Sayfadaki görseller
PDF
ePub

queen, and the other half, with full costs, to any one who will sue in either of the courts at Westminster (m). The like penalty is imposed on the clerk of the petty sessions holden for allowing the lists, omitting to give notice of the holding of such session to the parish officers; and on the sheriff or under-sheriff making an undue alteration in the jurors' book, or refusing to deliver over that book to the succeeding sheriff within ten days after he shall be sworn into office (n). High constables neglecting within fourteen days after their receipt of the warrant of the clerk of the peace to issue their precepts to the parish officers, with such number of proper forms of returns as they shall, bond fide, deem sufficient, or to deliver such additional number as may be required within three days of a demand, if they have them, or forthwith to apply to the clerk of the peace if they have them not; or omitting, after due notice, to attend at the petty sessions, to receive lists tendered to them by the justices, or to attend and deliver them at the ensuing quarter sessions, or altering any list after receiving it,-are subjected to a penalty not exceeding 101. nor less than 40s., at the discretion of the justice before whom they may be convicted (o). Every churchwarden or overseer neglecting (unless prevented by sickness) to assist in making out his list, so that it may not be ready; or wilfully omitting any proper, or inserting any improper name, or taking any money or reward for omitting or inserting any name whatsoever, or wilfully omitting or inserting a wrong description; or omitting, in case the forms of returns supplied be insufficient, to apply for more, to the delay of the list; or neglecting to fix a copy of the list, duly signed, and with the subjoined notice, on the principal door of each place of worship; or refusing to allow to an inhabitant inspection of the list, or a true copy, at any reasonable time within the prescribed three weeks; or refusing to produce the list at the petty sessions, or to answer questions respecting it there on oath; or to attend such sessions or an adjournment; or refusing to allow the petty sessions, or any justice of the peace, on due request, to inspect or make extracts from any poor rate in his custody, for the purpose of correcting the lists, is made liable to a like penalty, not more than 107., nor less than 40s., at the discretion of the convicting justice (p). And the justice before whom any parish officer shall be convicted of a wrongful insertion or omission in the list, is required to certify the error to the clerk of the peace, who is to correct his own list accordingly, and give notice to

(m) 6 G. IV. c. 50, s. 46.

(n) Id. s. 51.

(0) Id. s. 44.
(p) Id. s. 45.

the sheriff or under-sheriff, who is to make a similar correction in the jurors' book (q).

Juries in Cities and Boroughs having separate Jurisdiction, Civil or Criminal.]-The rule for qualification, fixed by the 6 G. IV. c. 50, and the regulation respecting the providing lists, is not extended to liberties, franchises, cities, and boroughs, whether counties of themselves or not, which possess separate jurisdiction, civil or criminal; but in such places the panels are to be prepared, as directed by 5 & 6 W. IV. c. 76 (r); except that no man is to be returned to serve at the London sessions who is not a householder or the occupier of a shop, warehouse, counting-house, chambers or office, for the purpose of trade and commerce within the city, having lands, tenements or personal estate of the value of 1007. (s).

SECTION IX.

OF PROSECUTORS, DEFENDANTS, AND WITNESSES: THEIR ATTENDANCE, AND APPEARANCE AT SESSIONS.

It was thought advisable to substitute the present title for that of "Suitors of the Court," adopted from Mr. Dickinson in former edi. tions. That gentleman used it as comprising all who have some duty or business to perform; thus comprehending all prosecutors, whether compelled to appear or attending of their own free will; all parties bound to appear and answer to charges; and all who are required by recognizance or subpoena to give evidence as witnesses.

Mode of Prosecution.]-It is said generally that all offences shall be prosecuted at the sessions by presentment, information, or indictment (t). But when jurisdiction is given to the session to hear and determine, and it is not expressly said "by information," the offence must be prosecuted by indictment only (u).

Of Prosecutors.]-As all prosecutions are conducted in the name of

(g) 6 G. IV. c. 50, s. 45.

(r) Sect. 121, 122, 123, post.

(8) 6 G. IV. c. 50, s. 50. This seems still in force, notwithstanding 5 & 6 W. IV. c. 76, s. 123. See the authorities collected ante, p. 112.

(t) Com. Dig. Justices of Peace (D 9). See the commission, ante, p. 65.

This clause does not make them justices of "oyer and terminer," within those general words in statutes, for that is a distinct commission of another nature, 2 Hale, 44, and see post, Index, tit. Middlesex.

(u) Shipman v. Herbert, 4 T. R. 109. See R. v. Proby, 1 Ld. Ken. 250.

the crown, and for the public security and benefit, any person may lawfully prefer an indictment for a misdemeanour or felony; but it is not usual for parties thus to interfere unless they are individually aggrieved by the offence, or sustain some office which renders it peculiarly incumbent on them-to bring the offender to justice. A criminal prosecution being instituted in the name of the crown for the furtherance of public justice, and to punish violations of the peace, does not abate with the death of the prosecutor, like a civil action, even though the injury be chiefly of a personal kind, as an assault or a libel (v) ; and any engagement made, or security given, by a defendant to a prosecutor without leave of the court, by way of compromise, is invalid (w).

Recognizance to prosecute or give Evidence.]-When a charge is made before a magistrate or coroner, he may bind over the party making the charge to appear at the sessions to prosecute and give evidence, and also all who can give material evidence; and, on their obstinate refusal, may commit them for their contempt therein. This power is virtually included in his commission, and by necessary consequence from 7 G. IV. c. 64, passed in lieu of the acts of P. & M. (x). A married woman is incapable of entering into a recognizance; but if she altogether refuse to appear at the sessions, and to find sureties for such appearance, when such appearance is essential to the conviction of an offender, she may be committed (y). The usual course, where a married woman is a material witness, is to bind over her husband, or other competent person, as surety for her appearance. Infancy seems no objection to being thus bound ().

The following is the form of the recognizance to be adapted to the case of a prosecutor or witness:

County of

to wit.

[ocr errors]

Be it remembered, that on the day of in the year of Jour Lord —A. B. of in the county of — labourer, [or as the proper addition is] came personally before me, W. D., esquire, one of her majesty's justices of the peace in and for the county of aforesaid, and ac

knowledged himself to be indebted to our Sovereign Lady the Queen in the sum of ——l. of good and lawful money, to be levied of his goods and chattels, lands and tenements, by way of recognizance to her said majesty's use, upon condition that if

(v) R. v. Ellers, 1 Wils. 222, indictment for insulting a justice in the execution of his duty.

(w) Edgcombe v. Rodd, 5 East's R. 294. See post, Chap. VII.

(x) 2 Hale, 52, 282; 1 Hale, 586.— Semble, this power exists only as to

persons refusing to give evidence as to charges against persons then under examination, R. v. Cropper, 8 D. & R. 166; 4 D. & R. Mag. Cas. 42.

(y) Bennett v. Watson, 3 M. & S. 1. (z) Exp. Williams, M'Clell. 493; 13 Pri. 670.

the above bounden A. B. shall personally appear at the next general [or general quarter] session of the peace, to be holden in and for the said county at then and there prefer a bill of indictment against C. D. late of

[ocr errors]

and

hatter [or as

the proper addition is], and shall then and there give evidence [or, in the case of a witness only, shall give evidence] concerning the same to the jurors, who shall inquire thereof on the part of our said Lady the Queen, and not depart without leave of the court, then this recognizance to be void, otherwise to remain in full force. Taken and acknowledged before me the day and year aforesaid. W. D. (2). The following is the form of the recognizance taken from the party accused and his sureties, when he is admitted to bail :

[blocks in formation]

in the county of
in the county of

labourer,

shoe

aforesaid, and

C. D. the elder, and C. D. the younger, both of makers, personally came before us, W. D., esq., and the Rev. D. P. clerk, two of her majesty's justices of the peace in and for the county of severally and respectively acknowledged themselves to be indebted to our Sove. reign Lady the Queen in the manner and form following, that is to say, the said A. B. in the sum of twenty pounds of good and lawful money, and the said C. D. the elder, and C. D. the younger, in the respective sums of ten pounds each, of like good and lawful monies, to be respectively levied of their goods and chattels, lands and tenements, to the use of our said Sovereign Lady the Queen, her heirs and successors, if the said A. B. shall make default in the performance of the condition under-written.

Now the condition of this recognizance is such, that if the above bound A. B. do and shall personally appear before the justices of our said Sovereign Lady the Queen, assigned to keep the peace in and for the said county of — and also to hear and determine divers felonies, trespasses, and other misdemeanours within the said county committed, at the next general [or general quarter] session of the peace to be holden in and for the said county of

at

in the same, then and there to answer our said Sovereign Lady the Queen, for and concerning the felonious taking and stealing a certain [mentioning the article] the property of X. Y., wherewith the said A. B. stands charged on suspicion before [the justice who committed the offender], and do and receive what by the court then and there shall be enjoined him, and shall not depart the court without leave or license; then the above written recognizance shall be void and of none effect, otherwise to remain in full

force.

Taken and acknowledged as above written before us,

W. D.
D. P.

Recognizance to appear, how to be attested.]-To such recognizances the justices are to subscribe their names respectively, without sealing them; but the persons bound, and orally acknowledging themselves before the magistrates to be so bound, need not set their names to them, for they are witnessed only by the record, and not by the party's seal (a). They are matter of record, so soon as they are taken

(z) See R. v. St. Alban's (Justices), 8 Ad. & E. 932. (a) Dalt. J., c. 176.

and acknowledged, although not made up, but only entered in the books of the magistrate thus, e. g. “A. B. in 40l. to appear, &c." (b).

Recognizance to appear to be certified to the next Session.]-" And every justice that shall take any recognizance for the keeping of the peace, shall certify the same to the next session, that the party bound may be called; and if he make default, the same default shall be recorded, and the recognizance, with the record of the default, be sent and certified into the chancery, king's bench, or exchequer" (c).

Issuing Warrant, and arresting for Treason, Felony, and Breach of Peace, before Indictment found.]—It is now clearly settled, contrary to the opinion of Lord Coke, that in every case of treason, felony, and actual breach of the peace, a magistrate may issue his warrant to bring the party before him, and may, after examination, commit or bind him over to appear, although no indictment has been found against him (d); and notwithstanding some doubt entertained in more modern times, it may now be taken as law, that in every case of misdemeanour indictable at the sessions, and which subjects the offender when convicted to corporal punishment, he may be arrested and held to bail in the first instance; and this has been holden proper in cases of seditious and blasphemous libel, as tending to breach of the peace (e). There are some misdemeanours for which this course is expressly authorized, as keeping a disorderly house (ƒ), and obtaining money under false pretences (g); but it is not usual nor proper to arrest the party accused before an indictment is found against him, except in these instances, and in cases of felony, breach of the peace, or misdemeanours directly tending to produce great and immediate evil, or involving an attempt to commit a felony, unless there is strong reason to believe that the party accused intends to fly from justice. It is not usual for a justice to issue a warrant on a charge of perjury, conspiracy, or

(b) Dalt. c. 168; Staundford's Pl. Cor. 77 a; Barl. Recog. 454; but see Glynn v. Thorpe, 1 B. & Ald. 153. As to the forms of recognizances, and the notice to be given to sureties before entering into them, see 3 G. IV. c. 46, s. 4. (e) 3 H. VII. c. 1. And see 7 G. IV. c. 64, s. 2, 3, 4, ante, p. 9, 10. Persons under recognizance who in consequence either of bills not having been preferred or found, may not be called on to answer or give evidence, must see their appearance recorded, so as to enable the court to order the recognizance to

be cancelled; or their attendance is no attendance at all, and they have “departed without leave of the court," contrary to their recognizances.

(d) 2 Hale, 72, 108, 110; Hawk. B. 2, c. 13, s. 18.

(e) Butt v. Conant, 1 Brod. & Bingh. 548.

(f) 25 G. II. c. 36, s. 6.

(g) 30 G. II. c. 24, s. 16. Quære, if in force since the repeal of so much of the act as relates to obtaining by false pretence or pretences any property as therein mentioned by 7 & 8 G. IV. c. 27.

« ÖncekiDevam »