ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Recognizance thereon

May be in the form given in ante p. 28.

SUMMONS.

A summons is the usual process issued by justices to procure the attendance of a person accused, where the offence is between party and party, and not of an aggravated nature; but where the offence is of a higher nature, as felony, breach of the peace, &c., and in cases where the king is a party, it may be proper to issue a warrant in the first instance. In petty assaults, though justices are authorised to issue a warrant on complaint on oath of the party, yet a summons is more advisable, as in many cases it is found that there is little or no pretence for the accusation.-Palcy, 18. A summons may be either directed to the party, or to a constable, requiring him to summon the party.-Paley, 18. Where the summons is directed to the constable, or a third person, a copy of it plainly and legibly written on paper, should be served personally upon the party accused; if directed to the party himself, the original should be personally served upon him, and a copy of it kept by the party serving it. It should be personally served upon the party accused, unless where personal service is expressly dispensed with by statute.-Arch. Con. 97. The justice should fix the time of day when the party should attend; for though the accused is bound (if the summons is to attend a petty sessions) to wait until the magistrate can attend to the complaint, yet it is reasonable to appoint a time when the complaint can probably be heard.-Toone, 858. In general, a summons may be granted without the oath of the complaining party; but in some cases the oath is indispensable, as in complaints between masters and servants, &c., and in all cases where so directed by statute; and if the complaint is on oath, it should be so stated in the summons-Toone, 858; but an information for a penalty need not be upon oath, unless the statute requires it.-8 T. R. 508. Where a particular form of notice or summons is required by a statute, that must be strictly pursued.-Paley, 18. Where the defendant, after being duly served with the summons, neglects to appear before the magistrate, he may be in that case convicted in his absence.-R. v. Simpson, 1 Str. 44; 10 Mod. 248, 341, 370; but proof should previously be given of the service of the summons.-Paley, 21. And see 5 G. II. c. 25, §7; 6 G. II. c. 9, § 22. In a case where a defendant was convicted without a previous summons, the Court of King's Bench granted a criminal information against the justice.-R. v. Venables, 2 Ld. R. 1407. The defendant should be allowed a reasonable time for his appearance, for a summons to appear

immediately, or upon the same day, would be bad, unless cured by the defendant's appearance.-R. v. Mallison, 2 Burr. 681; R. v. Johnson, 1 Str. 261.

Summons, when directed to the Constable. (Archbold.)

County of

to wit.

}

To the constable of

Whereas A. B. of

day of

in the county aforesaid, labourer, hath this day been charged before me, J. P., one of her Majesty's justices of the peace for the county aforesaid, on the oath of a credible witness, for that he the said A. B., on the in the year of our Lord 18, at in the said county, did [here state the offence]. These are, therefore, to require you forthwith to summon the said A. B. to appear before me, at —, in the said county, on ————— next, the day of instant, at the hour of in the forenoon of the same day, to answer the said charge, and to be further dealt with according to law; and be you then there to certify what you shall have done in the premises. Herein fail you not. Given under my hand and seal, the

of our Lord 18-.

County of

to wit.

day of

[ocr errors]

in the year

[blocks in formation]

copy of

of -, personally serve the within named A. B. with a true the within written summons. Sworn, &c.

Summons, when directed to the Party. (Archbold.)

County of to wit.

[merged small][ocr errors][merged small]

Whereas you have this day been charged before me, J. P., esq., one of her Majesty's justices of the peace for the county aforesaid, on the oath of one credible witness, for that you, on the day of last, at in the county aforesaid, did &c. (here state the offence as in the information). These are therefore to require you to appear before me at, in the said county, on

instant, at the hour of

next, the day of o'clock in the ——noon of the same day, to answer the said charge, and to be further dealt with according to law. Herein fail you not. Given under my hand and seal, the day of in the year of our Lord Oath of the service of such Summons.

[ocr errors]

County of to wit.

day of

[ocr errors]

C. D. of constable of the said township, maketh oath and saith, that he did on the -, instant, personally serve A. B. of —, yeoman, with the original summons, under the hand and seal of J. P., esquire, one of her Majesty's justices of the peace for the said county, of which the within is a true copy.

County of

to wit.

Summons of a Witness to be examined.

To the constable of

Whereas information hath been made before J. C., esq., one of her

Majesty's justices of the peace in and for the said county, that [here state the offence committed, and by whom] and that A. B. of is a material witness to be examined concerning the same. These are therefore to require you to summon the said A. B. to appear before me at , in the said county, on the -, at the hour of in the --noon of the same day, to testify to the truth, according to the best of his knowledge concerning the premises. Given under my hand and seal, the day of, 18—.

day of

[merged small][ocr errors]
[ocr errors]

A man may be compelled to find sureties of the peace, 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. The authority under which a justice of the peace may require surety for the good behaviour, is founded upon the statute 34 Ed. 3, c. 1; and the commission of the peace. No one ought to be bound to the good behaviour for any rash, quarrelsome, or unmannerly words, unless they either tend to a breach of the peace, or to scandalise the government, by abusing those who are intrusted by it with the administration of justice, or to deter an officer from doing his duty; and therefore, it seems that he who barely calls another "rogue,' or "rascal," "liar," or "drunkard," ought not for such cause to be bound to the good behaviour. However, says Mr. Hawkins, I cannot find any certain or precise rules for the direction of the magistrate in this respect, and therefore am inclined to think that he has a discretionary power to take such surety of all those whom he shall have just cause to suspect to be dangerous, quarrelsome, or scandalous; as of those who,sleep in the day and go abroad in the night; and of such as keep suspicious company; and of such as are generally suspected to be robbers, and the like; and of eaves-droppers; and of common drunkards; and all other persons whose misbehaviour may reasonably be intended to bring them within the meaning of the statute; as persons of evil fame, who being described by an expression of so great a latitude, seem in a great measure to be left to the judgment of the magistrate. But if he commit one for want of sureties, he must shew the cause with sufficient certainty.-1 Haw. 132.

Mr. Dalton, (who wrote towards the latter end of the reign of king James the first,) in order to determine the same with some kind of certainty, has inserted the following, as instances in which sureties for the good behaviour may be granted, viz. :

Against, 1. Rioters. 2. Barrators. 3. Common quarrellers and common breakers of the peace. 4. Such as lie in wait

to rob; or shall be suspected to lie in wait to rob; or shall assault or attempt to rob another; or shall put passengers in fear or peril; or shall be generally suspected to be robbers on the highway. 5. Such as are like to commit murder, homicide, or other grievance to any of the king's subjects in their bodies. 6. Such as shall practise to poison another; one instance of which may be the poisoning of their food; thus Mr. Dalton granted a warrant for the good behaviour against one who had bought ratsbane, and mingled it with corn, and then cast it amongst his neighbours' fowls, whereby most of them died. 7. Such as in the presence of the justice shall misbehave himself in some outrageous manner of force or fraud. 8. Such as are greatly defamed for resorting to houses suspected to maintain adultery, or incontinency. 9. Maintainers of houses commonly suspected to be houses of common bawdry. 10. Common whoremongers and common whores. 11. Night-walkers, that shall eaves-drop men's houses; or shall cast men's gates, carts, or the like, into ponds; or commit other outrages or misdemeanors in the night; or shall be suspected to be pilferers, or otherwise like to disturb the peace; or that be persons of ill behaviour, or of evil fame or report generally; or that shall keep company with such, or with any other suspicious persons in the night. 12. Suspected persons who live idly, and yet fare well, or are well apparelled, having nothing whereon to live, unless, upon examination, they shall give a good account of such their living. 13. Common gamesters. raise hue-and-cry without cause. 15. Libellers. father of a bastard child.* 17. Such as persuade or procure the putative father of a bastard child to run away. 18. Such as abuse a justice's warrant, or shall abuse him, or the constable in executing his office. Nay, it seemeth, he says, that he who shall use words of contempt, or contrary to good manners, against a justice of the peace, though it be not at such a time as he is executing his office, yet he shall be bound to his good behaviour. 19. Such as charge another before a justice with felony, riot, or forcible entry, and yet will not prosecute or give evidence. 20. In general, whatsoever act or thing is in itself a misbehaviour, is cause sufficient to bind such an offender to the good behaviour.-Dalt. c. 124.

14. Such as

16. Putative

To which may be added-21. Forcibly entry.—1 Haw. 124, 22. The author of any writing full of obscene ribaldry.-1 Haw. 195. 23. For striking a person in the presence of the justices.-Crom. 124. 24. For threatening so as to deter witnesses from attending a court of justice.-lb. 125.

There being no poor-laws in this province, an offender of this sort would not, probably, be liable.

For what it shall be forfeited.

Mr. Hawkins says, it has been laid down as a general rule that whatever will be a good cause to bind a man to his good behaviour, will forfeit a recognizance for it; but this has since been denied, and indeed seems to be by no means maintainable; because the statute, in ordering persons of evil fame to be bound in this manner, seems in many places chiefly to regard the prevention of that mischief, which they may justly be suspected to be likely to do; and in that respect requires them to secure the public from that danger which may probably be apprehended from their future behaviour, whether any actual crime can be proved upon them or not; and it would be extremely hard in such cases to make persons forfeit their recognizance who may yet justly be compelled to give one, as those who keep suspicious company; or those who spend much money idly, without having any visible means of getting it honestly; or those who lie under a general suspicion of being rogues and the like.-1 Haw. 132, 133. However, it seems that such a recognizance shall not only be forfeited for such actual breaches of the peace, for which a recognizance for the peace may be forfeited, but also for some others for which such a recognizance cannot be forfeited; as for going round with great numbers to the terror of the people, or speaking words tending to sedition; and also, for all such actual misbehaviours which are intended to be prevented by such a recognizance, but not for barely giving cause of suspicion of what may perhaps never happen.-1 Haw. 133.

For the forms requisite under this title, see "Articles of the Peace," the forms in which may be easily adapted to any case that may arise under this head, observing throughout to confine the subject matter to "surety of the good behaviour,' omitting the words "surety for the peace."

SURVEYORS.

See ante titles "Highways," "Land Surveyors."

SWEARING.

[ocr errors]

By stat. 19 G. II. c. 21, the following penalties are imposed on offenders who shall profanely curse or swear, and be convicted thereof on confession, or oath of one witness, before one justice, viz. every day-labourer, common soldier or common seaman, one shilling; every other person under the degree of a gentleman, two shillings; and every person of or above the degree of a gentleman, five shillings; and for a second offence after conviction, double; and for every subsequent offence after conviction, treble; which said penalties shall go to the poor of

« ÀÌÀü°è¼Ó »