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If the justice shall perceive that surety is demanded merely for malice or vexation only, without any just cause or fear, it seemeth he may safely deny it; as in common experiance we find it that, when a person shall, upon just cause, come and crave the peace against another and hath it granted to him, when such other person shall come before the justice, he likewise shall crave the peace against the former, and will, perhaps, surmise some cause ; but yet, nevertheless, be content to surcease his suit and demand, so as the other will relinquish to have the peace against him. Here the justice will do well not to be too forward in granting the peace thus required by the latter, but 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. Dalt. Justice, 382.
And, if a man will require the peace because he is at variance or in suit with his neighbor, it shall not be granted. Dalt. Justice, 382.
Mr. Dalton says, if one person threatens to hurt the wife or child of another, who craves the peace at the justice's hands, he sees
no cause why it ought not to be granted. Dalt. Justice, 382. But security of the peace ought not to be granted because one person threatens to hurt the servant of another; and the reason seems to be, because it should be the servant's fear, in such case, and not the master's, and the servant's own oath before the justice is necessary. 4 Burn's Justice, 268.
The surety of the peace should not be granted but where there is a fear of some present or future danger, and not merely for a battery or trespass that is past, or for any breach of the peace that is past, for this surety of the peace is only for the security of such as are in fear; but the party wronged may bring his action, or punish the offender by indictment, and the justice, if he see cause, may bind over the offender to answer unto the indictment. 4 Burn's Justice, 268.
And, if one person should threaten to beat another or otherwise injure his person, and, at the same time, says, “but your age protects you,” it would seem that the justice should not grant the peace.
Surety of the peace should be craved soon after the cause of the fear on account of which it is craved, for the suffering of much time to pass before it is craved, shows that the party craving it has not been under great fear. 6 Mod., 132
2. Al whose request and against whom it shall be granted.
All persons whatsoever, being of sane memory, whether citizens or aliens, or attainted of treason, &c., have a right to demand surety of the peace; and a wife may demand it against her husband threatening to beat her outrageously, or to kill her. 6 Bac. Ab., 429.
If her husband, by ill usage or threats, place her life or person in danger, she may obtain sureties to keep the peace ; i Jac. & Walk., 438; and she may even subject her husband to the payment of an attorney's bill in enforcing such sureties against him, the same being considered necessary. 3 Camp., 326. 1 P. Wms., 482. And a husband may, also, demand surety for the peace against his wife, if necessary. 4 Bl. Com., 454.
Surety of the peace may be granted against any person whatsoever being of sane memory, whether he be a magistrate or private person, and whether he be of full age or under age. But infants and feme coverts ought to find surety by their friends, and not be bound themselves. 1 Hawk., 127.
3. In whul manner it shall be granted.
The justice may command this surety of the peace either by word only or by writing.
1. By word only. Justices of the peace have full power to enforce, or cause to be enforced, all laws that now exist or shall hereafter be made for the preservation and observance of the peace. Gale's Stat., 237.
If one man doth threaten another, in the presence and hearing of a justice, or shall make an affray or assault upon another, or do the like thing tending to the breach of the peace, the justice may command him by word to find sureties of the peace. Dalt. Justice. 5, 387. Breese's Rep., 165.
In many cases, the justice of the peace ought, of duty, or, at least, in good discretion, to command the surety for the peace, although the same be not required by any other person. Dalt. Justice, 381.
If any person shall demand this surety against another who is then in the presence of the justice, and will be sworn that he is afraid of the party, the justice may by word command the same party to find surety of the peace. Dalt. Justice, 387.
And justices, in such case, may by word only command the constable or any other known officer, or any private person then being present, to arrest such party to find sureties of the peace, and to take the party into his or their custody, &c.; and, if the party shall refuse to find such streties, then the justice of the peace may cominit him to jail. Dalt. Justice, 387. 1 Hawk. 128.
2. By writing. Justices of the peace have power to cause to come before them, or any of them, all persons who shall threaten to break the peace, or shall use threats against any person within this state concerning his or her body, or threaten to injure his or her property, or the property of any person whatever, and, also, all such persons as are not of good fame; and the said justice, being satisfied by the oath of one or more witnesses of his or her bad character, or that he or she had used threats as aforesaid, shall cause such person or persons to give good security for the peace, or for their good behavior, towards all the people of this state, and particularly towards the individual threatened. Gale's Stat., 239.
If the party against whom this surety of the peace is deinanded be absent, a justice of the peace cannot send for or command him to be arrested and brought before him, or to be imprisoned, by word only, but he must make his warrant or precept in writing. Dall. Justice, 387. 6 Bac. Ab., 436
The justice may make the warrant general, to bring the party before himself or some other justice, or he may
make it special, to bring the party before himself only; for he that maketh the warrant, for the most part, hath the best knowledge of the matter, and, therefore, he is the fittest to do justice in the case. 4 Burn's Justice, 269. 6 Bac. Ab., 436.
A conservator of the peace, being required to see the peace kept, if he shall be negligent therein, he may be indicted and fined for the same. Dalt. Justice, 5.
The warrant should be directed to some officer, or other indifferent person, and inust contain the cause and at whose suit, to the intent the party to be bound may provide his sureties and take them with him. Dalt. Justice, 387.
And, 3. By supplicavit. This is a writ issuing out of Chancery or the King's Bench (circuit court in this state) for the taking surety of the peace when one is in danger of being hurt in his body by another, and it is directed to the justices of the peace and the sheriff of the county, and, when obtained, the person against whom it is sued may come into court and there find suretics that he will not do hurt or damage unto him that sueth the writ, and, upon that, he shall have a writ of supersedeas, directed to the justices, &c., reciting his having found sureties according to the writ of supplicuvit, and, also, that writ, and the manner of security that he hath found, &c., commanding the justices that they cease to arrest him, or to compel him to find sureties, &c. Sometimes this writ is made returnable at a certain day, and directed to the justices of the peace, or to one of them, or to the sheriff, or every of them, to cause the party that is to be bound to come before him or them to find sureties of the peace. And the writ may direct that the principal and sureties shall be bound in certain sums, or may refer the sums to the discretion of the justice. Tho writ further directs that, if the party shall resuse, &c., they shall commit him to jail, and that, when they have taken surety, they do certify the recognizance which they have taken under their seals, and return the writ into the court from which it was awarded. Jac. Law Dic. (Supplicavit.) Dalt. Justice, 404. Chit. Gen. Pr., 682.
4. How the warrant may be superseded.
It is said that, if one who fears the surety of the peace will be demanded against him find sureties before any justice of the same county, either before or after a warrant is issued against him, he may have a super sedeas from such justice, which shall discharge him from arrest from any other justice at the suit of the same party for whose security he has given such surety. 4 Burn's Justice, 270. 6 Bac. ib., 411.
In the supersedeas, it is not necessary to name either the sureties or the sum in which they are bound, but yet it is the better form to express them both. 4 Burn's Justice, 270.
And it is said that a party may, either before or after that he is bound before a justice, give surety for the peace in the Chancery or the King's Bench, (circuit court in this state,) and that, thereupon, the party may have a supersedeas out of the court where he hath given such surety to restrain the justices of the peace of the county from taking any surety of the
peace of him; and then the justices of the peace of tle county, after the receipt of such supersedeas, must forbear to make any warrant for the peace against the party.
And, if any justice of the peace has granted out any such warrant against the said party, the said justice must make his supersedeas to the officers, thereby commanding them to surcease to put his former warrant in execution, and so to discharge it, and the party of an arrest or imprisonment thereupon. Dalt. Justice, 390. 6 Bac. Ab., 412.
If such supersedeas shall be directed to the justice of the peace and sheriff, the justice to whose hands it shall be delivered may keep it, and deliver the label to the party. Dalt. Justice, 390.
In these and the like cases, the justice of the peace shall do well to send to the next circuit court as well the said supersedeas as, also, the recognizance which he had formerly taken, (if he have taken any,) for the recognizance might be forfeited before the supersedeas was issued. Dalt. Justice, 390.
If any officer, having a warrant from a justice of the peace to arrest a man to find surety of the peace, shall receive a supersedeas out of the circuit court, or from any justice of the supreme court, judge of a circuit court, or justice of the
peace of the county, to discharge the same surety of the peace, and yet will urge the party, by force of his warrant, to find new surety for the peace, the party may refuse to give it; and, if he be arrested or imprisoned for such refusal, he may have his action of false imprisonment against such officer, for such
supersedeas is a discharge of the former precept or warrant, Dalt. Justice, 390.
5. How the warrant shall be executed.
It can be executed only by the persons to whom it is directed, or some of them, unless it be directed to the sheriff, who may, either by parol or by precept in writing, authorize an officer, sworn and known, to serve it, but cannot empower any other person without a precept in writing. 1 Ilawk., 128.
It seems generally agreed that, where a person, authorized by warrant of a justice of the peace to compel a man who is sheltered in a house to find sureties for the peace or good behavior, is denied quietly to enter it, he may justify breaking open the door in order to take him; but he inust first signify to those in the house the cause of his coming and request them to give him admittance. 2 Hawk., 86.
If the warrant specially direct that the party shall be brought before the justice who made it, the officer ought not to carry him before another. But, if the warrant be general, to bring him before any justice of such place, the officer has the election to bring hiin before what justice he pleaseth. 6 Bac. Ab., 436.
It would seem, however, as a general rule, the officer ought to take the party before the justice who issued the warrant, unless there be some reasonable cause for his not doing so.
And, if the party is carried before another justice, and not before him who issued the warrant, such other justice must take the surety and bind him, by recognizance, in all points as the form of the precept doth require ; and, therefore, such other justice, having so taken surety of the peace, may and ought, upon request, to make his supersedeas to all officers and to all other justices of the same county, and thereby the said party shall be discharged from finding other surety and from any other arrest for the same cause.
But, by such supersedeas, the other justice cannot discharge the warrant of the first justice until the party be bound in deed, nor give any other day to the party to appear. Dall. Justice, 389.
If the warrant be in the common form, requiring the officer to cause the party complained of to come before the justice to find sufficient surety, and, if he shall refuse so to do, to convey him immediately to prison, without expecting any further warrant until he shall willingly do the same, the officer who serves it, before he makes any arrest, ought first to require the party to go with him and find surety, according to the purport of the warrant; but, upon refusal to do either, that is, either to go before the justice or to find sureties, he may carry