surety shall neither be granted against him nor to him, upon his own request; but, if there be cause, the justice ought to provide for his safety (p). A peeress may demand surety of the peace against her husband (9), but a peer or peeress is not to be bound except in the Court of Chancery or Q. B. (r). In R. v. Mallinson (s) one partner having been forced by the violence of his co-partner out of the business premises, and threatened with violence and danger to his life if he ventured again to enter the premises, Patteson, J., allowed him to exhibit articles of the peace against his partner, it being shewn that it was necessary for the applicant to go to the premises for the purpose of carrying on his business.

Surety for good behaviour, for what granted.] The power which justices have to bind persons to their good behaviour is very large and indefinite, and extends to the taking surety of all those whom they may have just cause to suspect to be dangerous, quarrelsome, or scandalous, and all others whose conduct may bring them within the purview of the statute 24 Edw. III. c. 1, as persons of evil fame (t). This statute, entrusting magistrates with a wide discretion, authorizes them "to take of all them that be not of good fame, where they shall be found, sufficient surety and mainprize of their good behaviour towards the King and his people." Lord Coke (u), remarking upon this clause, says that the offences against the peace, after they are done, having been provided for, "now followeth an express authority given to the justices for the prevention of such offences before they be done, viz., and to take of all them that be not of good fame, (that is, that be defamed and justly suspected that they intend to break the peace) where they shall be found, surety and mainprize of their good behaviour towards the King and his people, (which must concern the King's peace, as is also provided by the word subsequent) to the intent that the people be not by (p) Ib.

(7) See the cases of Ld. Vane, 2 Stra. 1202; 13 East, 171, S. C. Marquis of Caermarthen, Fost. 359; Earl Ferrers, 1 Burr. 631, 703; Earl Stamford, Cas. t. Hardw. 1 T. R. 696; Lord Howard, 11 Mod. 109.

(r) 1 Hawk. c. 60, s. 5; 4 Blac Com. 251.

(8) 1 L. M. & P. 619; 20 L. J. M. C. 33.

(t) 1 Hawk. c. 61, s. 4.
(u) 4 Inst. 181.

such rioters disturbed or indamaged, nor the peace blemished, nor merchants nor others passing by the highways disturbed, nor put in the peril that may happen of such offenders."

A surety for good behaviour includes in itself a surety of the peace (v); and therefore, it would seem that everything which is a cause for binding a party to the peace is also a cause for binding him to good behaviour (w). There is much difficulty in laying down safely how far the powers of justices extend in taking surety for good behaviour, the sense of the statute having been extended in numerous cases, not only to offences immediately relating to the peace, but to divers misbehaviours not directly tending to a breach of the peace, so that it is difficult to define how far it shall extend and where it shall stop. It therefore becomes the magistrate to act in this matter with great caution and discretion, and to remember that in matters which the law hath left indefinite, it is better to fall short of, than to exceed, his commission and authority (x). The court, on this subject, is not inclined to regard ancient precedents with great respect (y). The following cases are collected in the modern text-books (2), in which justices may require parties to find sureties for their good behaviour.

When required.] "Persons who charge another before a justice with felony, riot, or forcible entry, and yet refuse to prosecute or give evidence; who outrageously misbehave in the presence or hearing of a justice, or speak contemptuous words of him, though not in the execution of his office (a); who publicly accuse him of ignorance of his duty (b); who abuse his warrant; who assault or abuse a constable in the execution of his duty; who poison or destroy the cattle or goods of others; who live riotously and profusely, without any visible means, and cannot give a good account of themselves when called upon; who keep brothels (c);

(v) Dalt. J. c. 122.
(w) 2 Hayes, C. L. 837.

(x) Burn, J. "Surety for good behaviour."

(y) See Ld. Denman, Prickett v. Gratrex, 8 Q. B. 1028.

(2) 2 Hayes, C.L. 837;1 N. & W.

J. P. 450.

(a) R. v. Rogers, 2 Ld. Raym. 778; R. v. Langley, 6 Mod. 125. (b) R. v. Burford, 1 Ventr. 16.

(c) Claxton's case, 12 Mod. 566; but being merely found in a bawdy house is not sufficient cause.

or are common frequenters of brothels; who keep bad women in their own houses; who excite discontent in the minds of the people (d). It may be required from a woman offering money to procure medicines to destroy a child of which she is pregnant (e); for obstructing another in his necessary way to a court of justice (f); suborning witnesses (g); being guilty of forcible entry, or detainer (gg); from such as are common quarrellers, or lie in wait to rob, and put passengers in fear, or are suspected to be robbers; from such as are likely to commit homicide, or other grievance to the King's subjects in their bodies, and such as practice poisoning (h); from common gamesters (i), especially if they have not whereon to live." No one ought to be bound to the good behaviour for any rash, quarrelsome, or unmanly words, unless they either directly tend to a breach of the peace or to scandalise the government; and a magistrate has jurisdiction to require sureties for good behaviour of a person charged before him with having published a libel calculated to produce a breach of the peace, and in default of such sureties to commit the party so charged to prison (j). In Stampe v. Hyde (k) one question was, whether calling another a knave was a breach of a recognizance of good behaviour. The court held it was not; and a case is there cited, where a person, having been committed for not finding sureties for good behaviour for calling an alderman a knave, was discharged, such a word alone not being sufficient. It appears from these and other cases, turning upon similar words, that aggravated defamation was a ground for requiring sureties for good behaviour, although rash words of anger were not sufficient (1).

(d) 2nd Ventr. 24.
(e) Cro. Eliz. 449.

(f) 1 Hawk. c. 61, s. 4, n.
(g) Marsh, p 11, pl. 30.
(gg) 1 Hawk. c. 64, s. 8.

(h) Dalt's 292. Surety for good behaviour has been granted against one who bought ratsbane and mixed it with corn, and cast it among his neighbour's fowls, whereby most of them died, see 5th Burn, Justices, 28th ed. 911.

(i) Stat. 11 Anne, c. 5.

(j) Haylock v. Sparke, 1 El. & Bl. 471, where the subject is most fully considered. The libel in this case was written with chalk on the flags of a railway station, the offensive words being a "reflection" on the character of Mr. Watt, Station-Master of the Ely Railway Station; the words were, Donkey Watt, the railway jackass."

(k) 2 Roll. R. 199, 227, printed 247. (1) See Haylock v. Sparke, 1 El. & Bl. 487.

Articles of the peace.] Instead of applying to a single justice, or to the court of petty sessions, as is most usual in Ireland, the party may make his complaint to the Court of Queen's Bench, or to the court of quarter sessions if it be then sitting (m), but the consideration of this matter is foreign to the scope of this treatise (n).

How granted.] When a justice of the peace sees a person doing or about to do anything which would warrant him, upon the complaint of a third party, in requiring surety of the peace or good behaviour, he may, of his own motion, require the offender to find such surety, or cause him to be committed until he does so (o). If the offending party be present, he may be required at once to enter into the necessary recognizance and commanded to find sureties, and if he does not do so, he may be immediately committed for his disobedience (p). And here it should be mentioned that when the party is brought before the J. P. he must offer sureties or else the justice may commit him; for the justice needs not to demand surety of him (q); he is usually bound by himself and two sureties; or if any infant or married woman, by sureties alone. A justice, when applied to, ought to examine the complainant and his witnesses, if he has any, on oath, or on solemn affirmation, and take down the grounds of complaint in writing (r). If the offender be not present, the party requiring the sureties should come before the justice and lay an information or complaint against the offender on oath, upon which either a summons or warrant may be issued to bring the offender before the magistrate (s). Upon the application for sureties, the ground upon which it is made should be particularly stated, as the J. P. cannot compel surety to be given on a general information (t); for the power of the J. P. depending upon the words of his commission, the information should shew that those

(m) J. Burn, Surety of the Peace, IV.

(n) The reader is referred 2 Hayes, C. L. 836, and cases there collected. (0) Dalt, J., c. 116; 2 Hayes, C. L. 838.

(p) Burn, J. Surety of the Peace. (9) Dalt. J. cc. 118, 169; 2 Hayes,

C. L. 839.

(r) 2 Hayes, C. L. 456.

(8) 1 N. & W. J. P. 455; for form of information and warrant thereon, see forms Aa. & C. to schedule to 14 & 15 Vic. c. 93.

(t) See 1 N. & W. J. P. 456.

words are satisfied (u). There ought to be direct evidence of express malice, such as declarations and menaces to that effect (v). The threats need not, however, be by word of mouth against the exhibitant, but looks, gesture, and conduct may express them with equal force; but the rule is, that when reliance is placed on a general fact, which may be inferred from particular facts, but does not follow from them by necessary implication, the party should draw that inference himself, or swear to his belief of its correctness, and not leave the court to draw the inference (w). The safest course for the justice, where the informant cannot swear to his being in fear from the defendant, is for him to require sureties for good behaviour from the offending party.

It should be observed that the party ought not to be allowed by witnesses or opposing affidavits to contradict the facts stated in the affidavits which ground the application. They are to be taken to be true until, upon a proper prosecution, they shall be negatived (r). But though it is not open to the defendant to contradict the facts stated, yet an explanation is allowed of such part of the articles as are ambiguous (xx).

The warrant.] A justice's warrant, committing a party in default of his finding sureties to keep the peace, is bad if the commitment be for no definite time, but "until he shall find such sureties," or, "until discharged by due course of law;" but it is not necessary that the warrant should fix the amount in which sureties are to be given, because the magistrates before whom the party may subsequently find sureties, may be as competent judges of the requisite amount as the committing magistrate, though it appears more proper that the same magis

(u) In re Dunn, 12 A. & E. 599, 4 P. & D. 438.

(v) 2 Hayes, C. L. 838.

(w) Per Ld. Denman, C. J. in R. v. Dunn, 12 A. & E. 599, 4 P. & D. 438; see the case mentioned in 1 N. & W. J. P. 457, contra, and the case of R. v. Tregarthen, 5 B. & Adol. 678, decides that the J. P. is the proper judge as to whether the expressions have been used literally or metaphorically; but Lord Denman in R. v. Dunn said the judgment in

that case went beyond the facts of the case; R. v. Bringloe, 13 East, 174n also decides that the justice is the proper judge of ambiguous expressions.

(x) R. v. Stanhope, 12 A. & E. 620, ex parte Mallison, 16 Q. B. 367; Lord Vane's case, 13 East, 171, a; Countess of Strathmore's case, 1 I. R. 606; R. v. Doherty, 13 E. 171; see Wise's Sup. to Burn, J. 905.

(xx) R. v. Bringloe, 13 East. 171; see 1 N. & W. J. P. 460.