Chap. 120.
Lamb. 12. |
Surety for the Peace.
shew cause, why the peace granted against such a one shall be continued,
that he speak, &c. 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. there, though A. cometh not in to desire
that the
peace may be continued, yet the Court by their discretion shall do well
to
bind him over till the next Sessions, and that may be to keep the peace
against A. only, if they shall think good: For it may be that
A. who first
craved the peace is sick, or otherwise letted, so as he cannot come to
that
Sessions to demand the continuance of the peace further; and in some
places in such case, they ordinarily use to bind over for two or three
Sessions together, by order among themselves. |
279 |
2 H. 7. 4.
Br. Surety
13. |
And yet by the course of the Common Pleas, one
that was imprisoned
for the peace (being removed thither by a Writ of Priviledge) was there
discharged, for that he which demanded the peace, came not at the day
(of the Return of the Writ) to pray continuance thereof. See more
antea
sub hoc tit. |
|
|
If the Justice of peace shall not certifie the Recognisance
to the Sessions,
yet the party ought to appear, and to record his appearance. See
such a matter of the Sheriff, who took Bond of one to appear in the Common
Bench, at a certain day, &c. although the Sheriff return not his
Writ, &c. yet the party must appear to save his Bond. Vide
18 Ed. 4. 18.
for this last case. |
|
Cromp.
143. |
If the party that is bound to appear, be so sick
that he cannot appear,
nor by any means travel at the day, yet it seemeth his Recognisance in
strictness of Law is forfeit, and so it is by the course of the Courts
at Westminster,
ut dicitur; yet in this case, upon the due proof of such his sickness,
I have known the Justices of peace (in their discretion) have forborn
to certifie or record such forfeiture or default; and that they have taken
Sureties for the peace of some Friends of his present in Court, until the
next Sessions; for that the principal intent of the Recognisance was but
the preservation of the peace. But quære, how this is
warrantable by
their Oath; besides, the party so bound, might (by a Cerciorari)
have removed
his Recognisance into the Chancery or King's Bench, before the day
of his appearance, and then he should not have needed to appear at the
Sessions, for that the Justices there should have no record whereupon to
call him. |
§. 3.
Appearance. |
|
But the Civil Law in such Cases is more favourable;
for with them the
Rule is, Citatus ad locum non tutum, non arctatur comparere:
As if the
Plague shall be hot in the place or Town where the party is to appear,
or
where their Court is held. This is a good excuse in their Law,
ut dicitur. |
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|
So if there shall be any other inevitable accident,
whereby the party
shall be hindred, as by any great Snow, inundation of Waters, or by any
fall, or other hurt or sickness, whereby the party is in danger of death:
In these and the like cases, the Civil Law doth dispence with default,
referring
these things Arbitrio Judicis. |
|
|
See Mr. Brook tit. Saver de Default 17, 28,
45, & 48. ' and divers
' other Books, shewing, That the Common Law doth allow divers Cases
' to save a default of not appearing in Court, the same being pleaded and
' proved, as imprisonment, inundation of Waters, Tempest, and Sickness.
Vide lib. Intr. |
|
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Cromp.
144. |
If the Husband be bound, that he and his Wife shall
appear at such Sessions,
and that they shall keep the peace in the mean time, &c. and at the
day the Husband doth appear, but not his Wife. Here Mr. Crompton
saith, the |
§ 4.
Baron &
Feme. |
B b 2
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 |
