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II. Nature of the Recognizance and Commitment. The recognizance may be either to appear at the sessions to answer the charge, and in the meantime to keep the peace; or for a definite period, as six months, a year, &c. (Prickett v. Gratrer, 15 L. J. (N. S.) M. C. 145); but the defendant cannot be convicted of an assault as well (if one was committed at the time) against the conplainant's protest (Reg. v. Deny, 20 L.J. (N. S.) M. D. 189); but if a complaint for an assault is dismissed and the justices think from the evidence such a precaution is necessary, they may require tha defendant to keep the peace (Ex parte Davis, 24 Law T., N. S. 547) If sureties are also required, and the defendant is not prepared with them, the case should be adjourned to admit of his procuring this attendance. The justice or justices should fix the amount of the recognisance, having regard to the condition in life of the parties and the circumstances of the case, or, as Williams, J., said, in Prickett v. Gratrex, supra, “the nature of the commitment shoux at all times bear some relation to the quantity and quality of th: offence.” As these cases are within the operation of the 11 & ": Vict. c. 43, a minute of the order to enter into recognizance or find sureties should, before committal, be served on the defendant as required by sect. 17 (see Vol. I. p. 194). If sureties are found, it is usual, though not necessary, since the repeal of 3 Geo. 4, c. 46, S. 4, by 11 & Vict. c. 42, s. 34, to give the parties bound notice of their recognizance, signed by the justice. In default of entering into the recognizance, or finding surety (I sureties, or both, the party is committed to the common gadi (or house of correction, Ex parte Aston, 13 L. J. (N. S.) M. C. 3 for the time required, unless he in the meantime enter into recognizance with or without the required sureties [Forms of Recognizances, &c. and Commitment, Nos. 13–15, pp. 958, 939, Oks “Formulist,” 6th ed.];—but although it has been held, that it is not necessary to mention in the commitment the sum for which the sureties are to be bound (Willes v. Bridger, 2 B. & Ald. 278; Pridit v. Gratrex, supra), it is usually done in order that a visiting justice of the prison, or another, may take the recognizances in tár amount adjudged. Infants and wives must find security by their friends, and not be bound themselves. The defendant is not entitled to copies of the depositions taken in these cases (Ez pert Humpreys, 19 L. J. (N. S.) M. C. 189). The Court of Queen's Bench cannot interfere to quash a recognizance (Reg. v. Grerek, 8 L. T., N. S. 311).
III. Discharge of Defendant. If after committal the defendant find sureties (which he can do before any one justice of the county, &c.) a liberate is grantei
conditional upon his entering into his own recognizance at the gaol, if the recognizance of the sureties are taken at a distance from it. [Form, No. 16, p. 959, Oke's “Formulist,” 6th ed.]
IV. Complaint for Sureties for Good Behaviour. Legal authorities are not agreed as to all the offences for which 34 Edw. 3, this surety may be required or how the statute is to be applied. c. 1. Hawkins says (p. 496, 8th edit. by Curwood)—“It seems the better opinion, that no one ought to be bound to the good behaviour for any rash, quarrelsome or unmannerly words, unless they either directly tend to a breach of the peace or to scandalize the government, by abusing those who are entrusted by it with the administration of justice, or to deter an officer from doing his duty; and, therefore, it seems, that he who barely calls another rogue, or rascal, or teller of lies, drunkard, &c. ought not for such cause to be bound to the good behaviour.” 183 The editor of the 29th edit. of Burn's Justice (pp. 1217, 1219), after citing the 34 Edw. 3, c. 1, the only statute on the subject, and the opinions of several old writers, says, “It is become difficult to define how far it shall extend, and where it shall stop,” and that in applying it justices “cannot exercise too much caution and good advisement” (Id. 30th ed. p. 762). Later, another writer says, that it is advisable for justices, even at sessions, to refrain from acting under this statute of Edw. 3, "except in cases where a man is convicted of some offence directly against the peace, under circumstances from which it reasonably may be inferred that he will be again guilty of the same or the like offence, as soon as he has an opportunity, unless he be bound over to his good behaviour.” (See, however, Re Dunn, 10 L. J. (N. S.) M. C. 29, and Haylock v. Sparke, 22 L. J. (N. S.) M. C. 72; 20 Law T. 276), in which latter case Lord Campbell, C. J., said, —“Undoubtedly it appears that mere insulting language, though contra bonos mores, is not such an offence in respect of which justices would be authorized in taking security and mainprize (Bagg's Case, 4 Rep.); but, regarding the authorities, beginning with 34 Edw. 1; Hawk. P. C. L. c. 23; Com. Dig. • Forcible Entry,' L. 25; Dalton's J. P. c. 126; R. v. Shuckburgh, 1 Wils. 29; R. v. Wilkes, 2 Wils. 151, we have come to the conclusion that cases of aggravated defamation may well require sureties for good behaviour.”
V. How Recognizances Estreated. When taken by a Court of Summary Jurisdiction.] See ante, p. 170 (42 & 43 Vict. c. 49, s. 9 (2)).
183 In the metropolis this is an offence punishable with a penalty. See 2 & 3 Vict. c. 47, s. 54, sub-s. 13; 2 & 3 Vict. c. xciv. s. 35, sub-8. 13.
16 & 17 Vict. At Quarter Sessions.] By 16 & 17 Vict. c. 30, s. 2, "where any c. 30.
recognizance to keep the peace or to be of good behaviour is entered into by any person, as principal or surety, before the court of general or quarter sessions of the peace of any county, riding, division, city, borough or place, &c.—it shall be lawful for any such court of general or quarter sessions of the peace as aforesaid, upon application made to such court, to declare such recognizance to be forfeited, upon proof of a conviction of the party bound by such recognizance of any offence which is in law a breach of the condition of the same;—184 and upon further proof that a notice in writing, signed by the person seeking to put such recognizance in force, has, seren clear days before the commencement of such sessions, been personally served upon or left at the usual place of abode of the party, or each of the parties (if more than one) who entered into such recognizances, that an application will be made to the said general or quarter sessions that the said recognizance shall be declared forfeited,--and if such recognizance shall be declared forfeited all such proceedings shall be had thereon as in the case of a recognizance forfeited at such court of general or quarter sessions, -and all the provisions of the act of the 3 Geo. 4, c. 46, and of the act of the 4 Geo. 4, c. 37, applicable to a recognizance so forfeited at such court shall apply to a recognizance which shall, upon such application and proof as hereinbefore mentioned, be declared to be forfeited. 185 [Forms, Nos. 17, 18, 19, Oke's “Formulist," 6th ed. p. 960.]
VI. Surrender of Principal by Bail. It does not appear clear that the sureties in these cases can surrender their principal as in cases where the recognizance is for the party's appearance on an appointed day.
TELEGRAPHS. Compensation for damage by works to be determined as under 26 & 27 Vict. “Lands Clauses Act, 1845": (26 & 27 Vict. c. 112, s. 7). See c. 112.
“Lands Clauses Act,” ante, p. 1446.
Differences between the company and bodies having control of streets, &c., as to depth of telegraph, to be determined by two justices (s. 10).
The like as to alteration of streets (s. 15). Expenses of making good streets opened by company, recoverable as a penalty (s. 19).
Disputes between the company and occupiers as to position of telegraphs above ground, to be determined by two justices (s. 22).
184 Upon this point see 5 Bura's Justice, 29th ed. p. 1210; 30th ed. pp. 752, 762.
185 Process is issued to the sheriff to levy the amount, and in default of distress the persons bound are arrested (3 Geo. 4, c. 46, s. 2; 4 Geo. 4, c. 37, s. 1).
See 41 & 42 Vict. c. 76, s. 4, as to the settlement by police or 26 & 27 Vict. stipendiary magistrate of differences relating to a street or public c. 112. road.
Expenses incurred by board of trade in doing works authorized, recovered from the company as a penalty (s. 40). Through Post Office.] See 32 & 33 Vict. c. 73, ss. 10, 11.
32 & 33 Vict.
TITHES AND RENT-CHARGES. Recovery of Tithes from other Persons than Quakers.] By 7 & 8 7 & 8 Will
. 3, Will. 3, c. 6, ss. 1, 2, 6, small tithes, offerings, oblations and C. 6; 53 Geo. 3,
c. 127. compositions for small tithes, which have not been commuted for a rent-charge under the Tithe Commutation Act, 6 & 7 Will. 4, c. 71 (for tithes commuted are recoverable by distress as rent in arrear, 8. 81), and in amount (not exceeding 101., 53 Geo. 3, c. 127, s. 4] are only recoverable (5 & 6 Will. 4, c. 74; 4 & 5 Vict. c. 36), before two justices in petty session (neither of whom is patron of the church or chapel whence the said tithes arise, or in anywise interested in such tithes). 186 If not paid within twenty days after demand, upon the complaint of the rector (or under 7 Geo. 4, c. 15, and 11 & 12 Vict. c. 43, s. 10, Vol. I. p. 138, his attorney or agent, or the lessee of the rector), made within two years after the tithes become due and payable (7 & 8 Will. 3, c. 6, s. 6). 187 The justices make an order, and the amount is recovered by distress, if not paid for the space of ten days and upwards (Id. s. 3); and in default of distress, a commitment to prison for not exceeding three calendar months without hard labour, unless sooner paid (under 11 & 12 Vict. c. 43, s. 22, Vol. I. p. 228). [Forms, Nos. 1-4, p. 961, Oke's“Formulist,” 6th ed.] If the defendant insist on any prescription, &c., whereby he is freed from payment, the justices must forbear to give judgment (7 & 8 Will. 3, c. 6, s. 8). An appeal allowed (Id. s. 7; see Reg. v. Hall, 35 L. J.(N. S.) M. C. 251).
Recovery of Tithes from Quakers only.] On nonpayment by Quakers of tithes (or any customary or other rights, dues or payments belonging to any church or chapel, which of right by law and custom ought to be paid for the stipend or maintenance of any minister or curate officiating in any church or chapel, 1 Geo. 1, stat. 2, c. 6, s. 2], in amount not exceeding 501. (53 Geo. 3, c. 127,
186 7 & 8 Will. 3, c. 6, s. 1. By 7 Geo. 4, c. 15, in cities and towns where the justices are patrons of the living, the matter may be determined by two justices of the adjoining county, riding or division.
187 The 7 & 8 Will. 3, c. 6, does not extend to tithes in the city of London or the liberties thereof, or in any other city or town corporate where the same are settled by any act of parliament (s. 5).
7 & 8 Will. 3, s. 6), any [one, 53 Geo. 3, c. 127, s. 4) justice, on complaint of the c. 6; 53 Geo. 3,
parson, vicar, &c., may summon the parties to appear before two c. 127.
justices (Id.), neither of which justices is the patron of the church or chapel, or anywise interested in such tithes (7 & 8 Will. 3, c. 34, 8. 4), and the amount, with costs not exceeding 108. (s. 5), 188 is, upon an order, recovered by distress (s. 6); in default of distress, imprisonment not exceeding three calendar months, unless sooner paid (11 & 12 Vict. c. 43, s. 22, Vol. I. p. 228). It is only in this way that such tithes can be recovered (5 & 6 Will. 4, c. 74; 4 & 5 Vict. c. 36). An appeal is allowed to the next quarter sessions (7 & 8 Will. 3, c. 34, s. 7). Vide 6 & 7 Will. 4, c. 71, s. 84, as to
recovery of rent-charges from Quakers. 5 & 6 Vict. Contribution to a Rent-charge.] By 5 & 6 Vict. c. 34, s. 16, in c. 54,
case any land charged with one amount of rent-charge shall belong to two or more landowners in several portions, and the owner of any one of such portions, or his tenant, has paid the whole of such rent-charge, or any portion thereof greater than appears to him to be his just proportion, and contribution thereto is refused or neglected to be made by any other of the landowners, or his tenant, after a demand in writing, any justice acting for the county, &c. in which the land is situated, upon the complaint of any such landowner, or his tenant or agent (made within six calendar months, 11 & 12 Vict. c. 43, s. 11, Vol. I. p. 135], may summon the owner so refusing or neglecting to make contribution, or his tenant, to appear before any two or more such justices, who, upon proof of the demand and of service of the summons, whether or not the party summoned shall appear, are to examine into the merits of the complaint, and determine the just proportion of the rent-charge so paid, which ought to be contributed by the landowner of such other portion of the said land, and by order are to direct the payment by him of what shall in their judgment be due and payable in respect of such liability to contribution, with costs ;--and thereupon the complainant may enforce payment of the amount of contribution and costs by distress and entry [Vide 6 & 7 Will. 4, c. 71, ss. 81–85; and 23 & 24 Vict. c. 93, ss. 29, 30), but with the restriction to two years' arrears. The demand must be served upon any person occupying or residing on the land, or in case no person shall be found thereon, then affixing same on some conspicuous place on the land (s. 17). [Forms of Complaint, Sum
mons and Order, Nos. 5—7, p. 962, Oke's “Formulist," 6th ed.] 23 & 24 Vict,
Restoration of Instrument of Apportionment to proper Custody.] c. 93,
By 23 & 24 Vict. c. 93, s. 28, whenever any person, other than the
188 This limitation may, doubtless, be treated as repealed by 11 & 12 Vict. c. 43, s. 36, Vol. I. p. 127, Note 2, and in that case, sect. 18, Id. pp. 195, 196, applies to these costs.