justice, who in case of refusal or neglect to find sureties commits him to prison. If the justice was deceived in the sufficiency of the sureties, he Insufficient or any other justice may afterwards compel the party to find and sureties. put in other sufficient sureties, and may take a new recognizance for the same. Dalt. c. 119. p. 278. If the sureties die, the party principal shall not be compelled to Sureties dying. find new sureties, Dalt. c. 119., because their executors and ad ministrators are liable. But if a man that was bound to keep the peace hath broken Breaking of his bond, the justices ought of discretion to bind him anew, the bond. Lamb. 78. But not until he be thereof convicted by due course of law; for before conviction he standeth indifferent whether he hath forfeited his recognizance or not. Cromp. 125. VII. What ought to be the Form of a Recognizance for the Peace. On complaint to a justice. As to the point what ought to be the form of such a recogni- On suppplizance, if it be taken in pursuance of a writ of supplicavit, it may cavit. be wholly governed by the direction of such writ: but if it be taken before a justice, upon a complaint below, it seems, that it may be regulated by the discretion of such justice, both as to the number and sufficiency of the sureties, and the largeness of the sum, and the continuance of the time for which the party shall be bound. And it hath been said that a recognizance to keep the peace as to any person, for a year, or for life, or without expressing any certain time (in which case it shall be intended 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. 1 Haw. c. 60. §15. See the form, post. 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, especially as to the party, according to the common form of precedents. 1 Haw. c. 60. § 16. Better way to bind to the next sessions. the next sessions only. However, where articles of the peace had been exhibited It is not imbefore a justice, and the defendant, being required to give security perative on the for two years, refused, and was in consequence committed by justice to take warrant for that period, unless he should in the mean time find recognizance to sureties for two years, the defendant brought his action against the magistrate for false imprisonment; after verdict for plaintiff, the question of the legality of the warrant came before B. R. on a special case; and, after time taken to consider, the court held, on a review of all the authorities, that it was competent for the justice to require sureties for such specific time, and that, though often it might be the safer and better course to take the recognizance to the next sessions only, still that it was not imperative; and it was said that the stat. 3 H. 7., requiring the recognizance to be certified to the next sessions, was a cumulative provision only, and did not limit the time for which the recognizance was to be taken; and judgment was given for the defendant. Willes v. Bridger, 2 B. & A. 278. But if a recognizance to appear at the sessions be taken, and an Where party is bound to ap pear at the sessions, fresh articles of the peace must then be exhibited. How to be certified. What is deemed no forfeiture. order of court for finding sureties applied for, articles of the peace must be exhibited. The practice referred to in a former edition of this work, if any such still prevail, of calling on the party at the sessions at which he is bound to appear to find sureties to the following sessions, and so on, from sessions to sessions, without any fresh complaint, is conceived to be incorrect. In R. v. Bowes, E. 27 G. 3., B. R., 1 T. R. 696., where Lady Strathmore had exhibited articles of the peace against the defendant (her husband), the court of K. B. ordered him to give security for 14 years, (it being a case of great outrage, and articles of the peace having been once before exhibited against him on a different complaint,) himself in 10,000l. and two sureties in 5000l. each. The defendant afterwards applied to the court to reduce the time to one year instead of fourteen, and also to diminish the sum; and in the course of the argument in support of the rule, the defendant's counsel suggested that the court might take bail for one year at first, and afterwards renew that from year to year, if they should see occasion, without any fresh facts being exhibited against him. But though the court, on the particular circumstances of the case, ordered the time to be reduced to two years, because an information then depending for the outrage complained of would be disposed of within that time, when the court might deal with the defendant as they thought proper, in the event of his being convicted, Mr. J. Ashhurst, in answer to the suggestion at the bar, that new bail might be required of the defendant at the end of the first year, on the original complaint, said, "I very much doubt whether we have such a power. It has been admitted that there never was any instance of the kind; and I confess I should be very loath to establish such a precedent." VIII. How such Recognizance shall be certified. If it be taken by force of a writ of supplicavit, it needs not be certified till the justice receive a writ of certiorari to that purpose. But if it be taken upon a complaint below, it must be certified, sent, or brought to the next sessions, by force of stat. 3 H. 7. c. l that the party so bound may be called. 1 Haw. c. 60. § 18. IX. How such Recognizance may be forfeited. There are divers things which may be done against the peace, and divers offences for which an indictment against the peace will lie, and yet the committing or doing such offence or act shall be no forfeiture of the recognizance for the peace; for that the act that shall cause a forfeiture of such recognizance must be done or intended unto the person, as is aforesaid, or in terror of the people. Therefore, to enter into lands, where he ought to bring his action; or to disseise another of his lands; or to enter into lands or tenements with force, being without offer of violence to any man's person, and without public terror; or to do a trespass in another man's corn or grass; or to take away another man's goods wrong. fully, so it be not from his person; or to steal another man's horse, or other goods feloniously, being not from his person; all these, and the like, are breaches of the peace, and yet these will make no breach of this recognizance, nor breach of the peace within the meaning of the commission of the peace. Dalt. c. 121. But the recognizance is forfeited, if the party make default of What shall be appearance, and the same default shall be recorded. 3 H. 7. c. 1. a forfeiture. However, if the party have any excuse for his not appearing, it seems that the sessions are not bound peremptorily to record his default, but may equitably consider of the reasonableness of such excuse. 1 Haw. c. 60. § 18. And Mr. Dalton says, in case of the sickness of the party, so Case of sickthat he cannot appear, he has known that the justices, upon due ness. proof thereof, have forborne to certify or record such forfeiture or default; and that they have 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 queries how this is warrantable by their oath. Dalt. c. 120. p. 278. Also, there is no doubt but that it may be forfeited by any Actual violence. 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 Haw. c. 60. § 20. Also, it hath been holden, that it may be forfeited by any Acts or words treason against the king's person, and also by any unlawful as- tending to sembly in terrorem populi, and even by words directly tending to breach of the a breach of the peace, as by challenging one to fight, or in his presence threatening to beat him. 1 Haw. c. 60. § 21. Otherwise it is if the party be absent; 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. Dalt. c. 121. p. 280. However, it seems that it shall not be forfeited by bare words of heat and choler, as calling a man a 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 challenge him to it, nor does it appear that the speaker designed to carry his resentment any farther and it hath been said, that even a recognizance for the good behaviour shall not be forfeited for such words; from whence it follows, à fortiori, that a recognizance for the peace shall not. 1 Haw. c. 60. § 22. peace. Bare words of anger not suffi cient. An actual assault in some cases does not amount to a Also, there are some actual assaults on the person of another, which do not amount to a forfeiture of such recognizance; as if an officer, having a warrant against one who will not suffer himself to be arrested, beat or wound him in the attempt to take him; or forfeiture. if a parent in a reasonable manner chastise his child; or a master his servant, being actually in his service at the time; or a schoolmaster his scholar; or a gaoler his prisoner; or even a husband his wife, as some say; or if one confine a friend who is mad, and bind and beat him, in such a manner as is proper in such circumstances; or if a man force a sword from one who offers to kill another therewith; or if a man gently lay his hands upon another, and thereby stay him from inciting a dog against a third person; or if a man beat another (without wounding him, or throwing at him a dangerous weapon), who wrongfully endeavours with violence. to dispossess him of his lands or goods, or the goods of another delivered to him to be kept, and will not desist upon his laying his On breach, recognizance to be removed into courts at Westminster. Discharged on appearance. By the death of the king or party bound. Or the release of the party complaining, &c. hands gently on him, and disturbing him; or if a man beat, or (as X. How the Recognizance being forfeited shall be proceeded on. It is said that the sessions cannot in any case proceed against a party for a forfeiture of his recognizance, either in respect of his not appearing, or breaking the peace; but that the recog nizance itself, with the record of default of appearance, ought to be removed into some of the courts at Westminster, who shall proceed by scire facias upon such recognizance. 1 Haw. c. 60. § 18. XI. How such Kecognizance may be discharged. He who is bound to the peace, and to appear at a certain day, must appear at that day and record his appearance, although he who craved the peace cometh not to desire that it may be continued; otherwise the recognizance cannot be discharged. Dalt. c. 120. p. 278. If the recognizance be made to keep the peace generally, without any time or day limited, it shall be construed to be during the party's life; and this the justice may do upon reasonable cause but if such surety be so taken during the offender's life, neither the king, nor the justice, nor the party, can release or discharge it and therefore the justice must be well advised, how he granteth such surety. Dalt. c. 119. p. 276. But it seems to be agreed, that it may be discharged by the death or demise of the king in whose reign it was taken, or of the principal party who was bound thereby, if it were not forfeited before. 1 Haw. c. 60. § 17. Also it hath been holden, that it may be discharged by the release of the party at whose complaint it was taken, being certified together with it; but this may justly be questioned, because the recognizance is not to the subject, but to the king, and consequently cannot be discharged by the subject, who is not a party to it: however, such a release will be a good inducement to the court to which such a recognizance shall be certified, to dischareg it. And so will the non-appearance of the party at whose complaint it was taken, in order to pray the continuance of it; and yet it is said that the sessions in that case may in their discretion refuse to discharge it. However, it is certain that such a recogni zance cannot be pardoned or released by the king before it is broken, because the subject has a kind of interest in it. And it is said that the sureties are not discharged by their death, but that their executors continue to be bound as their testators were. 1 Haw. c. 60. § 17. sessions. And if a man be bound to keep the peace towards the king and May be disall his people, but not towards any person certain, and to appear charged or conat such a sessions, the court at that sessions may make proclam- tinued by the ation, that if any man can shew cause why the peace granted against such a one shall be continued, he shall speak; and if no person cometh to demand the peace against him, or to shew cause why it should be continued, then the court may discharge him. But if a man be bound as aforesaid, and especially to keep the peace towards a certain person, there, though such person cometh not to desire the peace may be continued, yet the court by their discretion may bind him over till the next sessions, and that may be to keep the peace against that person only, if they shall think good; for it may be that the person who first craved the peace is sick, or otherwise letted, so as he cannot come to that sessions to demand the continuance of the peace further. Dalt. c. 120. p. 278. Likewise, if the party be imprisoned for default of sureties, and He that deafter he that demandeth the peace against him happen to die, it mandeth sureseemeth the justice may make his liberate or warrant for the deli- ties dying. very of such prisoner; for after such death, there seemeth no cause to continue the other in prison. Also, any justice may, upon the offer of such prisoner, take surety of him for the peace, and may thereupon deliver him. Dalt. c. 118. p. 274. Surety for the Good Behaviour. viour includeth the peace. A MAN may be compelled to find sureties both for the good Good beha behaviour and for the peace; and yet the good behaviour includeth the peace: and he that is bound to the good behaviour is therein also bound to the peace. Dalt. c. 122. p. 286. This surety for the good behaviour being of near affinity to surety for the peace, both as to the manner in which it is to be taken, superseded, and discharged, it seemeth not to require a particular consideration, save only as to these two points: I. For what Misbehaviour it is to be required. [34 Edw. 3. c. 1.] II. For what it shall be forfeited. I. For what Misbehaviour it is to be required. It doth not appear that the conservators of the peace at common law had any power as touching the good behaviour, further than as it had a relation to the peace; and not as it is contradistinguished from it. And it seemeth that the power which the justices of the peace do exercise at this day, in relation thereto, doth solely depeud upon the commission of the peace, and the statute of 34 Ed. 3. c. 1. (Except in some special instances, wherein the power of binding to the good behaviour is given to them by particular statutes, which pertain not to this general title.) |