the request of any subject, upon due cause shewn, provided such demandant be under the king's protection; for which reason it has been formerly doubted, whether Jews, Pagans, or persons convicted of a præmunire, were entitled thereto (ƒ). Or, if the justice is averse to act, it may be granted by a mandatory writ, called a supplicavit, issuing out of the Court of King's Bench or Chancery; which will compel the justice to act, as a ministerial and not as a judicial officer: and he must make a return to such writ, specifying his compliance, under his hand and seal (g). But this writ is seldom used: for, when application is made to the superior courts, they usually take the recognizances there, under the directions of the statute 21 Jac. I. c. 8. And indeed a peer or peeress cannot be [*254] bound over in any other place than the courts of King's Bench or Chancery: though a justice of the peace has a power to require sureties of any other person, being compos mentis and under the degree of nobility, whether he be a fellow justice or other magistrate, or whether he be merely a private man (h). Wives may demand it against their husbands or husbands, if necessary, against their wives (i). But feme coverts, and infants under age, ought to find security by their friends only, and not to be bound themselves: for they are incapable of engaging themselves to answer any debt; which, as we observed, is the nature of these recognizances or acknowledgments (4). charged or for means. 8. A recognizance may be discharged, either by the demise and may be disof the king, to whom the recognizance is made; or by the feited by various death of the principal party bound thereby, if not before forfeited; or by order of the court to which such recognizance is certified by the justices, (as the quarter sessions, assizes, or King's Bench,) if they see sufficient cause (5): or in case (4) But a person of the age of sixteen years is competent to enter into a recognizance conditioned to prosecute on a criminal charge; and if it be forfeited and estreated, the court will not discharge it, unless a sufficient case for relief be made out; Ex parte Williams, M'Clel. 483; 12 Price, 673. (5) By 3 Geo. IV. c. 46, § 5, if any person on whose goods and chattels any sheriff, &c. shall be authorized to levy any forfeited recognizance, or sum of money to be paid in lieu or satisfaction thereof, shall give security to such sheriff, &c. for his appearance at the next general or quarter sessions, then and there to abide the decision of the court, and also to pay such forfeited recognizance or sum of money to be paid in lieu or satisfaction thereof, together with all such expences as shall be ordered and adjudged by the court; it shall be lawful for such sheriff, &c., and he is authorized and required, to discharge such person so giving such security out of custody: provided, that in case such party so giving security shall not appear, in pursuance of his undertaking, it shall be lawful for the court forthwith to issue a writ of distringas and capias, or fieri facias and capias, against the sureties of the person so bound. And by § 6, the court of general or quarter sessions, before whom any person committed, or bound to appear, shall be brought, is authorized and required to inquire into the circumstances of the case, and shall, at its discretion, be empowered to order the discharge of the whole of the forfeited recognizance, or sum of money paid, or to be paid, in lieu or satisfaction thereof, or any part thereof; and such order shall be made in the form or to the effect of the schedule marked (C) to the Act annexed, and shall be signed by the clerk of the peace, which order shall be a discharge to such sheriff, &c., on the passing of his accounts at the Exchequer; and in all cases where the party shall have been he at whose request it was granted, if granted upon a private account, will release it, or does not make his appearance to pray that it may be continued (j). (j) 1 Hawk. P. C. 129. lodged in gaol by such sheriff, &c., the justices are empowered either to remand such party, or to order such party to be discharged; and such order shall be a sufficient discharge to such sheriff, &c., on the passing of his accounts at the Exchequer; and it shall be lawful for the court to award such costs to be paid by either party as to them shall seem just. By 4 Geo. IV. c. 37, the justices shall insert in any following roll, all fines, forfeited recognizances, &c. which have not been levied, and the sheriff shall detain the writs, which are to continue in force; where the sheriff goes out of office, he shall deliver such rolls and writs to his successor, who is to execute them; in all cases where the party is in another county, or has goods there, the sheriff shall send a warrant and a copy of the writ to the sheriff of such other county, who is to levy and make return in thirty days after receipt of such warrant; and the sheriffs and clerks of the peace shall make returns to the treasury. The court of Exchequer has now no jurisdiction over recognizances forfeited at quarter sessions, whereof the yearly duplicate or certificate required by 3 Geo. IV. c. 46, § 14, has been delivered into the court. Therefore, where a recognizance for appearing and preferring an indictment at a quarter sessions, had been forfeited, and certified into the court of Exchequer; and the forfeiture had been levied by the sheriff, pursuant to 3 Geo. IV. c. 46; the court held, that they were not authorized to order the discharge of the recognizance, although the justice, before whom the recognizance had been taken, did not comply with § 4 of the statute, by giving the party bound notice of the time and place at which the sessions were to be held; and the party had applied for relief at the ensuing quarter sessions, which was refused. The court of Exchequer has still jurisdiction over penalties, forfeitures, &c., occurring at assizes; Rex v. Hankins, 3 D. & R. M. C. 148. But see Pellew's case, 13 Price, 299; M'Clel. 111. The duplicate of fines, issues, amerciaments, and forfeited recognizances, required to be delivered into the Exchequer by the clerk of the peace, under 3 Geo. IV, c. 46, § 14, must be delivered in on oath. Ex parte Hodgson, 1 M. & R. M. C. 346; 2 Y. & J. 142. "The enactment in 7 Geo. IV. c. 64, § 31, does not appear," says a learned writer on criminal law, "to make any alteration in the practice of the sessions as to moving to respite or discharge recognizances before they have become forfeited, as it only applies to cases of recognizances which have been forfeited; nor does it appear to affect the discretionary power given to the sessions to remit the forfeiture, under the statute 3 Geo. IV. c. 46, § 6." Car. C. L. 130. But quære how far the sessions have such discretionary power. The court of King's Bench have decided that under the 3 Geo. IV. c. 46, the sessions are empowered to discharge a forfeited recognizance in those cases only where the party has been committed to gaol, or has given security to appear at the sessions: and, therefore, that where a party, whose recognizance had become forfeited for not appearing to an indictment, and against whom process had issued, paid to the sheriff the sum mentioned in the recognizance, in order to prevent a sale of his goods, and the sessions afterwards by an order mitigated the recognizance to a small Thus far what has been said is applicable to both species of recognizances, for the peace, and for the good behaviour: de pace, et legalitate, tuendá, as expressed in the laws of king Edward. But as these two species of securities are in some respects different, especially as to the cause of granting, or the means of forfeiting them, I shall now consider them separately and first, shall shew for what cause such a recognizance, with sureties for the peace, is grantable; and then, how it may be forfeited. bound over to [255*] 1. Any justice of the peace may, ex officio, bind all those who may be to keep the peace, who in his presence make any affray; or keep the peace. threaten to kill or beat another; or contend together with hot and angry words; or go about with unusual weapons *or attendance, to the terror of the people; and all such as he knows to be common barretors; and such as are brought before him by the constable for a breach of the peace in his presence: and all such persons, as, having been before bound to the peace, have broken it and forfeited their recognizances (k). Also, wherever any private man has just cause to fear Who may dethat another will burn his house, or do him a corporal injury, the peace. by killing, imprisoning him, or beating him, or that he will procure others so to do, he may demand surety of the peace against such person: and every justice of the peace is bound to grant it, if he who demands it will make oath, that he is actually under fear of death or bodily harm; and will shew that he has just cause to be so, by reason of the other's menaces, attempts, or having lain in wait for him; and will also (k) 1 Hawk. P. C. 126 mand surety of sum, and directed the sheriff to discharge the residue from the recognizance, such order was void; and that the party was not entitled to recover from the sheriff the sum which the sessions had ordered to be discharged; Haynes v. Hayton, 7 B. & C. 293; 2 C. & R. 621. Where a defendant, indicted at the quarter sessions for a conspiracy, had entered into insufficient recognizances, it was held that the court of King's Bench, on a removal by certiorari, might discharge them on motion, and compel him to enter into better secu- By what means these recognizances may be forfeited. farther swear, that he does not require such surety out of malice or for mere vexation (). This is called swearing the peace against another: and, if the party does not find such sureties, as the justice in his discretion shall require, he may immediately be committed till he does (m) (6). 2. Such recognizance for keeping the peace, when given, may be forfeited by any actual violence, or even an assault, or menace, to the person of him who demanded it, if it be a special recognizance: or, if the recognizance be general, by any unlawful action whatsoever, that either is or tends to a breach of the peace; or, more particularly, by any one of the (1) I Hawk. P. C. 127. (m) Ibid. 128. (6) A justice of the peace is authorized to require sureties of the peace for a limited time, according to his discretion, and need not bind the party over to the next sessions only; Willes v. Bridger, 2 B. & A. 278. And the court of king's bench will not interfere with the discretion of magistrates in taking security for keeping the peace; Rex v. Tregarthan, 2 Nev. & Man. 379. As all persons present, countenancing a prize fight, are guilty of an offence, whenever a prize fight is expected the magistrates ought to cause the intended combatants to be brought before them, and compel them to enter into securities to keep the peace till the assizes or sessions; and, if they refuse to enter into securities, to commit them; Rer v. Billingham, 2 C. & P. 234. An attachment upon articles of the peace is bailable before justices of the county; Rex v. Bomaster, 1 W. Bl. 233. Articles of the peace ought to be exhibited in the neighbourhood, that the security may be given there; Rex v. Waite, 2 Burr. 780; 2 Ld. Keny. 511. Where a person exhibits articles of the peace, and swears that his life is in danger, the truth of the facts cannot be controverted; Rex v. Doherty, 13 East, 171; Lord Vane's case, Id. 172, n. There ought to be a reasonable foundation on the face of the articles, to induce a fear of personal danger, before the court will require sureties of the peace; Id. ibid. A wife may sue a supplicavit in chancery against her husband, and to find sureties not to beat or ill treat her, aliter quam causá regiminis et castigationis; Id. Ibid. Upon articles of the peace exhibited, the court have power of requiring bail for such a length of time as they shall think necessary for the preservation of the peace, and are not confined to a twelvemonth; Rex v. Bowes, 1 T. R. 696. Where articles of the peace appeared malicious and untrue, the court stayed process on them, and committed the exhibitant for perjury; Rex v. Parnell, 2 Burr. 806, and see 3 Burr. 1922. The court will not receive articles of the peace, if the parties live at a distance in the country, unless they have previously made application to a justice in the neighbourhood; 2 Burr. 780. And if the court do receive them, the secondary may indorse the attachment in the form required, and order a justice of the county to take the security; id. 1039; 1 Bla 233. It has been held that the affirmation of a quaker is not sufficient on which to grant surety of the peace; Rex v. Grun, 1 Stra. 527; 12 Mod. 243; but now that the evidence of quakers is admissible on affirmation in all criminal cases, (9 Geo. IV. c. 32, § 1), the rule would not, it is presumed, hold good, |