esquire, in order to the plaintiff's finding surety towards the king and all his subjects, and in particular towards James Martin Lloyd. That on hearing the complaint, the defendant required the plaintiff to find surety for keeping the peace for two years, himself in 500%., and two sureties in 2501. each. That the plaintiff then offered to enter into the security required of him for 500l., and had one surety ready to join him in the sum required, namely 250l.; but not being. provided with a second surety in that sum, he was, on the 2d day of October, committed to the custody of the high constable, by another warrant, signed by the defendant, to the tenor and effect following: "Sussex, to wit. To the constable of the hundred of Brightford, in the said county, and to the keeper of the house of correction at Petworth, in the said county: whereas William Willes, of Lancing, in the said county, yeoman, is now brought before me, Henry Bridger, esq., one of the justices of our lord the king, assigned to keep the peace in and for the said county, requiring him to find sufficient sureties to be bound with him, in a recognizance for his keeping the peace towards our said lord the king, and all his liege prople, and especially towards James Martin Lloyd, of Lancing, esq., one other of the justices of our lord the king, assigned to keep the peace, in and for the said county; and whereas he the said William Willes hath refused, and doth now refuse to find such sureties before me: these are, therefore, in the name of our said lord the king, to command you, the said constable, forthwith to convey the said William Willes to the house of correction at Petworth, in the said county, and to deliver him to the keeper thereof together with this precept;

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1819.

WILLES

against BRIDGER

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WILLES against BRIDGER

cept; and I do, in the name of our said lord the king, hereby command you, the said keeper, to receive the said William Willes into your custody, in the said house of correction; and him there safely to keep for the space

of two years, unless he shall, in the mean time, find such sureties as aforesaid, for his keeping the peace towards our said lord the king, and all his liege people, and especially towards the said James Martin Lloyd, for the space of two years from the date hereof. On the following day, the plaintiff having been conveyed in custody as aforesaid to Arundel, in the same county, on the way to the said house of correction at Petworth, was admitted to bail by several justices of the peace for the said county, and entered into a recognizance before the said justices, according to the exigency of the said warrant, himself in 500%., and two sureties in 250%. each respectively, for keeping the peace towards the king and all his liege people, and especially towards the said James Martin Lloyd, for the space of two years from the date of the said warrant. The jury found a verdict for the plaintiff for 40s., the learned judge reserving for the opinion of this Court the legality of the warrant, under which the plaintiff was committed. Upon motion, this Court ordered that a case should be stated for their opinion, upon two points: first, whether the warrant of commitment was legal; and, secondly, whether the action would lie against the defendant, being a justice of the peace, under the circumstances above stated.

Knowlys, for the plaintiff. The warrant of commitment was in this case illegal, inasmuch as a justice of the peace has no authority to bind over a party to keep the peace for a time certain, but only to the next ses

sions. Hawkins, it is true, lays it down (although
doubtfully) that he may do so. (a) For he says. "If it
be taken in pursuance of a writ of supplicavit, it must
be wholly governed by the directions of such writ; but
if it be taken before a justice of peace, upon a complaint
below, it seems that it may be regulated by the dis-
cretion of such justice, both as to the number and suf-
ficiency of the sureties, and the largeness of the sum,
and the continuance of the time for which the party
shall be bound," and for this he quotes the authority
of Lambard and Dalton. But it is observable, that
Hawkins himself, s. 16., immediately adds, "However,
it seems to be the safest way to bind the party to ap-
pear at the next sessions of the peace;" and in s. 18.
he says;
"that if it be taken on a complaint below, it
must be certified to the next sessions of the peace, by
force of 3 Hen. 7. c. 1., that the party so bound may
be called; and if he make default, it shall be recorded,
and the recognizance certified into one of the courts at
Westminster." It is clear, therefore, at all events, that
the defendant has here deviated from the safer and
better way. But the authorities quoted by Hawkins by
no means support the proposition laid down by him.
Lambard, in his Eirenarcha, lib. 1. c. 16. (b), lays it
down, that a justice of the peace may command surety,
either as a minister, where he acts under a writ of
supplicavit, or as a judge by virtue of his commission.
And the conclusion of the warrant in both these cases
is precisely the same; "that if the party refuses to
give surety, then he shall be committed to gaol, until
he do so, that he may be before the justices of the

1819.

WILLES

against BRIDGER.

(a) Book 1. c. 60. s. 15.

(b) P. 83. edit. 1582.

peace

1819.

WILLES

against BRIDGER.

peace at the next sessions, there to answer for his
contempt, &c." The passage referred to by Hawkins,
will be found p. 109., and is as follows:
"If the jus-
tice of the peace deal in this matter as a judge, and by
virtue of his commission, then the number of the sure-
ties, the sum of their bond, their sufficiency in goods
or lands, the time how long the party shall be bound,
and such other circumstances, are referred wholly to
his own consideration." And for this he quotes the au-
thority of Marrow, a Master in Chancery, who wrote
on this subject, in the 18 Hen. 7., and the MS. of
whose work is said to be still preserved in Lincoln's Inn
library. Dalton (a), in his Country Justice, says, "that a
justice may take a recognizance, and bind the party to
keep the peace for one year, or for a longer time by
his discretion; yea, he may bind the party during his
life;" and for this he quotes Marrow's sixth reading.
In fact, the whole of this law rests upon Marrow's sole
authority. Now Marrow's authority is much weakened
by several passages, where Lambard differs from him.
These will be found in Eirenarcha, pp. 93. 99. 113. In
the two former of these passages, he points out some
great mistakes of Marrow's on this subject; and in the
last, he says, "but for the better eschewing of error
and hard dealing in making this recognizance of the
peace, it is good to use the received form, which is
thus," and he then subjoins the form of a recognizance,
binding the party over to appear at the next sessions,
there to do what the Court then shall award. So that
from this, it clearly appears, that the opinion of Lam-
bard was, that the power was so limited. Dalton also,

after stating Marrow's opinion, afterwards adverts to
the 3 Hen. 7. c. 1., and says, "whereby it may seem
that every recognizance taken for the peace now ought
to be to appear at the next sessions." Now, if the law
were as contended for by the defendant, for what pur-
pose could the justice, in compliance with the 3 Hen. 7.
c. 1., certify the recognizance, or how could the party
be called on it, and his default recorded; for he would
be in custody under the warrant committing him for a
specific time, and so could not appear. This shews,
therefore, strongly, that such a warrant is illegal; be-
sides, the surety for the peace, and that for good
behaviour, are by Lambard and Dalton put on the
same foundation. And with respect to the latter, Lord
Hale says (a), "the statute 34 Edw. 3. c. 1. gave the
justices power to apprehend malefactors, and to commit
them to custody, or to bind them to their good be-
haviour, which was not intended perpetual, but in
nature of bail, to appear at such a day, at their ses-
sions; and in the mean time to be of good behaviour."
Crompton (b) lays it down, that a justice may bind over
to keep the peace, and to appear at the next general
sesssions. Pulton (c) also is to the same effect. And
in all these books, there is a uniform course of pre-
cedents to be found, setting out, that the party bound
shall appear at the next sessions. Then, if the reason
of the thing be considered, it will appear that Marrow's
authority is not entitled to much weight. For he says
"that a justice may bind for life" So that the bill of
rights, which said that excessive bail should not be re-
quired, would be infringed by this. For bail may be

(a) Vol. 2. p. 136. c. 16. (c) P. 18. a. edit. 1610.

(b) P. 138. b. edit. 1606.

1819.

WILLES

against BRIDGER.

excessive