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therewith; or if a man gently lay his hands on another, and thereby stay him from exciting a dog against a third person; or if I beat one (without wounding him, or throwing at him a dangerous weapon) who wrongfully endeavours with violence to dispossess me of my land, or goods, or the goods of another delivered to me to be kept for him, and will not desist upon my laying my hands gently upon 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. Ibid. sect. 23.

6. But it seems agreed, that no one shall forfeit such a recognizance, by a bare trespass of another's lands, or goods, unless it be accompanied with some violence to the person. Ibid. sect. 25.

7. Nor in the exercise of lawful sports. 4 Com. Dig. 221.

But it is said, that he who wounds another in fighting with naked swords, does in strictness forfeit such a recognizance, because no consent can make so dangerous a diversion lawful. Haw. B. 1, ch. 60,

sect. 26.

8. Nor will scolding words be a forfeiture; for an act must be done. 4 Inst. 180.

9. Nor will a hurt arising from negligence or mischance; though the party would be bound to answer for it in a civil action. Haw. B. 1, ch. 60, sect. 27.

VIII. HOW SUCH RECOGNIZANCES MAY BE DIS

CHARGED.

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

2. It may be discharged by the death of the principal party bound thereby, if it was not forfeited before. Haw. B. 1, c. 60, sect. 17. 3. Mr. Hawkins doubts whether the party complaining can discharge a recognizance for the peace. Ibid.

4. But it is sometimes discharged by the release of the prosecutor, on motion, by producing his consent verified by affidavit :-or consenting by counsel. 4 Com. Dig. 222.

5. And if a man be bound to keep the peace towards the common. wealth, and all its citizens, but not towards any particular person, and to appear at such a sessions, the court at that sessions may make proclamation, that if any one can shew 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 to shew 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 to the next sessions, and that may be to keep the peace against that person only, if they shall think good. Dalt, ch. 120.

And it is said that the sureties are not discharged by their death, but that their executors or administrators continue bound, as their testators, or intestates were. Haw. B. 1, c. 60, sect. 17.

6. Likewise, if the party be imprisoned for default of sureties, and after he that demanded 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. Dalt. c. 118.

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.

There is yet another mode (and by far the most usual in this state) in which a recognizance for the peace may be discharged; which is, by the act of the court itself to which such recognizance is returnable, on a full examination of the evidence, as well on behalf of the complainant, as the party accused. For although it is strongly holden, in the books, That the court will not permit the truth of the allega. tions to be controverted by the defendant, but will order security to be taken immediately, if no objections arise upon the face of the articles themselves" (Str. 1202.) Yet it is the constant practice, in the courts of this commonwealth, to go into a full inquiry of the facts, and to release or bind the party, as they may judge most proper from the nature and circumstances of the case.

(A)

IX. VARIOUS PRECEDENTS.

Form of the oath to be administered to the person demanding surety of the peace.

You shall swear that the surety for the peace which you now require against A O proceeds from a well grounded fear that the said A O will burn your house, or do you some corporal hurt, or that he will procure some other person or persons to do you such injury; and that you have just cause to be afraid in consequence of the said A O's threats; and that you do not require such surety out of malice, or for vexation. So help you God.

(B) Warrant for the peace.

county, to wit.

Whereas A J, of

in the said county, yeoman, hath personally come before me, JP, one of the commonwealth's justices, assigned to keep the peace in the said county, and hath taken a corporal oath, that he, the said A J, is afraid A (), of in the said coun

ty, labourer, will beat him (wound, maim, kill.) or do him some bodily hurt, and hath therefore prayed surety of the peace against him, the said AO: These are therefore on the behalf and in the name of the commonwealth to command you, that immediately upon the receipt hereof you bring the said A O before me, to find surety, as well for

his personal appearance at the next court to be holden for the said county, as also for his keeping the peace, in the mean time, towards the itizens of this commonwealth, and chiefly towards the said A J. Given under my hand and seal, at in the said county, the

day of

in the year

JP. [Seal.]

Note. This warrant may be directed to the sheriff, constable, or to any private person by name, who is no officer; for the justice may authorise any one to be his officer whom he pleases to make such; but it is most adviseable to direct it to the constable of the precinct wherein it is to be executed; for that no other constable, and, a fortiori, no private person, is compellable to serve it. Haw. B. 2, c. 13, sect 27.

(C) Warrant for the good behaviour, from

county, to wit.

Lambard & Dalton.

AP, and BP, justices of the commonwealth, assigned to keep the peace within the said county, to the sheriff of the said county, and to all and singular the constables, and other officers in the said county, greeting:

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Forasmuch as we are given to understand, from the information, testimony, and complaint of many credible persons, that A O, of in the said county, gentleman, and B O, of in the same county, yeoman, are not of good name and fame, nor of honest conversation, but evil doers, rioters, barrators, and disturbers of the peace of the commonwealth, so that murder, homicide, strifes, discords, and other grievances and damages, amongst the citizens of the said commonwealth, concerning their bodies, are likely to arise thereby: Therefore, on behalf of the said commonwealth, we command you, and every of you, that you omit not by reason of any liberty within the county aforesaid, but that you attach, or one of you do attach, the aforesaid A O and B O, so that you have them before us, or others our fellows, justices of the said commonwealth, assigned to keep the peace within the county aforesaid, as soon as they can be taken, [or before the justices of the said commonwealth, assigned to keep the peace within the county aforesaid, and also to hear and determine di- . vers felonies, trespasses, and other misdemeanors, in the said county committed, at the next court to be holden in and for the said county] to find then before us (or the the said justices) sufficient surety and mainprsie for their good behaviour towards the said commonwealth, and all its citizens, according to the form of the statute in such case made and provided. And this you shall in no wise omit, on the peril that shall ensue thereon. And have you before us, [or, before the said justices, at the sessions aforesaid] this precept. Given under our seals, at the in the county aforesaid, this

in the year

day of

1

(D) Recognizance for the peace or good behaviour.

county, to wit.

day of

in the year

Be it remembered, that on the A O, of in the county aforesaid, yeoman, A S, of the same place, yeoman, and B S, of the same place, yeoman, came before me, one of the commonwealth's justices of peace for the county aforesaid, and acknowledged themselves to owe to C M, esquire, governor or chief magistrate of the commonwealth of Virginia, and his successors, to wit, the said A O, the sum of dollars, and the said A S, the sum of dollars, and the said B S, the sum of dollars, current money of Virginia, to be respectively levied and made of their several goods and chattels, lands and tenements, to the use of the commonwealth aforesaid, if he, the said A O, shall fail in performing the condition underwritten.

The condition of this recognizance is such, that if the above bound A O shall personally appear at the next court, to be holden in and for the county of aforesaid, to do and receive what shall then and there be enjoined him by the said court, and in the mean time shall keep the peace [or, be of the good behaviour; or, shall keep the peace, and be of the good behaviour] towards the commonwealth and all its citizens, and especially towards A J, of in the said county, yeoman : Then the said recognizance shall be void, or else remain in full force.

(E) Mittimus for want of sureties.

county, to wit.

To the constable of

and to the keeper of the jail in the said county.

Whereas A O, of in the said county, yeoman, is now brought before me, JP, one of the commonwealth's justices, assigned to keep the peace in the said county, requiring him to find sufficient sureties to be bound with him in a recognizance, for his personal appearance at the next court to be holden in and for the said county, and in the mean time to keep the peace [or, be of the good behaviour] towards the said commonwealth, and all its citizens, and especially towards A J, of in the said county, yeoman; and whereas he, the said A O, hath refused, and doth now refuse before me, to find such sureties : These are therefore, in the name of the commonwealth, to command you, the said constable, forthwith to convey the said A O to the common jail of the said county, and to deliver him to the keeper thereof there, together with this precept: And I do, in the name of the said commonwealth, hereby command you, the said keeper, to receive the said A O into your custody, in the said jail, and him there safely keep, until he shall find such sureties as aforesaid, [or, be otherwise discharged by due course of law]. Given under my hand and seal, at in the said county, this day of in the year

(F) Liberate, or warrant to the jailor to discharge one committed for want of sureties.

county, to wit.

JP, one of the commonwealth's justices, assigned to keep the peace within the said county, to the keeper of the jail in the said county, greeting:

Forasmuch as A O, in the public jail in your custody now being, at the suit of A J, of in the said county, yeoman, for the want of his finding sufficient sureties for his personal appearance at the next court, to be holden in and for the said county, and for his keeping the peace [or, being of the good behaviour] in the mean time, towards the said commonwealth of Virginia, and its citizens, and all especially towards the said A J, hath found before me sufficient sureties, to wit, A S, of yeoman, and B S, of yeoman, either of which hath undertaken for the said A (), under the pain of dollars, and he, the said A O, hath undertaken for himself, under the pain of dollars, that he, the said A O, shall and will personally ap pear at the next court, to be holden in and for the said county, and shall well and truly keep the peace [or, be of the good behaviour] in the mean time, towards the said commonwealth, and all the citizens thereof, and especially towards the said A J. Therefore, on behalf of the said commonwealth, I do command you, that if the said AO do remain in the said jail, for the said cause, and for none other, then you forbear to grieve or detain him any longer, but that you deliver him thence, and suffer him to go at large, and that upon the pain that will fall thereon. Given under my hand and seal, at in the said county, this in the year

day of

SURETY FOR THE GOOD BEHAVIOUR.

SURETY for the good behaviour resembles in so many instances surety for the peace, both as to the manner in which it is to be taken, superseded, and discharged, that it will not require a particular consideration, except as to the following points:

I. For what misbehaviour it is to be required. II. For what it shall be forfeited.

1. FOR WHAT MISBEHAVIOUR IT IS TO BE REQUIRED.

This species of recognizance, with sureties, which includes surety for the peace, and something more, may be required by the judges of the court of appeals, high court of chancery, and general court, and

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