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Surety for the Peace.
as by cruel beating of him: and to threaten imprisonment, is a
cause
to avoid a Deed or Bond, as well as to threaten to kill or maim one, &c.
39 H. 6. Br. Duress. 9. Vide Co. L. 253. |
Chap. 116.
F. N. B. 8. c. g.
Lamb. 85. |
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Where a man is in fear that another will hurt his
Servants or his Cattle
or other Goods; this Surety of the Peace shall not be granted by the Justice
of Peace: but in this Case Mr. Fitz. saith, the Party may
have a special
Writ out of the Chancery, directed to the Sheriff, that he shall
cause such person
to find Surety, that he shall do no hurt or damage to the other man
in his Body, or to his Servants or Goods. And if he will not find
Surety,
that then he shall arrest and detain him in Prison until he shall find
Surety: and that the Sheriff shall certifie all that he shall
do thereupon into
the Chancery, &c. And it seemeth the Sheriff ought to
take such Surety
by Recognizance. And yet if a man shall threaten to hurt my Servant,
or
my Wife, or Child, I see no cause but that in their behalf I may crave
the
Peace at the Justice's hands, by the words of the Commission, and that
the
Justice ought to grant it. |
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If a man will require the Peace, because he is at
variance, or in suit with
his Neighbour, it shall not be granted by the Justice of Peace. |
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Note also, the Surety for the Peace shall not be
granted but where there is
a fear of some present or future danger, and not meerly 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.
Now Metus
est præsentis vel futuri periculi causa, mentis trepidatio:
and so this
Surety is, providere præsentia & futura, & non præterita. |
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And, as for a Battery or other like Trespass that
is past, the party wronged
may have his Action of Trespass or Battery, &c. or may punish the
Offender by Indictment at the King's Suit: and yet in such Case the
Justice
may (if he see cause) bind over the Affrayer. Vide antea,
& Ex. 21. 19. |
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§. 6.
Deny. |
If the Justice of Peace shall perceive that this
Surety for the Peace is demanded
merely of malice or for vexation only, without any just cause of
fear, it seemeth he may safely deny it. As in common experience we
find
it, That where A. shall upon just cause come and crave the peace
against
B. and hath it granted to him; when B. shall come before
the Justice, B. likewise
will crave the peace against A. (and will perhaps surmise some cause)
but yet will nevertheless be content to surcease his Suit and Demand against
A. so as A. will relinquish to have the peace against him;
here the
Justice of Peace shall do well (as I think) not to be too forward in
granting
the peace thus required by B. but to persuade him, and to
shew him the
danger of his Oath which he is to take; but yet if B. 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 upon such Complainant. |
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And when the Justice hath so granted the peace to
one that (in the Justice's
judgment) shall crave or require it only out of malice or for vexation,
the Justice may presently in good discretion bind him to the Good behaviour
that so required the peace. |
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