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the request of any subject, upon due cause shewn, provided such demandant be under the king's protection; for which reason it has been forinerly doubted, whether Jews, Pagans, or persons convicted of a præmunire, were entitled thereto (s). Or, if the justice is averse to act, it may be granted by a mandatory writ, called a supplicavit, issuing out of the Court of King's Bench or Chancery; which will compel the justice to act, as a ministerial and not as a judicial officer: and he must make a return to such writ, specifying his compliance, under his hand and seal (g). But this writ is seldom used : for, when application is made to the superior courts, they usually take the recognizances there, under the directions of the statute 21 Jac. I. c. 8. And indeed a peer or peeress cannot be bound over in any other place than the courts of *King's Bench or Chancery: though a justice of the peace has a power to require sureties of any other person, being compos mentis and under the degree of nobility, whether he be a fel. low justice or other magistrate, or whether he be merely a private man (h). Wives may demand it against their husbands: or husbands, if necessary, against their wives (i). But feme coverts, and infants under age, ought to find security by their friends only, and not to be bound themselves: for they are (1) 1 Hawk. P. C. 126.
(h) 1 Hawk. P. C. 127. (g) F. N. B. 80; 2 P. Wms. 202. (i) 2 Stra. 1207.
stated in the schedule marked (B), to
also the parish, township, or place of his or her residence; and in case such residence shall be in any city, town, or borough, shall also state and particularly specify the name of the street, and number of the house (if any) in which such person shall reside, and, also, whether owner or tenant thereof, or lodger therein.
* Schedule (B.)
to be holden at
, on the day of
next; and unless you personally make your appearance accordingly, the recognicances entered into by yourself and securities will be forth with levied on you and your bail. Dated this day of
are bound in the sum of £ your sureties
in the sums of £ each, to appear at the quarter or general sessions of the peace for the county of
18 . A. B. Justice of the Peace,
incapable of engaging themselves to answer any debt; which, as we observed, is the nature of these recognizances or acknowledgments (4).
8. A recognizance may be discharged, either by the demise and may be disof the king, to whom the recognizance is made; or by the feited by various death of the principal party bound thereby, if not before forfeited; or by order of the court to which such recognizance is certified by the justices, (as the quarter sessions, assizes, or King's Bench,) if they see sufficient cause (5): or in case
charged or forfeited by various means.
(4) But a person of the age of sixteen years is competent to enter into a recognizance conditioned to prosecute on a criminal charge; and if it be forfeited and estreated, the court will not discharge it, unless a sufficient case for relief be made out; Ex parte Williams, M'Clel. 483; 12 Price, 673.
(5) By 3 Geo. IV. c. 46, S. 5, if any person on whose goods and chattels any sheriff, &c. shall be authorized to levy any forfeited recognizance, or sum of money to be paid in licu or satisfaction thereof, shall give security to such sheriff, &c. for his appearance at the next general or quarter sessions, then and there to abide the decision of the court, and also to pay such forfeited recognizance or sum of money to be paid in lieu or satisfaction thereof, to gether with all such expences as shall be ordered and adjudged by the court; it shall be lawful for such sheriff, &c., and he is authorized and required, to discharge such person so giving such security out of custody: provided, that
in case such party so giving security
And by $ 6, the court of general or
* Schedule (C).
from the payment of the said sum of To the sheriff, (&c.) of the county,
you are therefore hereby (&c.) of
required to discharge the said sum of Whereas, hath appeared
from the estreat roll delivered before the justices assembled at the to you after the quarter sessions held general, (&c.) sessions held at
at , for which discharge this war. , on the day of rant shall be your authority, and shall , and has forfeited the sum of exonerate you from the said charge, on
[describe the nature of the for the final passing of your accounts at feiturc), and having made it appear, to the Exchequer, &c. the satisfaction of the justices so as
By order of the Court. sembled, that he should be relieved
he at whose request it was granted, if granted upon a private account, will release it, or does not make his appearance to pray that it may be continued (3).
lodged in gaol by such sheriff, &c., time and place at which the sessions the justices are empowered either to were to be held ; and the party had apremand such party, or to order such plied for relief at the ensuing quarter party to be discharged; and such order sessions, which was refused. The court shall be a sufficient discharge to such of Exchequer has still jurisdiction over sheriff, &c., on the passing of his ac- penalties, forfeitures, &c., occurring at counts at the Exchequer; and it shall assizes ; Rer v. Hankins, 3 D. & be lawful for the court to award such R. M. C. 148. But see Peller's case, costs to be paid by either party as to 13 Price, 299; M.Clel. 111. The duthem shall seem just.
plicate of fines, issues, amerciaments, By 4 Geo. IV. c. 37, the justices and forfeited recognizances, required to shall insert in any following roll, all be delivered into the Exchequer by the fines, forfeited recognizances, &c.which clerk of the peace, under 3 Geo. IV, have not been levied, and the sheriff c. 46, § 14, must be delivered in on shall detain the writs, which are to con- oath. Ex parte Hodgson, 1 M. & R. tinue in force ; where the sheriff goes M. C. 346 ; 2 Y. & J. 142. out of office, he shall deliver such rolls “ The enactment in 7 Geo. IV. c. 64, and writs to his successor, who is to $ 31, does not appear,” says a learned execute them; in all cases where the writer on criminal law, “to make any party is in another county, or has goods alteration in the practice of the sessions there, the sheriff shall send a warrant as to moving to respite or discharge reand a copy of the writ to the sheriff of cognizances before they have become such other county, who is to levy and "forfeited, as it only applies to cases of make return in thirty days after receipt recognizances which have been forfeited; of such warrant; and the sheriffs and nor does it appear to affect the discreclerks of the peace shall make returns tionary power given to the sessions to the treasury.
to remit the forfeiture, under the statute The court of Exchequer has now no 3 Geo. IV. c. 46, S 6." Car. C. L. jurisdiction over recognizances forfeited 130. But quare how far the sessions at quarter sessions, whereof the yearly have such discretionary power. The duplicate or certificate required by 3 court of King's Bench have decided Geo. IV. c. 46, $ 14, has been delivered that under the 3 Geo. IV. c. 46, the into the court. Therefore, where a sessions are empowered to discharge a recognizance for appearing and prefer- forfeited recognizance in those cases ring an indictment at a quarter sessions, only where the party has been committed had been forfeited, and certified into to gaol, or has given security to appear the court of Exchequer ; and the for at the sessions: and, therefore, that feiture had been levied by the sheriff, where a party, whose recognizance had pursuant to 3 Geo. IV. c. 46; the become forfeited for not appearing to court held, that they were not author- an indictment, and against whom proized to order the discharge of the re- cess had issued, paid to the sheriff the cognizance, although the justice, before sum mentioned in the recognizance, in whom the recognizance had been taken, order to prevent a sale of his goods, did not comply with 4 of the statute, and the sessions afterwards by an order by giving the party bound notice of the mitigated the recognizance to a small
bound over to
Thus far what has been said is applicable to both species of recognizances, for the peace, and for the good behaviour: de pace, et legalitate, tuendá, as expressed in the laws of king Edward. But as these two species of securities are in some respects different, especially as to the cause of granting, or the means of forfeiting them, I shall now consider them separately: and first, shall shew for what cause such a recognizance, with sureiies for the peace, is grantable; and then, how it may be forfeited.
1. Any justice of the peace may, ex officio, bind all those who may be to keep the peace, who in his presence make any affray; or keep the peace. threaten to kill or beat another; or contend together with hot and angry words; or go about with unusual weapons *or [255*] attendance, to the terror of the people; and all such as he knows to be common barretors; and such as are brought before him by the constable for a breach of the peace in his presence: and all such persons, as, having been before bound to the peace, have broken it and forfeited their recognizances (k). Also, wherever any private man has just cause to fear Who may de. that another will burn his house, or do him a corporal injury, the peace. by killing, imprisoning him, or beating him, or that he will procure others so to do, he may demand surety of the peace against such person: and every justice of the peace is bound to grant it, if he who demands it will make oath, that he is actually under fear of death or bodily harm; and will shew that he has just cause to be so, by reason of the other's menaces, attempts, or having lain in wait for him ; and will also
mand surety of
sum, and directed the sheriff to discharge the residue from the recognizance, such order was void ; and that the party was not entitled to recover
ff the sum which the sessions had ordered to be discharged; Haynes v. Hayton, 7 B. & C. 293; 2C. & R. 621.
Where a defendant, indicted at the quarter sessions for a conspiracy, had entered into insufficient recognizances, it was held that the court of King's Bench, on a removal by certiorari, might discharge them on motion, and
compel him to enter into better secu-
farther swear, that he does not require such surety out of malice or for mere vexation (). This is called swearing the peace against another : and, if the party does not find such sureties, as the justice in his discretion shall require, he may
immediately be committed till he does (m) (6). By what means 2. Such recognizance for keeping the peace, when given, zances may be may be forfeited by any actual violence, or even an assault,
or menace, to the person of him who demanded it, if it be a special recognizance: or, if the recognizance be general, by any unlawful action whatsoever, that either is or tends to a breach of the peace; or, more particularly, by any one of the
By what means these recogni.
(1) I Hawk. P. C. 127.
(m) Ibid. 128.
(6) A justice of the peace is authorized to require sureties of the peace for a limited time, according to his discretion, and need not bind the party over to the next sessions only; Willes v. Bridger, 2 B. & A. 278. And the court of king's bench will not interfere with the discretion of magistrates in taking security for keeping the peace; Rex v. Tregarthan, 2 Nev. & Man. 379. As all persons present, countenancing a prize fight, are guilty of an offence, whenever a prize fight is expected the magistrates ought to cause the intended combatants to be brought before them, and compel them to enter into securities to keep the peace till the assizes or sessions; and, if they refuse to enter into securities, to commit them; Rer v. Billinghum, 2 C. & P. 234. An attachment upon articles of the peace is bailable before justices of the county; Rer v. Bomaster, 1 W. Bl. 233. Articles of the peace ought to be exhi bited in the neighbourhood, that the security may be given there; Rex v. Waite, 2 Burr. 780; 2 Ld. Keny. 511. Where a person exhibits articles of the peace, and swears that his life is in dan. ger, the truth of the facts cannot be controverted; Rex v. Doherty, 13 East, 171; Lord Vane's case, Id. 172, n. There ought to be a reasonable foun. dation on the face of the articles, to induce a fear of personal danger, before
the court will require sureties of the peace; Id. ibid. A wife may sue a supplicavit in chancery against her husband, and to find sureties not to beat or ill treat her, aliter quam causa regiminis et castigationis; Id. Ibid. Upon articles of the peace exhibited, the court have power of requiring bail for such a length of time as they shall think necessary for the preservation of the peace, and are not confined to a twelvemonth; Rex v. Bowes, 1 T. R. 696. Where articles of the peace appeared malicious and untrue, the court stayed process on them, and committed the exhibitant for perjury; Rer v. Parnell, 2 Burr. 806; and see 3 Burr, 1922. The court will not receive articles of the peace, if the parties live at a distance in the country, unless they have previously made application to a justice in the neighbourhood; 2 Burr. 780. And if the court do receive them, the secondary may indorse the attachment in the form required, and order a justice of the county to take the security ; id. 1039; 1 Bla 233. It has been held that the affirmation of a quaker is not sufficient on which to grant surety of the peace; Rex v. Grun, 1 Stra. 527; 12 Mod. 243; but now that the evidence of quakers is admissible on affirmation in all criminal cascs, (9 Geo. IV. c. 32, $ 1), the rule would not, it is presumed, hold good,