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they shall be convict, as in forcible entry. Vide Justices of Peace, (B 9.) (i)
Any two justices in the county may make the conviction, though the two next justices only are bound to do it. Vide Dalt. c. 82.
(D 14.) When upon view. (k) The justices of peace, for execution of the st. 13 H. 4. 7. ought to go to the place where the riot is made, with the sheriff, &c. for the sheriff ought to join throughout the whole proceeding. R. Ray. 386.
And the justices, with the sheriff, may arrest all present, and take their arms. Vide Dalt. c. 82.
Though they came without intent to do mischief. Vide Dalt. c. 82.
And all riotously arrayed, whom they see in their way to the place, or back again. Vide Dalt. c. 82.
And may make fresh suit after any who escape. Vide Dalt. C. 82.
So the justices, with the sheriff, ought to make a record of every thing unlawful done in their presence. Kel. 41. a.
And fine and imprison the offenders. Vide Dalt. c. 82. (1)
And the sheriff ought to be a party to the record, if the conviction be before the rioters disperse. R. Šal. 593.
And ought to join in setting the fine upon the offender. R. Ray. 386.
The record ought to shew all the circumstances of the fact in certain.
It ought to make the conviction in the present, not the perfect tense 2 Mod. Ca. (m)
The fine shall be upon each offender severally. Vide Dalt. c. 82.
After the record made upon view, it shall be certified to B. R. assises, or sessions. Vide Dalt. c. 82,
And is not traversable. Vide Dalt. c. 82.
But justices of peace cannot deliver possession; for they can do no thing but punish and record the force. R. 1 Sid. 156.
And if they do, B. R. will make restitution. 1 Sid. 156.
So, if justices of peace proceed wrongfully, an information will go against them. R. 1 Sid. 156.
And their conviction, if it appears to be bad, may be quashed upon ·motion, without a writ of error. R. 1 Sid. 156.
(D 15.) By inquisition. By the st. 13 H. 4. 7. If a riot be, &c. And the offenders be departed before the justices come, they shall inquire of such riot within a month, and hear and determine it.
And the justices may inquire without the sheriff, where the rioters are dispersed. R. Sal. 593.
(°) Vide supra, (D 8.) (D 10.), in notis. (K) Id. Ibid.
1 1. The punishment for offences of the nature of riots, routs, or unlawful assemblies, at common law, is fine and imprisonment, in proportion to the circumstances of the offence. i Hawk. c. 65. s. 12. — 2. And formerly, in cases of great enormity, it appears that the offenders were sometimes punished with the pillory. Ibid. — 3. But such punishment is now, in such cases, taken away by 56 G. 3. f. 138. (m) Str. 443.
So they may inquire after the month: for they are only subject to a penalty, if they do it not in that time. R. Sal. 593.
An inquisition is sufficient, if it says, pro domino rege, without saying, pro domino rege, et corpore comitatús, as an inquisition taken by a grand inquest. R. Sal. 593.
Vide more of this, in Justices of Peace, (B 10,) (D 16.) By surety of the peace :- How granted :- Upon a
supplicavit. So a riot, or breach of the peace may be restrained, or prevented by sureties found for the peace,
If it appears to the chancery, upon complaint, that any, one has caụse to pray sureties for the peace against another, & supplicavit shall be directed to any justice of peace, or to the justiçes in general, or to the justices and sheriff, to take of him such sureties, or commit him to prison. F. N. B. 80. Reg. 88. Vide Chancery, (4 R.)
So a supplicavit lies from B. R. 1 Keb. 203. 290. Mo. 43.
And the sheriff may break open a house upon a capias to find sureties for good behaviour. R. Mo. 606.
If articles are sworn in chancery, upon which a supplicavit is granted, and by habeas corpus the party being brought to a judge of B. R. is, bound to appear in B. R. If the articles are transmitted from the chancery to B. R. or the witnesses appear, and charge him there; he shall be bound in B. R. otherwise note Skin, 61.,
A supplicavit shall not be granted, but upon affidavit, that it is not prayed of malice. F. N. B. 79. H.
And if it be for good behaviour also; articles ought to be exhibited. R. 2 Keb. 305. i Sid. 67. i Lev. 53.
It may be granted upon menace of corporal damage. Reg. 88. F. N. B. 79. G.
Or menace of burning his house. Reg. 88. F. N. B. 79. G.
Disturbance of divinę service, and carrying the minister to prison. R. 1 Keb. 290.
For dread of damage to him and his men, by such as have discord with him. Reg. 89. a.
(D 17.)How it shall be executed. The justice executes a supplicavit as minister: and therefore ought to pursue his writ strictly.
And the justices themselves to whom it is directed, or one of them, ought to execute it: for he cannot depute another. 2 Rol. 348.
Or, the party, or his friends for him, shall give surety in chancery, and have a supersedeas to the supplicavit. F. N. B. 81. A.
Or in B. R. when the supplicavit goes from thence. R. Mo. 43.
So, upon a certificate of the justices to whom directed, that the party who demands it is contentious, and the other of good fame, a supersedeas is usually granted.
After surety taken by recognizance for the peace, the justices ought to return the writ and recognizance. Lamb. 110. Vide Dalt. c. 122. If surety be given only for one of those against whom a supplicavit is B b 3
The justicerit strict. Gemselves not depu, shall . B. 81. R. Moibe party
granted; it ought to be returned, that the other non est inventus. 2 Rol. 348.
Or, that he who demands it released to himn. Lamb. 111.
If the justice does not return the writ or recognizance, a certiorari lies for them. F. N. B. 81. B.
Though the writ was not returnable in chancery. F. N. B. 81. . (D 18.) Upon a warrant of a justice of peace : – How it
shall be made. So a justice of peace, (n) by warrant, may bring any before him, upon good cause, (o) to find surety for the peace. Vide Dalt. c. 118.
Or may demand surety of any present, by parol. Vide Dalt. c. 118.
Or, command another, by parol, to arrest him being present, to find surety. Vide Dalt. c. 118.
A warrant by a justice of peace, to bring any before him to find surety for the peace, may be directed to the sheriff, to a constable, or other. officer, or to a stranger. Vide Dalt. c. 118.
It ought to be under his hand and seal, and to contain the cause. (p) Vide Imprisonment, (H 6, &c.) Vide Dalt. c. 118.
But a justice of peace cannot injoin another, that he shall keep the peace, under a penalty. (9)
(D 19.) How executed. If a warrant be directed to the sheriff, he may by parol, or precept, command any known officer to execute it. Vide Dalt, c. 169.
(n) 1. By the commission of the peace, justices of peace have power to cause to come before them, or any one of them, all those who to any of the king's people concerning their bodies, or the fixing of their houses, have used threats, to find sufficient security for 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, 5 Burn's Just. 284.
(o) 1. Articles exhibited must be verified by the oath of the exhibitant; an affirmation therefore is not sufficient. Str. 527. 12 Mod. 243. 5 Chetwynd's Burn, 287. — 2. Nor will the court permit the truth of the allegations to be controverted by. the defendant, but will order security to be taken immediately if no objections arise on the face of the articles. 2 Str. 1202, 13 East, 171. et in notis Chetwynd. Ibid. — 3. But where an application was made to the court to enforce the subsequent process, and the articles manifestly appeared, from the corroborated affidavit of the defendant, to contain a malicious, voluntary, and gross perjury, the court resisted the application and committed the offender. 2 Burr. 806. 3 Burr. 1922. Chetwynd Ibid. 4. Nor will the court receive articles of the peace if the parties live at a distance in the country, unless they have previously made application to a justice in the neighbourhood. 2 Burr. 780. Chetwynd Ibid. - 5. On an affidavit of the defendant's being seventy years of age, and unable to travel, a mandamus was granted to three justices in Brecon to take security on articles of the peace exhibited in the king's bench. 2 Str. 835. Chetwynd Ibid. — 6. And where articles of the peace were exhibited, and it appeared that the facts charged were done at Portsmouth, the court ordered an, indorsement to be made upon the attachment of the peace, authorising and directing any justice in that county to take the security there, specifying the particular sums, wherein the principals and also their sureties should be bound. 2 Burr. 1039. i Blk. 233. Chetwynd Ibid.
(p) But its validity does not depend upon the truth of the information whereon it is grounded. Foster, 135.
(9) Nor commit for not finding security, until the party has been required and refused so to do. i Hawk. C. 60, note to s. 9. of 7th edit. 5 Chetwynd's Burn, 286. vide infra, (D 19.)
- So, by precept, he may command any, who is not a known officer. Vide Dalt. c. 169.
But if it be directed to a constable, or a stranger, he ought to execute it himself; for he cannot make a deputy. Vide Dalt. c. 169.
If it be directed to two or more, either of them may execute it. Vide Dalt. c. 169.
The officer ought to require him to find surety, before he arrest him. Vide Execution, (C 12.) Vide Dalt. c. 118.
He ought to inform him at whose suit, and for what, it is demanded. R. 6 Co. 54. a.
And if he be not an officer known and sworn, he ought to shew his warrant. Vide Dalt. c. 169.
Otherwise, if he be an officer known and sworn. Vide Dalt. c. 169.
The officer, for executing his warrant, may take the posse comitatús. Vide Dalt. C. 172.
And break open a house, if necessary. Vide Dalt. c. 127, 169.
If a person be taken upon the warrant, the officer may commit him, without other warrant, if he refuses to come before a justice, or to find surety there. R. 5 Co. 59. b. (r)
So the justice may commit him if he does not find, or does not offer surety. (s) Vide Dalt. c. '171.(t)
And where the warrant is general, the officer may bring him to what justice he pleases. Vide Dalt. c. 169. 5 Co. 59. b.
(D 20.) A recognizance for the peace;-How taken. Though no statute directs that surety shall be taken for the peace, yet a recognizance seems the most congruous means for it: for none shall be bound to the king but by record; and by the st. 33 H. 8. 39. all obligations to the king shall be in his name, solvend domino regi. F. N. B. 82.
And therefore, justices usually take surety by recognizance for keeping the peace till the next sessions, against the king and all his people, and especially against him who demands it. (u)
(r) 1. 1 Hawk. C. 60. s. 12. Dalt, c. 118. - 2. But, says Dr. Burn, notwithstanding these great authorities, it may not be convenient for the justices to leave so much to the constable's judgment, as to determine what shall or shall not be deemed a refusal to find such sureties; for that the constable is constituted a judge in such case by no law. And much less doth it seem advisable to require in the warrant, as is usual, that the constable shall carry the party to gaol, if he shall refuse to find sufficient sureties; it doth not appear how the constable can any way be deemed a competent judge of that;. for it is certain that he cannot administer an oath to such sureties, or others, whereby to inform himself of such sufficiency. 5 Chetwynd's Burn, 289. - 3. And Mr. Chetwynd observes, that it is the best way, and now the usual practice, to direct the constable in the first instance, to take the party before the justice, who in case of refusal or neglect to find sureties, may commit him. Chetwynd Ibid.
(s) If he be present in person, he may be required by parol to find sureties, and committed for disobedience; but if he be absent, he cannot be committed without a warrant from some justice in order to find sureties, which warrant must be under seal, shewing the cause for which it was granted, and at whose suit. i Hawk. C. 60, s. 9. 5. 5 Chetwynd's Burn, 286.
(1) Supra, (D 18.) in notis.
(u) 1. Mr. Serjeant Hawkins says, that it seems to be the safest way, to bind the party to appear at the next sessions of the peacc, and, in the mean time, to keep the Bb 4
And by the st. 3 H. 7. 1. the justice ought to certify the recognizance at the next sessions; that if the party make default, it may be recorded, and certified, with the recognizance, into Chancery, B. R. or Exchequer.
And therefore, the next sessions is the proper place for the appearance of the party; though the recognizance does not mention before what justices, or in what court, or at what time, he ought to appear. Vide Dalt. c. 119.
So the recognizance may be for life, or for years, upon good cause. Vide Dalt. c. 119.
And if no time is mentioned, it shall be intended for life. Vide Dalt. c. 119. 21 Ed. 4. 40. b. . But the time and sum in which he is to be bound, and the number and sufficiency of the sureties, are in the discretion of the justices. Vide Dalt. c. 119.
So a recognizance to keep the peace, generally, is good, without say. ing against A. in particular: or, to keep it against Ă. without saying, against all in general. Vide Dalt. c. 119.
So a recognizance to be levied of goods only, or of lands only, is good : for, only, shall be rejected, and the recognizance shall be general. Vide Dalt. c, 119.
If the sureties prove insufficient, he shall be compelled to find new sureties by recognizance. Vide Dalt. c. 119.
So, if the recognizance be forfeited. Vide Dalt. c. 115.
Otherwise, if a surety dies: for his executor shall be charged, 21 Ed. 4. 40. b. Vide Dalt. c. 119.
So a justice of peace may take money in deposito for surety of the peace. Per Berkly, Cro. Car. 446. Vide Dalt. c. 119.
But a recognizance, which does not mention the preservation of the peace, will be void. Vide Dalt. c. 119. . Though it be, that he do not assault, maim, &c. for there are other breaches of the peace. Vide Dalt. c. 119. (x)
(D 21.) Of whom surety of the peace may be demanded.
Surety of the peace may be demanded against every one under the degree of a peer. Vide Dalt. c. 117.
peace as to the king and all his liege people, especially as to the party, according to the common form of precedents. i Hawk. c. 60, S. 16. — 2. But notwithstanding this authority, says Mr. Chetwynd, in a recent case it has been determined by the Court of King's Bench, that a justice of the peace is authorised to require surety of the peace for a limited time, (e. g. two years), according to his discretion, and that he need not bind the party over to the next sessions only. 2 B. &. A. 278. 5 Chetwynd's Burn, 291.-3. But, continues Mr. Chetwynd, if a recognizance to appear at the sessions be taken, and an order of court for finding sureties applied for, articles of the peace must be exhibited. Chetwynd Ibid. - 4. The practice, he observes, referred to in a for, mer edition of Burn, 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, he conceives to be incorrect; and he refers analogically, to what Mr. Justice Ashhurst says, in 1 T. R. 696. Chetwynd Ibid.
(x) 1. It is said, that the fear of one cannot be the fear of another, and therefore that every recognizance must be separate. Dalt. 18. 5 Chetwynd's Burn, 286. – 2. But in M. 23 Geo. the Court of K. B. allowed three women to file joint articles of the peace against three men. i Hawk. c. 60. note to s. 5. of 7th edit. 5 Chetwynd's · Burn, 286,