delay or cavilling about facts can be tolerated. And while this consideration should make justices of the peace and courts extremely careful not to grant this request on slight grounds, yet the responsibility is entirely thrown on the complainant, whose personal apprehensions cannot indeed be easily measured or refuted at the moment, but who may afterwards be called to answer for any wilfully false statements, on which his suspicions profess to be founded. He is liable, for example, first to the pains of perjury, and indeed where on the complainant's own statement manifest contradictions appeared, the court has ordered him then and there to be prosecuted for perjury, and has dismissed his application.1 And where on a wife swearing articles of the peace against her husband, it appeared from other collateral motions and the defendant's affidavit, that she was insane and suffering from delusions, the application was at once dismissed.2

Not only is an applicant who acts falsely and maliciously liable to indictment for perjury, but he is also liable to an action for maliciously causing the arrest or maliciously causing the defendant to be bound over. And in such action the injured party need not, as in other cases of action for malicious prosecution, prove that the decision of the justices was in his favour, for a result of that kind is not in such a case possible.3

How long a party may be imprisoned for not giving security of the peace.-It may be asked how long a justice may consign a person to prison for not giving securities for the peace, for it is easy to see that this may be used as a means of imprisoning for life. Some of the old authorities, such as Dalton and others, expressly said, that a justice could bind a party during his life. But Hale was thought to have interpreted the statute, 34 Edward III., which authorised justices to bind malefactors to their good behaviour, as not meaning such binding to be perpetual, but only till the time of trial arrived. The point, however, having been reviewed on the authorities, the court in 1819 held that Hale was speaking only of persons charged with offences and waiting for trial; and that in other cases, where

1 R. v Parnell, 2 Burr. 806; R. v. Mallinson, 16 Q. B. 367. 2 R. v Mackenzie, 3 Burr. 1922. 3 Stewart v Grosnet, 7 C. B. N. S. 191.

no charge is pending, it was the inherent power of justices of the peace to bind persons for a fixed term, and the reason given was, because it saved the expense and trouble of such party attending at quarter sessions, and allowed the matter to be considered at intervals.1 In the case of O'Connell, the defendant was ordered to enter into a recognisance with sureties, conditioned to keep the peace and be of goodbehaviour "for seven years next after the acknowledgment thereof." Tindal, C. J., thought that as the defendant could instanter enter into the recognisance, there was no illegality in an order for such a recognisance to commence after a term of imprisonment which was itself uncertain, as being dependent on the payment of a fine. But Lord Campbell thought such a judgment was bad, as tending to perpetual imprisonment, and that a sentence should be so framed, that the defendant, after being in custody during the time for which the recognisance was given, might be restored to liberty.2

her

In cases where husbands subjected their wives to cruelty, it had been usual to bind the husband over for one year. But when Mr. Bowes, in 1787, maltreated his wife, the Countess of Strathmore, by getting armed men to carry off to Strickland Castle, where he imprisoned her several days, till she obtained a habeas corpus, the Court of Queen's Bench then, as it was not a first offence, bound him over for fourteen years, himself in 10,000l. and two sureties in 5,0002. each. It was afterwards complained that such length of time was oppressive, for any conceivable remedy by wife against husband could be prosecuted within one year. The court, while incidentally assuming that they had no doubt of their power being unlimited and enduring so long as public justice required, yet yielded to this reasonable complaint, and consented to reduce the term to two years.3 In a later case the court held, that a justice cannot legally commit a man, "till he find sureties," for his finding them may, owing to no fault of his, be simply impossible.

It has at length been enacted by statute that one justice of the peace shall not bind over persons to keep the peace for more than twelve calendar months.5 And though no

1 Willes Bridges, 2 B. & Ald. 278. Wilkes v R., Wilmot's notes, 322. 2 O'Connell v R., 11 Cl. & F. 407. 3 R. v Bowes, 1 T. R. 696. 4 Prickett v Gratrex, 8 Q. B. 1020; 2 New Sess. C. 429. & 17 Vic. c. 30, § 3.

5 16

limit has yet been put to the power of two or more justices or of the Superior Court, this indication of opinion by the legislature will no doubt be followed as a general rule by all courts in other cases. At the expiration of the time, whatever it is, justices have no power to insist on further extending it on the original complaint; at least the court wisely doubted this in 1787.1 Any such power of indefinite imprisonment for such a cause may be easily abused, and the genius of our law is now settled against imputing to any man a general disposition to set all law at defiance, which is the real foundation of this somewhat arbitrary power, which has been so long confided to courts. As all conceivable crimes and wrongs can be prosecuted and a remedy obtained within a year or near it, there never can in any case be a sound reason for extending imprisonment on this ground beyond one year. It is also to be noticed, that though it is now in the power of courts, when a man is convicted of an indictable felony or misdemeanour under the Criminal Consolidation Acts, to order him, in addition to the ordinary punishment, to enter into recognisance and find sureties to keep the peace, yet no person can be imprisoned under that power for more than one year.2

Mode of arresting and binding over a party to security of the peace. When the justices have issued their peacewarrant or warrant to arrest the party complained against, it must be addressed to and executed by the constable named therein, or it may be addressed to the sheriff, who may direct one of his sworn officers to execute it. The officer, in either case, may seize the party wherever the latter is found, and may even break into the party's or a stranger's house to apprehend him; but before doing this, the officer must first give notice of the charge to the person in occupation and request admittance. If the officer is not a sworn and known officer, he must be appointed by a precept in writing from the sheriff. When the arrest is made, the officer must, without unreasonable delay, convey the party (unless indeed such party willingly accompany the officer) to the justice, who issued the warrant, or some other justice, if the warrant so specifies. It is the officer's duty

2 24 & 25 Vic. c. 96, § 117; c. 97, c. 100, § 71. 3 Hawk. P. C. c. 60,

1 R. v Bowes, 1 T. R. 696. § 73; c. 98, § 51; c. 99, § 38; §§ 11, 13; 2 Hawk. P. C. c. 14, §§ 2, 3.

to give facilities to the party to comply with the requirement of the law without unnecessary restraint, though he is not obliged to go up and down seeking for sureties. But the officer cannot of his own accord reconvey the party to prison for refusal to find sureties, for such refusal ought to be made to the justice himself. A fresh warrant may then be issued, reciting such refusal and the reason of the imprisonment.2

If the party prefer, he may go voluntarily before a justice and enter into recognisances, which will have the effect of superseding any warrant that may have been issued; and it will be the duty of the justice who issued the warrant to make out a supersedeas, or to grant a liberate, if necessary, for his discharge from gaol. At one time turbulent persons used to go voluntarily and bind themselves over and procure their own sureties, who on request superseded the recognisances and caused confusion, and affronted the justices of their locality. Hence by statute, in 1623, it was, by way of check, provided that such supersedeas must be moved for in open court.*

The usual practice is for the justice to bind over the defendant only, until the next quarter sessions, when that court may order the party to be discharged, or enter into further recognisance. And the recognisance must be certified to the next quarter sessions, there to remain of record. When sureties enter into the recognisance, they bind their executors and administrators as well as themselves, so that in the event of the death of one of them the recognisance remains in full force. Yet if a surety become bankrupt, or fall into poverty, the party may be called upon to enter into a new recognisance.

Effect and binding force of the recognisance. The effect of the recognisance on the defendant and his sureties is, that they must observe the condition, and see to its being strictly complied with; otherwise the recognisance may be forfeited. To fail wilfully in appearing at the time stated;? to commit an act of violence or to renew a threat of

c. 8.

Dalton, J. P.

4 21 Jas. I. 6 Dalton,

1 Dalton, c. 118. 2 1 Hawk. P. C. c. 60, § 12; c. 118; 2 Hale, P. C. 112. 3 1 Hawk. c. 60, § 14. 5 3 Hen. VII. c. 3; 1 Hawk. P. C. c. 60, § 18. c. 119, p. 278. 7 Lamb. J. P. 78; Crompt. 125; 3 Hen. VII. c. 3; Dalton, c. 120; 1 Hawk. c. 60, § 18.

assault to the complainant or to others; or to be convicted of any offence which in itself is a breach in law,2 will be a ground of forfeiture; though mere words of anger or of slander, such as calling one a knave or rascal, will not be so construed.

But there are many things which the party bound by recognisance may do, which are no breach of the recognisance, though they savour of violence or physical force. In order to understand what amounts to a breach, it is necessary to remember that the recognisance is substantially a covenant with the crown not to do violence to a particular person named, or do anything to the terror of the public generally. Hence it is not inconsistent with this main object, that the party may commit a trespass on another's lands; or wrongfully seize another's goods; or even steal another man's goods, provided no person is put in terror thereby. All these wrongful acts may be punished by course of law in other ways, but nevertheless are no breach, and cause no forfeiture of the particular recognisance, inasmuch as they are not necessarily connected with the special engagement it embodies. The mode of forfeiting a recognisance entered into before justices is prescribed by statute; and the result is, that the sureties and the defendant must ultimately pay the money thereby secured as a debt to the queen; and it may be recollected that imprisonment for a crown debt is not yet abolished.

4

Getting recognisance of the peace discharged.-As the object of a recognisance is to secure a sum of money to the sovereign, should violence be done to some individual, if the sovereign or the complainant die, the recognisance becomes void, and the party, if in prison, is entitled to his discharge. But the complainant has no power to release the defendant, the contract being one entered into with the sovereign alone, and as the sovereign merely represents the subjects, no pardon or release by the sovereign will amount to a discharge.5 The recognisance used to be discharged, however, by forfeiture. It may also be discharged by having been fully obeyed during the prescribed period. Nevertheless it is the duty of the party bound to appear

1 1 Hawk. c. 60, §§ 20, 21. 2 16 & 17 Vic. c. 30, § 2. 3 3 Geo. IV. c. 46; 4 Geo. IV. c. 37; 16 & 17 Vic. c. 30. 4 1 Hawk. P. C. c. 60, § 17; Dalton, c. 118.

5

1 Hawk. P.C. c. 60, § 17.