| Chap. 118 |
Surety for the Peace.
shall make an affray or assault upon another, or do the like thing rending
to the breach of the peace the Justice of peace may command him by
word to find Sureties for the peace. |
271 |
| 14 H. 7. 9. |
Also if one shall demand this Surety against another,
who is then in the
presence of the Justice of peace, and will be sworn that he is afraid of
him, the Justice may by word command the same party to find Sureties
for the peace. |
|
14 H. 7. 8,
9. |
And the Justice of peace in such cases may (by word
only) command
the Constable or any other known Officer (or his own servant) being
then present, to arrest such party to find Sureties for the peace, (and
to
to take the party into his or their custody, &c.) and if the party
shall refuse
to find such Sureties, then the Justice of peace may commit him to
the Gaol. |
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But if the party (against whom this Surety of the
peace is demanded)
be absent, it is otherwise; for a Justice of peace cannot send for
any man,
or command any man to be arrested or brought before him, or to be imprisoned,
who is not in his presence, by word only, but he must make his
Warrant or Precept in writing. And Popham, Chief Justice,
said, That the
Justices of the Kings-Bench, when they send for any of the King's subjects,
it is either by Writ, or by Warrant, or by a Tipstaff: But the Tipstaff
(said he) is by prescription, except that the party be in Westminster-hall,
&c.
See the case between Woody versus Bokers & Read-head: Termino
Mich.
Ann 2 Jac. Regis, Rotul. 480. in Banco Regis. |
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This Precept or Warrant then must be made in Writing,
and under the
Justice his seal; and must be directed to some Officer or other indifferent
person, and must contain the Cause, and at whose Suit, to the intent the
party to be bound may provide his Sureties, and take them with him. |
§. 2.
By Writing. |
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The form of which Precept, see postea, tit. Warrants,
cap. 121. |
|
Co. 5. 59.
Br. Peace,
9.
Balstr. part
3. p. 78.
21 H. 7. 2. 2. |
The Justice of peace may make his Warrant to bring
the party before
himself, (to find Surety for the peace) by the opinion of Wray, Chief
Justice;
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 such
case. And yet the most usual manner is, to make such a Warrant to
bring
the party before the same Justice, or some other of the Justices of peace
of
the same County, &c. And Judge Fineux his opinion was,
That where a
Justice of peace doth make any Warrant for the peace ex Officio, (sc.
by
force of the Commission, and not by virtue of a Supplicavit,) there
the
party may chuse to appear before him or any other Justice in that County:
And that the party may have his Action of False Imprisonment against the
Officer, if he do otherwise compel him. Otherwise it is in the execution
of the Writ of Supplicavit, as you may see here postea, sub
hoc titulo. |
§. 3.
Before
whom to
be brought. |
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Who may serve this Warrant, and whether the Officer
may make his
Deputy; and whether they need shew their Warrant or no; and whether
they may break open the doors, &c. See hereof tit. Warrants,
postea. |
|
5 Ed. 4. 13.
Lamb. 92.
Yet some
Precedents
are,
Quod capiales,
&c.
P. R. 20. &
Cromp. 2,
5.
Br. F. imp.
18. |
The Constable (or other Officer) before he arrest
the party upon such
a Warrant, ought first to acquaint him with the matter, and withal to require
or charge the party in the King's name, to go (with him) before the
Justices to find and put in Sureties according to the Warrant: and if the
party shall refuse to do this, sc. shall refuse either to go before
the Justices
or to find Sureties, then the Officer (by the words of the Warrant) may
and ought forthwith to arrest him, by virtue of that Warrant, and may
convey him to the Gaol without carrying him to any Justice, and there
the
party shall remain until he shall voluntarily offer and find Sureties:
and |
§. 4.
How it
shall be
executed. |
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