognizance for the same. Dalton, c. 116. s. 4. c. 119. $. 9.

But if the surties die, the party principal shall not be compelled to find new sureties.* Dalton, c. 119. s. 9.

If the recognizance be taken by force of a writ of suppli- Recognizance cavit, it need not be certified till the justice receive a writ of to be certified. certiorari to that purpose. 1 Hawk. c. 60. s. 18.

But if it it be taken upon a complaint below, it must be cer

*The reason hereof seems to be, because their representatives are Fiable to answer.

peace

How the warrant may

tified, sent, or brought to the next sessions of the peace by force of the stat. 3 Hen. 7. c. 1, whereby it is enacted, that every justice of the peace, that shall take any recognizance for keeping the peace, shall certify, send, or bring the recogni zance at the next sessions of the peace where he is or hath 'been justice, that the party so bound may be called.'

It is said, that if one who fears that the surety of the peace will be demanded against him, find sureties before any justice be superceded. of the peace of the same county, either before or after a warrant is issued against him, he may have a supersedeas from any justice, which shall discharge him from arrest from any other justice at the suit of the same party for whose security he has given such surety. 1 Hawk. c. 60. s. 14.

And where this surety is grauted by another justice, and not by him who issued the warrant, such other justice having taken surety of the peace, may and ought, upon request, in make his supersedeas to all officers, and to all other justices of the same county; and thereby the said party shall be di as harged from finding other surety, and from any other arrest for the same cause. Dalton, c. 118. s. 6.

But by such supersedeas the other justice cannot discharge the warrant of the first justice, until the party be bound in deed, nor give any other day to the party to appear. Denton,

118. s. 6.

And Dalton says that this supersedeas is sufficient, though it neither name the sureties, nor contain the sums wherein they are bound, although it is the better form to express them both. Dalton, c. 118. s. 7.

Also it is said, that if the party shall mislike to be or stand bound to the peace by justices of the peace in the county, then may he (either before or after that he is bound in the county) give surety for the peace, either in the King's Bench, or in the Chancery; and thereupon the party may have a supersedeas out of the court where he hath given such surety, to restrain the justices of peace of the county from proceeding. Dalton, c. 118

S. 8.

But this practice having been often abused, it is enacted, by stat. 21 Jac. 1. c. 8 that no writs of supersedeas shall be granted out of the Chancery or King's Bench, but upon mo. tion in open court, and on such sufficient sureties, as shall ap. pear on oath to the Court, to be assessed in the subsidy book at 5. lands or 101. goods, and unless it shal! also first appear to the Court, that the process of the peace or good behaviour is presented against him during such supersedeas, bona fide, by some party grieved in that court out of which the supersedeas is desired to be awarded.

V, In what cases a recognizance for keeping the peace is

forfeited.

He who is bound to keep the peace, and to appear at a ses

sion of the peace, must appear and record his appearance, etherwise his recognizance is forfeited; and although the party who craved the surety of the peace come not to pray that it may be continued, the justices may at their discretion order it to be continued till auother session of the peace. Bro. Peace,

Lamb. 109.

And by 3 Hen. 7. c. 1, if any party who is called at a session of the peace upon a recognizance for keeping the peace, make default, the default shall be there recorded, and the recognizance, with the record of the default, shall be sent and certified into the Chancery, or afore the king in his beuch, or into the king's Exchequer.

However, if the party have any excuse for his not appearing, it seems that the sessions is not bound peremptorily to record his defauit, but may equitably consider of the reasonableness of such excuse. 1 Hawk, c. 60. s. 18.

And there is no doubt but that it may be forfeited by any actual violence to the person of another, whether it be done by the party himself, or by others through his procurement, as manslaughter, rape, robbery, unlawful imprisonment, and the like. 1 Hawk. c. 60. s. 20.

Also it has been holden, that it may be forfeited by any trea- Actual son against the person of the king, and also by any unlawful as- lence. sembly in terror of the people, and even by words directly tending to a breach of the peace, as by challenging one to fight, or in his presence threatening to beat him, or the like. 1 Hawk. c.

60. s. 21.

But if the party threatened be absent, it is otherwise; and yet if the party so bound shall threaten to kill or beat a person who is absent, and after shall lie in wait for him, to kill or beat him, this is a forfeiture of the recognizance. Dalton, c. 121.

$. 1.

However, it seems that it shall not be forfeited by bare words Words. of heat and choler, as the calling a man knave, teller of lies, rascal, or drunkard; for though such words may provoke a choleric man to break the peace, yet they do not directly chalJenge him to it, nor does it appear that the speaker designed to carry his resentment any further; and it has been said, that even a recognizance for the good behaviour shall not be forfeited for such words; from whence it follows much more that a recognizance for the peace shall not. 1 Hawk. c. 60.

$. 22.

*And Mr. Dalton says, in case of the sickness of the party, so that he cannot appear, whereby in strictness of law the recognizance is forfeited, he has known that the justices, upon due proof thereof, have forborne to certify or record such forfeiture or delanlt, and that they bave taken sureties for the peace of some friends of his present in court until the next sessions; for that the principal intent of the reCognizance was but the preservation of the peace; but he doubts how this is warrantable by their oath.. Dalton, c. 120. s. 3.