What is deemed no forfeiture.

What shall be a forfeiture.

Case of sickness.

Actual violence.

Threatening words.

An actual assault in some cases

does not amount to a forfeiture.

IX. How Recognizance may be forfeited.

There are divers things which may be done against the peace and diver offences for which an indictment against the peace will lie, and yet the com mitting 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 recogni zance must be done or intended unto the person as is aforesaid, or in teme 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 withes. public terror; or to do a tresspass in another man's corn or grass, or to take away another man's goods wrongfully, so it be not from his person ; or te steal another man's horse, or other goods feloniously, being not from his per son all these, and the like, are breaches of the peace, and yet these wil 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 appearance. and the same default shall be recorded. (3 Hen. VII. c. 1.)

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, s. 18.)

And Mr. Dalton says, in case of the sickness of the party, so that he cannot appear, he has known that the justices, upon due 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 ses sions; for that the principal intent of the recognizance was but the preser vation of the peace. But he queries how this is warrantable by their cath. (Dalt. c. 120.)

Also, there is no doubt but that it 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 imprisament, and the like. (1 Haw. c. 60, s. 20.)

Also, it hath been holden, that it may be forfeited by any treason against the king's person, and also by any unlawful assembly in terrorem populi, and even by words directly tending to a breach of the peace, as by challenging one to fight, or in his presence threatening to beat him. (1 Haw. c. 60, s. 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 wat for him to kill or beat him, this is a forfeiture of the recognizance. (Dat c. 121.)

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 recog nizance 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, s. 22.)

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 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 ha band 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 11. How rethrowing at him a dangerous weapon,) who wrongfully endeavours with cognizance may violence to dispossess him of his lands or goods, or the goods of another be discharged. delivered to him to be kept, and will not desist upon his laying his hands gently on him, and disturbing him; or if a man beat, or (as some say) wound or maim one who makes an assault upon his person or that of his wife, parent, child, or master, especially if it appear that he did all he could to avoid fighting before he gave the wound; or if a man fight with or beat one who attempts to kill any stranger; or if a man even threaten to kill one who puts him in fear of death, in such a place where he cannot safely fly from him; or if one imprison those whom he sees fighting, till the heat is over. (1 Haw. c. 60, s. 23, 24.)

X. How the Recognizance, being forfeited, shall be proceeded on.

Before the 3 Geo. IV. c. 46, it was said, that the sessions could not in any How forfeited reease proceed against the party for a forfeiture of his recognizance, either in cognizance prorespect of his not appearing, or breaking the peace; but that the recogni- ceeded on. zance itself, with the record of default of appearance, ought to be removed into some of the courts at Westminster, who should proceed by scire facias upon such recognizance; and so it ought to have been before that act, if it be presented by the jury or grand inquest that the party had forfeited his recognizance by breach of the peace. (1 Haw. c. 60, s. 18; Dalt. c. 70.) But see now the 3 Geo. IV. c. 46; ante, title "Fines and Forfeited Recognizances,” Vol. II. p. 842.

This writ of certiorari is obtained on laying an affidavit of the circumstances before a judge at chambers, who will grant a fiat for the writ to issue; when the writ has been served and the recognizance is returned, a writ of scire facias is sued out at the Crown Office, stating the recognizance and suggesting the breach of it. This is delivered to the sheriff of the county in which the defendant resides, and he gives notice of it to the defendant, who must enter an appearance at the Crown Office, and plead any matter in defence; and on this issue is joined, and that issue tried in the same way as any other issue joined in the Crown Office, except that no proclamation is made at the trial, there being no crime to be tried. If the jury find the recognizance has been forfeited, they find a verdict for the crown, and judgment is entered up, and a fi. fa. or ca. sa. issued out of the Crown Office for the amount of the recognizance; but if to these writs there be a return of nihil or non est, or if the prosecutor take no steps on the judgment so signed, the recognizance is estreated into the Exchequer by the master of the Crown Office, in the same way as the recognizance forfeited by the non-appearance of a party to receive judgment; and process issues from the Exchequer. (R. v. Wiblin, 2 C. §. P. 11, n.)

XI. How Recognizance may be discharged.

He who is bound to the peace, and to appear at a certain day, must appear Discharged on at that day and record his appearance, although he who craved the peace appearance. cometh not to desire that it may be continued; otherwise the recognizance cannot be discharged. (Dalt. c. 120.)

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.)

But it seems to be agreed, that it may be discharged by the death or de- By the death of

the king.

mise of the king in whose reign it was taken, or of the principal party who misbehaviour it was bound thereby, if it were not forfeited before. (1 Haw. c. 60, s. 17.)

1. For what

is to be required.

Or the release of the party.

How pardoned by the king.

May be discharged

the sessions.

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 discharge it. (Id) It is certain that such a recognizance cannot be pardoned or released by the king before it be broken, because the subject hath a kind of interest in it: but being forfeited, then the king, and no other, may release and pardon the forfeiture. (Id.)

And it is said that the sureties are not discharged by their death, but the their executors continue to be bound as their testators were. (1 Haw. c. 60, s. 17; Dalt. c. 120.)

And if a man be bound to keep the peace towards the king and all his or continued by people, but not towards any person certain, and to appear at such a sessions, the court at that sessions may make proclamation, that if any man can show 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 ta show 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. Sed vide ante, p. 899.)

Party demanding

sureties dying.

Forms as to.

Likewise, if the party be imprisoned for default of sureties, and after he that demandeth the peace against him happen to die, it seemeth the justice may make his liberate or warrant for the delivery 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.)

See forms, post, 915.

Good behaviour

includeth the peace.

For what misbe

Surety for the Good Behaviour. A MAN may be compelled to find sureties both for the good 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.)

This surety for the good behaviour being of near affinity to surely 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:

1. For what Misbehaviour it is to be required, p. 906. II. For what it shall be forfeited, p. 914.

I. For what Misbehaviour it is to be required.

It doth not appear that the conservators of the peace at common law had haviour it is to be 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

required.

relation thereto, doth solely depend upon the commission of the peace, and 1. For what the statute of the 34 Edw. III. c. 1. (Except in some special instances, misbehaviour it wherein the power of binding to the good behaviour is given to them by particular statutes, which pertain not to this general title.)

is to be re

quired.

The words in the commission are these: "We have assigned you jointly Power given to and severally, and every one of you, our justices, to keep our peace, and to justices by the cause to come before you, or any one of you, all those who to any one or commission. more of our people concerning their bodies, or the firing their houses, have used threats; to find sufficient security for the peace or their good behaviour towards us and our people; and if they shall refuse to find such security, then them in our prisons, until they shall find such security, to cause to be safely kept."

statute.

The 34 Edw. III. c. 1, as to this matter, runs thus: "In every county 34 Edw. 3, c. 1. shall be assigned for the keeping of the peace one lord, and with him three Power given by or four of the most worthy in the county, with some learned in the law; and they shall have power to restrain the offenders, rioters, and all other barrators, and to pursue, arrest, take, and chastise them according to their trespass or offence; and to cause them to be imprisoned and duly punished according to the law and customs of the realm, and according to that which to them shall seem best to do by their discretions and good advisement; and also to inform them, and to inquire of all those that have been pillors and robbers in the parts beyond the sea, and be now come again, and go wandering, and will not labour as they were wont in times past; and to take and arrest all those that they may find, by indictment, or by suspicion, and to put them in prison; and to take of all them that be not of good fame, where they shall be found, sufficient surety and mainprize of their good behaviour towards the king and his people, and the other duly to punish, to the intent that the people be not by such rioters or rebels troubled nor endangered, nor the peace blemished, nor merchants nor others passing by the highways of the realm disturbed, nor put in the peril which may happen of such offenders."

This statute seems to have had in view chiefly the disorders to which the country was then liable, from great numbers of disbanded soldiers, who having served abroad in the wars of that victorious king, were grown strangers to industry, and were rather inclined to live upon rapine and spoil. (Barl. 524.)

But whatever the natural and obvious sense of it may be when compared with the history and circumstances of those times, it is certain that it hath been carried much further by construction, and the purport of it hath been extended by degrees, until at length there is scarcely any other statute which hath received such a largeness of interpretation.

And that I may proceed with clearness in a matter so essential to the Observations of office of a justice of the peace, I will set down the several expositions which learned men on have been given of this statute from time to time by learned men, and then the subject. raise such observations thereupon as the subject will naturally suggest.

The first unfolding of the sense of this statute which has occurred, was in surety of good the case of Sir Richard Croftes and Sir Richard Corbet, in the second year behaviour relates of the reign of king Henry VII., wherein it was resolved by all the judges, to matters confor that purpose assembled, that he who is bound to the good behaviour cerning the peace. ought not to do anything which shall be cause of breach of the peace, or to put the people in fear, dread, or trouble: and so shall be intended of all things which concern the peace: but not in misdoing of other things which touch not the peace. Yet a diversity was observed between a breach of the peace and a breach of the good behaviour, for the peace is not broken without an affray or battery, but the good behaviour may be forfeited by the number of people a man has, and by their harness, or weapons, and the like, although they break not the peace. (2 Hen. VII. c. 2.)

The second instance, and upon which much stress hath been laid, was in May be had of the 13th year of the same king. In trespass of assault, battery, and impri- persons frequentsonment at D., the defendant saith that one Alice B. had a house in the ing bawdy houses. same town, and kept there suspicious people, to wit, of common bawdry, and that the plaintiff oftentimes resorted to the same house suspiciously with

1. For what

is to be re

quired.

women of bad fame and name, whereby the coustable of the same town misbehaviour it required the defendant to aid him to arrest the plaintiff, to find surety of his good behaviour; whereby the defendant came with the said constable at the hour of twelve in the night, and him found suspiciously in the same place; whereupon he took him and put him in ward; and it was holden by all the justices to be a good justification; for they said, that it is lawful for every constable to take suspected persons, which wake in the night and sleep in the day, or that keep suspicious company. (13 Hen. VII. c. 10.)

Opinion of Fitz

be taken by one justice only.

Abusive words and

not a breach of recognizance.

In the next place, Sir Anthony Fitzherbert, who lived in the reign of king herbert that it may Henry VIII., saith, that it seemeth that one justice may, by the commission, issue a warrant against a person to find surety of the good behaviour, by his discretion, as well as two justices may: and the words of the statute of the 34 Edw. III. are to the same effect. Otherwise, he says, damage may hap pen to some of the king's subjects, if the party be not attached, before that two justices have made the precept; yet, he says, the common usage is, to make such precept of the good behaviour in the name of two justices, and it is good to observe this direction. (Fitz. 7; see Cromp. 122, 126, and post 912) In the next place, it is proper to take notice of a case adjudged in the common trespass Court of King's Bench, in the 30th of queen Elizabeth, reported by la Coke, 4 Inst. 181, which was thus:-At the sessions at Bridgewater, in the county of Somerset, one William King with sureties was bound by recognizance to appear at the next general sessions of the peace in the same county. and in the mean time to be of the good behaviour towards the queen and all her people. And after, at the next sessions, William King appeared, and was indicted for slanderous words spoken since his binding, to wit, for saying at one time to Edward Kyrton, Esq., " Thou art a pelter, thou art a liar, and hast told my lord lies." And he was further indicted, that since the said recognizance, “the close of one John Wick with force and arms he broke and entered, and the cattle of the said John depasturing in the said close unlawfully rexed and chased.” And afterwards, at another time, he said to the said Kyrton, "Thou art a drunken knave." Which indictment was removed into the King's Bench. And hereupon it was debated divers times, both at the bar and the bench, whether, admitting all that is contained in the indictment to be true, anything therein was, in judgment of law, 1 breach of the said recognizance. And it was resolved, that neither any of the words, nor the trespass, were any breach of the good behaviour, for that none of them did tend immediately to the breach of the peace; for though the said words," Thou art a liar, thou art a drunken knave," are provocations, yet they tend not immediately to the breach of the peace; as if William King had challenged Kyrton to fight with him, or had threatened to beat or wound him, or the like; these tend immediately to the breach of the peace, and are therefore breaches of the recognizance of the good behaviour. And this diversity (Ld. Coke says) was justly collected upon the coherence and context of the statute of the 34 Edw. III., whereby justices are assigned for keeping the peace, and to restrain the offenders, rioters, and all other barrators, and to chastise them according to their trespass and offence; and ta inquire of pillors and robbers in the parts beyond the seas, and be now come again, and go wandering, and will not labour. And thus much for the punishment of offences against the peace after they be done. Then followeth an ex press authority given to justices, for prevention of such offences before they be done, namely," and take of all them that be not of good fame” (that is, that be defamed and justly suspected that they intend to break the peace), e they shall be found, sufficient surety and mainprize of their good behaviou towards the king and his people" (which must concern the king's peace, is also provided by the words subsequent), " to the intent that the people be not by such rioters troubled or endamaged, nor the peace blemished, nor me chants nor others passing by the highways disturbed, nor put in peril that may happen of such offenders." And as for the trespass: although every wrong ful trespass is by force and arms, and against the peace, yet these are taken to be such as shall make a breach of the good behaviour.

Opinion of Lambard.

After this, Mr. Lambard, who wrote towards the beginning of the reign of