PREVENTION OF INJURIES LEGALLY. CHAP. VIII. Supposed felony, and as he is assured he will thereafter be able to prove them by some third person, and not to press the magistrate to issue his warrant, but to leave him to interfere or not of his own accord; and then in general the informer will not be responsible for the consequences, in case the magistrate should erroneously issue his warrant, (e) when if a party should maliciously urge a magistrate erroneously to grant his warrant, then such party might be liable to an action, though the magis trate would not. (f) But the proceedings by warrant in general suppose an offence to have been completed, and therefore will be more properly considered on a future occasion. to prevent a Duel. V. Application V. Although in ordinary cases, on the apprehension of a to the Chancel duel or breach of the peace, application to prevent it should lor or Chief Justice, or other be immediately made to justices of the peace, as presently Judge of K. B. directed,'yet, when a Duel is expected between persons of rank and consideration, it may be expedient to apply to the Chancellor, or Chief Justice, or other Judge of the Court of King's Bench, (g) who will sometimes send for the parties, and require their pledge of honor not to proceed to any violent measures, or will, as the most certain course, issue his warrant in the first instance, and require them with sureties to enter into a formal recognizance to keep the peace towards each other, and which will preclude them, not only in honour, but legally, from even leaving the country to fight on the continent, as a duel out of the kingdom, between parties, one of whom is a British subject, would be as penal and punishable as a duel within the king's dominions, and equally constitute a breach of the recognizance. (h) VI. Prevention by requiring Suretics to keep of good beha VI. Whenever an injury to the person has been threatened, or the burning of a house, one of the most effectual modes of the Peace or be preventing injury is to obtain sureties to keep the peace or be of good behaviour, the latter of which includes the same thing; since if the threatener should find sufficient sureties, he would probably be deterred from committing the injury by the apprehension of subjecting his sureties to the payment of the stipu viour. (e) Ante, 630. (f) Smith v. Elsee, 1 Dowl. & Ry. 97; 2 Chit. R. 305; ante, 630, n. (g). (g) Each of these has, as incident to his office, general authority to keep the peace throughout the realm, and to award process for the surety of the peace, and to take recognizance for it, Hawk. b. 2, c. 8, s. 2; and Burn's J., Justices of Peace, I. It is most usual to apply to the Chief Justice to prevent a Duel. (h) Rex v. Roche, 1 Leach, 160; Rer v. Sawyer, R. & R. C. C. 294 ; Car. C. L. 103, 104; 9 Geo. 4, c. 31, s. 7; Rex v. Helsham, 1 Buru's J., Duelling, 1026. lated forfeiture, and if no sureties be found, then he must CHAP. VIII. remain in prison. (i) By the very terms of their commission, and at common law, and under the 34 Edw. 3, c. 1, and the constructions thereon, justices of the peace, and each of them, are appointed to keep the king's peace," and to cause to come before them, or any of them, all those who to any one or more of our people concerning their bodies or the firing of 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 keep them in our prisons until they shall find such security to cause to be safely kept." (k) The authority to take sureties to keep the peace was at common law; that to require sureties for good behaviour' is founded upon the 34 Edw. 3, c. 1, which, although limited in its words, "and to take of all them that be not of good fame sufficient surety and mainprize for their good behaviour towards the king and his people, to the intent that the people be not by the rioters and rebels therein mentioned troubled nor endangered, nor the peace blemished," has by the construction of the statute been extended to other injuries than might affect the bodies or dwellings of persons, or amount to a breach of the peace; as to divers misbehaviours not directly tending to a breach of the peace, many instances of which are stated by Dalton, and are enumerated by Dr. Burn, (/) as to a person who bought ratsbane and mingled it with corn, and then cast it among his neighbour's fowls, whereby most of them died, and to night walkers, and eves droppers and suspected persons, common gamesters, libellers, (m) abusers of justices whilst in execution of their office, and persons guilty of forcible entry, or threatening a person attending a court of justice, &c. (n). But Dr. Burn observes, that whatever power in these cases the Court of K. B. may have, yet at least one justice should in prudence only require sureties for the peace or good behaviour in those cases which constitute a breach of the peace or tend to it, or to offences which clearly establish that an offender is not of good fame, or those which have been repeatedly decided and PREVENTION LFGALLY. PREVENTION OF INJURIES LEGALLY. CHAP. VIII. acted upon as within the meaning of the acts and the authority of the commission. (o) It should seem, however, that when a person is bound by recognizance for good behaviour, he is not only to avoid actual breaches of the peace, but must well demean himself in his carriage and company, not doing any thing which might be a cause of a breach of the peace, or put the people in fear or dread, but this does not extend to misdoings of other things which touch not the peace. (p) A recognizance to keep the peace is only forfeited by an actual attack or threat of bodily harm, or burning a house; therefore it is not forfeited by bare words of heat and choler, as calling a man a knave, liar, rascal, or drunkard; for though such words might provoke a choleric man to break the peace, yet they do not directly challenge him to do it, nor does it appear that the speaker designed to carry his resentment further; and it has been said that even a recognizance for good behaviour shall not be forfeited by such words; (q) but a challenge to fight would undoubtedly constitute a breach of such recognizance. (r) However, a mere entry with force on lands, without offer of violence to any man's person, and without public terror, or a trespass to corn, or grass, or goods, or horse, so that it be not a taking from the person, though nominally breaches of the peace, are not sufficient to forfeit a recognizance to keep the peace, for the act to constitute a breach of such recognizance must be done or intended to the person, or in terror of the people. (s) But a recognizance to be of good behaviour shall not only be forfeited by actual breaches of the peace, but also for some others for which a recognizance to keep the peace would not be forfeited, as for going armed with great numbers to the terror of the people, as speaking words tending to sedition, and also as said in Hawkins, for such actual misbehaviour which are intended to be prevented by such a recognizance, but not for barely giving cause of suspicion for what (0) 5 Burn's J. tit. Surety, &c. 686, 687. There seems no occasion to strain or extend the terms "be not of good fame," in the statute 34 Ed. S, c. 1, to fresh cases, since by the modern act against vagrants, 5 Geo. 4, c. 83, ante, 621, 622, almost every possible description of person likely to commit offences is included, and they are made punishable, though perhaps in many of these cases it might suffice to require from such suspicious persons sureties for their good behaviour instead of the punishment at present prescribed, or at least so as to mitigate the punishment, now imprison ment for three or six calendar months, or a year. It seems very questionable whether a justice, in case of poisoning a neighbour's fowls, had any jurisdiction to require sureties for good behaviour ander the 34 Ed. 3, c. 1, which seems only to extend to offenders therein mentioned, 5 Burn's J. Sureties, Good Behaviour, 683. (p) Dalt. c. 122; Hawk. b. 1, c. 61, s. 5, 6. (9) Hawk. b. 1, c. 60, s. 22. Dalt. c. 121; 5 Burn's J. Surety, Peace, 678. PREVENTION OF INJURIES LEGALLY. perhaps may never actually happen. (t) The term "intended," CHAP. VIII. however, seems too undefined, for as the terms of the recognizance are in general to be of good behaviour, what those words mean must be considered to be confined to what the law considers good behaviour and its breaches, and not what the magistrate or others also required the recognizance intended to prevent. It appears, however, to be agreed, that no legal assault or other act will constitute a breach of either recognizance if it were justifiable as a battery in self defence, or of a wife, child, apprentice, or servant. (u) To obtain sureties to keep the peace, the party requiring it When and how must swear to fear of present or future danger, and not merely fore a justice, to proceed beto a battery or trespass, or any breach of the peace that is past, &c. excepting indeed that it is always advisable to state any such injury and a threat of repetition, as a legitimate ground for fearing future injury, which fear must always be stated. (x) Whenever a person can swear to just cause of fear that another will burn his house, or do him corporeal hurt, as by killing or beating him, or causing others to do him such mischief, or illegally to imprison him; he may require sureties of the peace, and the justice is bound to cause proceedings accordingly, (y) or would be liable to an action and punishment for the consequences of his neglect; and a husband or parent may require such sureties against threatened injury to his wife or child. (*) But not a master in respect of threats to his servant, (a) nor any one by virtue of the general act for threats of injury to cattle, goods, or land. (b) Threats by letter or writing to burn or destroy houses, outhouses, barns, stacks of corn, or grain, hay, or straw, and other threats, are provided for by particular statutes. (c) The oath and articles should state the connection, if any, between the parties, and the circumstance relating to any prior cruelty and injury to the person, and the threat, if any, of repetition, and then particularly state the existing fear of future bodily harm, or of his house being fired, and then conclude by swearing that the application is really and truly made from fear of bodily harm, and for protection against it, and not (t) Hawk. b. 1, c. 61, s. 6. (u) Hawk. b. 1, c. 60, s. 23, 24; Burn's J. Surety, Peace, IX. (x) Dalt. c. 11, s. 116; Burn's J. Surety, Peace, I. (y) Hawk. b. 1, c. 60, s. 6, 7. Dalt. c. 116. Id. ibid. (b) Lamb. 83; Dalt. c. 116. (c) 4 Geo. 4, c. 54, s. 3; 7 & 8 Geo. 4, c. 29, ante, 136; and see Burn's J. Threats. PREVENTION LEGALLY. CHAP. VIII. through hatred, malice, or ill will towards the other party. (d) But it should seem that if the facts of beating or ill usage and threat of repetition be true, and the apprehension of bodily harm be well founded, even ill will or express malice towards the party applied against will not constitute any ground for refusing sureties of the peace to prevent the commission of the expected injury. (d) Some of the forms of oath state in the alternative, that the party has beaten, or threatened to beat, the complainant, (e) but this is incorrect, and if actual injury and threat of further injury have taken place, both should be stated distinctly, and not in the alternative. In general the application should be made to a neighbouring magistrate, or in case the sessions of peace are then holden, then directly to the court of sessions, unless in cases of Peers. (f) The Articles before magistrates at sessions should be upon oath, or the affirmation of a quaker, (g) stating fully all the facts, and it is said that they should be exhibited on parchment; (h) but this, though usual, does not appear to be enjoined by any act of parliament, nor absolutely requisite, for immediate security may be requisite, and no parchment at hand. (¿) The justices or Court of Sessions are then to issue a Warrant to bring the party charged before them. The Recognizance to be taken by a justice may be to keep the peace for a certain time, as for two years, or generally for any indefinite time, (k) though it is usually until the next sessions of the peace, and in the meantime to keep the peace to the king and all his liege people, especially to the party claiming the security, (l) and in the latter case the applicant should appear at the sessions and exhibit articles. (m) The former recognizance, however, seems preferable in common cases, because it avoids the necessity for the trouble and expense of the appearance of the parties at the next sessions. If the party refuse to find the sureties, he is, by the terms of the justice's commission and the statute, to be committed. (n) But if so committed, then the warrant must express the cause thereof, and show on the face of it that it (d) Hawk. b. 1, c. 60, s. 6; Dalt. (ƒ) Hawk. b. 1, c. 60, s. 3; 4 Bla. (h) Burn's J. Surety, Peace, IV. (i) A plea puis darrein continuance at Nisi Prius may be on paper, Myers v. (k) Willes v. Bridger, 2 B. & Ald. 278. (n) 2 Hale, 112; Dalt. c. 118; Burn's J. Surety, Peace. |