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 safely kept, until they shall find such security."

Fear of Corporal Hurt, or Burning the House of Applicant.]—It seems clear that wherever a person has just cause to fear that another will burn his house, or do him a corporal hurt, or that he will procure others to do so, he may demand the surety of the peace against such person, and that every justice of the peace is bound to grant it, upon the party's giving him satisfaction upon oath that he is actually under such fear, and that he has just cause to be so, and that he does not require it out of malice or vexation (c).

Threats of Imprisonment.]-It also seems that he who is threatened to be imprisoned by another has a right to demand the surety of the peace; for every unlawful imprisonment is an assault and wrong to the person of a man. And the objection that one wrongfully imprisoned may recover damages in an action, and therefore needs not the surety of the peace, is as strong in the case of battery, as in that of imprisonment; and yet there is no doubt, but that one threatened to be beaten may demand the surety of the peace (d).

Where demanded through Malice or Vexation.]—But if the justice shall perceive that surety is demanded merely of malice, or for vexation only, without any just cause of fear, it seems he may safely deny it; here, however, the justice shall do well to persuade him, and to show him the danger of his oath which he is to take; but yet if he will not be persuaded, but will take his oath that he is in fear, where indeed he neither doth fear, nor hath cause to fear, this oath shall discharge the justice, and the fault shall remain on such complainant.

If a man require the peace, merely because he is at variance or in suit with his neighbour, it shall not be granted (e).

But this fact must appear directly from the declarations of the party, for otherwise the justice, collecting such motives inferentially, will take on himself a responsibility not justified by the cases just cited.

Wife, Child, Servants, Goods, or Cattle.]-All the authorities agree that fear lest another will hurt a man's servants, or his cattle, or goods,

(c) Hawk. B. 1, c. 60, s. 6. See Reg. v. Dunn, 12 Ad. & E. 599.

(d) Id. s. 7; R. v..
(e) Dalt. c. 116.

Mendez, Stra. 473.

is not sufficient ground for requiring surety of the peace. But it is otherwise as to his wife or child, for he may crave the peace for their protection at the justice's hands, by the words of the commission, and the justice ought to grant it (ƒ).

If the children be under the age of discretion, there can be no doubt respecting the parent's claim on the authority of the justice for protection, on his (the father's) oath.

There must be a Fear of Present or Future Danger.]-The surety of the peace shall not be granted but where there is a fear of some present or future danger (g), and not for any breach of the peace that is past; for his surety of the peace is only for the security of such as are in fear: but the party wronged may punish the offender by indictment; and the justice may bind over the affrayer to answer unto the indictment.

They may be demanded by any Person.]-It seems to be agreed that all persons whatsoever, under the queen's protection, being of sane memory, whether they be natural and good subjects, or aliens, or excommunicate, or attainted of treason, have a right to demand surety of the peace. And it is certain a wife may demand it against her husband, and that a husband also may have it against his wife (h). And there is no doubt but it ought, upon cause of complaint, to be granted by any justice of the peace, against any person whomsoever, under the degree of nobility, whether he be a magistrate or private person, and whether he be of full age or under age. But infants and femes coverts ought to find security by their friends, and not to be bound themselves. And the safest way of proceeding against a peer, is by complaint to the court of chancery or queen's bench (i).

Practice of Sessions as to Continuance of Binding.]-The usual practice of courts of quarter session, we have seen, is to continue a recognizance for keeping the peace, from session to session, until it be discharged by order of the court (k). any such period, for they may require

(f) Dalt. chap. 116.

(g) See Dunn's case, Q. B. 9 Nov. 1840, acc.

(h) Sims's case, Stra. 1207; ex necessitate rei, as the act may be done at a time when no one else can prove and know it, per Proby, J., Rep. t. Hardw. 83.

But the court is not confined to bail for life if they think it neces

(i) Hawk. B. 1, c. 60, s. 2, 3, 4, & 5; 4 Bla. Com. 254; 21 J. I. c. 8, s. 2.

(*) The Q. B. continues it for twelve months, and then discharges it if no indictment is preferred in that time, R. v. Lewis, 2 Stra. 835; Baynum v. Baynum, Ambler, 64; see Clavering's case, 2 P. & W. 202, like practice on supplicavit.

R

sary for the preservation of the peace (1) or generally without any time or day limited; in which case the recognizance cannot be discharged during the life of the party so bound, by release or otherwise (m), except in case of the previous demise of the crown (n).

Pardon.]-After the condition of a recognizance for keeping the peace is broken, the king may pardon the forfeiture; but the king cannot release the condition before it is broken; because the person upon whose complaint the recognizance was entered into, has a kind of interest in the condition (o).

Application for Recognizance may be originally to the Justices in Session.-Amount of Security.]-The demand of a recognizance for surety of the peace has been treated of as being first made before a single justice, and continued by articles exhibited before the justices in session. It must not be understood, however, to come before the latter in the manner of an appeal from the former, for there is no reason why an original application should not be made to the justices in session, if the party complaining consider such application sufficiently early for its protection. In that case, a warrant must of course proceed from the bench, against the offender; but the recognizances, both for the immediate preservation of the peace, and for its future appearance at the next session, may be taken before a single justice, if not apprehended before the adjournment, or termination, of the court.

The court of queen's bench rejected articles of the peace which a person residing in a distant part offered to swear against a person resident in the same place, saying, "he might have gone before a justice of the neighbourhood and claimed the security of the peace there" (p). If the justice is averse to act, he may be compelled to do so as a ministerial officer, by writ of supplicavit issued out of the queen's bench or chancery; but that writ is seldom used, for the recognizances are generally taken by the superior court itself when applied to (q).

The amount of security to be found by the defendant for preserving the peace, is in the discretion of the court, or the single magistrate. An application to the superior court to reduce it, when fixed by the latter, has been refused (r), on the ground that the court could not

(1) R. v. Bowes, 1 T. R. 696. (m) Lambard, 113, but death discharges it, 1 Hawk. c. 60, s. 15. (n) Id. s. 17; 4 Bla. Com. 254. (0) 1 Hawk. c. 60, s. 17.

(p) R. v. Waite, 2 Burr. R. 780.
(g) 4 Bla. Com. 253.
(r) R. v.

525.

Holloway, 2 Dowl. P. C.

interfere with the exercise of his discretion, if he has proceeded on a sufficient information on oath (s). It is for him, before he calls on a party to enter into recognizances to keep the peace, to judge in what sense the language alleged to be threatening is used; and the court will not discharge recognizances to keep the peace on the ground that such words were used by way of metaphor, and not literally (t).

If the warrant for apprehending the offender be issued, in the first instance, by the justices in session assembled, it should be in the following form, or to the like effect, in the name of the queen, but under the teste of the chairman, and one, or more, of the other justices.

Bench Warrant.]—County of - to wit. Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith and so forth; to our sheriff of our county of ——, the high constable of the hundred of the petty constables of the town of and to all and singular our bailiffs and other ministers in the said county of -, greeting. Forasmuch as P. O. of in the said county, yeoman, hath personally come before A. B. and other our justices assigned to keep the peace within the county aforesaid, and also to hear and determine divers felonies, trespasses, and other misdemeanours in the said county committed, and hath taken a corporal oath that the said P. O. is afraid that D. D. of -- in the said county, yeoman, will beat [wound, maim, or kill] him, [or burn his house] and hath prayed surety of the peace [or of the good behaviour, if it be so] against him the said D. D. Therefore we command and charge you, jointly and severally, that immediately upon receipt hereof, you omit not, by reason of any liberty within the county aforesaid, but that you take the aforesaid D. D. if he can be found in the county aforesaid, and bring him before the said A. B. and other our justices so as aforesaid assigned to keep the peace within our county aforesaid, if they shall then be sitting; and if not, then before some one or more of our said justices in and for our county aforesaid, to find sufficient surety and mainprize, as well for his personal appearance at the next general quarter session of our peace, to be holden at or elsewhere, in and for the said county, as also for our peace in the mean time to be kept towards us and all our liege people; and more especially towards the said P. O.; that is to say, that he the said D. D. shall not do, nor by any means procure or cause to be done, any of the said evils to any of our said people, and particularly to the said P. O. [or, if it is for the good behaviour as also for his good behaviour, in the mean time, towards us and all our liege people; and more especially towards him the said P. O. &c.]

Certifying Recognizance to next Sessions.-Default to Appear.]— Every justice taking a recognizance for keeping the peace, shall certify the same at the next session, that the party bound may be called there. If he make default, the default shall be there recorded, and the recognizance, with the record of the default, shall be sent and

(8) R. v. Tregarthen, 5 B. & Ad. (t) Per Cur. ibid.

680. Per J. Parke, J.

certified into the chancery, or before the king in his bench, or into the king's exchequer (u). If the party have any good excuse, such as sickness, imprisonment, inundation of waters, snow storm, &c. 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 (x). This doctrine has, indeed, been doubted, but general practice is conformable with the position; and as the recognizance may be taken by a single justice at any time, so soon as the offender is able to attend, a respite of proceedings by the session, till that opportunity arrives, seems only consistent with justice; nor does this exercise of their discretion appear affected by 7 G. IV. c. 64, s. 31 (y).

Recognizances how and when may be Forfeited.]-There is no doubt that the recognizances taken 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 (≈). And even by threatening to do any act of violence against another in his presence; and it is said, in his absence also, if accompanied by lying in wait to execute it (a); but not by mere words of anger or abuse (b).

And the justices cannot in any case proceed against the party for a forfeiture of his recognizance, either in respect of his not appearing, or of his breaking the peace; but the recognizance itself, with the record, on default of appearance, ought to be removed into some of the courts at Westminster, who shall proceed by scire facias upon such recognizance, and not by indictment (c). And so it ought to be, if it be presented by the jury, or grand inquest, that the party hath forfeited his recognizance by breach of the peace (d). Even where a party so bound is subsequently convicted at petty sessions of an assault, and the conviction is returned to the quarter sessions, the justices there cannot order an estreat of the recognizance under 3 G. IV. c. 46, (post, Chap. XIII. sect. 7,) and the proceeding must be by scire facias, as before that statute (e).

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