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ARGUED AND DETERMINED
THE SUPREME COURT
NEW SOUTH WALES.
ᎪᎢ ᏞᎪᎳ .
Ex parte BECKETT (a).
MOTION to make absolute a rule nisi calling on certain magistrates of the Mudgee Bench, who had sentenced the applicant to six months imprisonment for threatening an assault, and at the same time ordered him to find sureties to keep the peace for six months, to shew cause why a hubeas corpus ad subjiciendum should not be issued to bring him before the Court. The other respondents were H. Bennett, the person threatened, and S. Bibb who had sworn the information. Of several grounds which were stated in support of the rule, the two following were mainly relied on, viz.--(1) That the information was bad, inasmuch as it was sworn by Bibb, between whom and Bennett it did not appear that there was any relationship; and (2), that the order of the magistrates was wrong in awarding Beckett six months imprisonment at the same time as he was ordered to find sureties, and before he had refused or failed to do so.
sureties and prisoner ordered to be forthwith discharged without issue of the writ, The information, having been sworn to by a person other than the one threatened, and who was no relation to him,
Held (per Hargrave, J-), and Semble (per Stephen, C.J., who did not think it necessary to decide the point), that no objection lay to the information on that ground
(a) Before Stephen, C. J., Hargrave, J., and Cheske, J. VOL. 11-A
Ex parte BECKETT.
Darley in support of the motion. There is no case which expressly decides that complaints for sureties of the peace cannot be sworn by a stranger to the person threatened; but the language of the text books clearly assumes the universal and invariable practice to be, that only the person who is put in fear by the threat can prefer and swear the information. The ancient form of the writ is given in Fitzherbert's Natura Brevium (a); and respecting it the author says, "this writ lieth where a man is in fear or doubt that another will assault him, and lieth properly where one man doth threaten another man to kill him, beat him, or assault him." To the same effect is the law laid down in Bac. Ab. Surety of the Peace (B) and (G). So in Oke's Magisterial Synopsis (b) it is said, "one justice, upon complaint on oath being made to him, that from threats, &c., used within his jurisdiction towards the complainant, he fears another person will do him, his wife or child, some personal injury, may issue his warrant or summons, if he thinks sureties ought to be given." The law considers an injury to a man's wife or child as an injury to himself, and therefore he can swear that he fears it; but, how can a third party know what effect a threat by one person against another may produce in the mind of the latter? The order is also bad, inasmuch as 66 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 so" per Pratt, C. J. See Bac. Ab. Surety of the Peace (G). It ought, at all events, to have been in the alternative-that is, that security should be given for a certain term, or imprisonment for that time, if such security should not in the meanwhile be found. The only object of the complaint is the preservation of the peace, and that is accomplished by getting sufficient security for it. The imprisonment is only awarded in default of the sureties being forthcoming; Oke's Magisterial Synopsis (c).
(a) p. 177, ed. 1677.
(c) pp. 1102-3, 8th ed.
(b) p. 1101, 8th ed.