3. Levying, &c. of when taken before justices, &c. In what cases the court have discharged forfeited recognizances, &c. Traversing Queen's right to fine. Respiting and staying process, Fines and forfeitures before The court will not in general discharge a recognizance, or allow it to be withdrawn, unless they be satisfied that the condition of it has been substantially complied with. (See R. v. Paul, 6 Car. & P. 328). Infancy is no ground for discharging a forfeited recognizance. (Erp. Williams, M'Clel. 493; 13 Price, 670). Nor is illness, (see Exp. Sloeman, 2 Jurist, 82); but the court will prevent the party suffering from the estreat, by suspending its effect till the next term. A defendant having been committed to prison on a forfeited recognizance, his wife and family becoming burthensome to the parish is not a sufficient ground to discharge him. (R. v. Staucher, 3 Price, 261). The court, in a case before the 3 Geo. IV. c. 46, post, 31, refused to discharge the estreated recognizance of a surety of another for the performance of an order of sessions, where, in consequence of the non-performance of the condition, the act of the principal had subjected a parish to expense, upon motion made on the ground of the poverty of the party only, the parish officers not having consented to the application. Nor would the court in any case grant a rule requiring the parish officers to show cause why a party making such an application should not be discharged. (In re Smith's Recognizance, 13 Price, 3). Where a defendant entered into a recognizance to appear to, and try an indictment for perjury against her in Trinity term, and she had appeared and pleaded to the indictment, but the indictment had not been tried, the court would not, in Michaelmas term, discharge the recognizance, but ordered that it should not be put in suit before the last day of the term. (R. v. Grote, 3 Dowl. P. C. 255). The usual documents to found an application for this discharge are a constat, petition, certificate, and affidavit, verifying the statements in the petition. See further, as to discharging, mitigating, and compounding fines and forfeited recognizances, 1 Price, Exch. Pract. c. 13. When the estreats come into the office, the parties concerned have an opportunity of traversing the Queen's right, in which case they employ one of the sworn clerks in the office as their attorney, and another of the sworn clerks is retained on the part of the crown in support of its right, who carry on the pleadings in this office according to the course of the common law, and the right is either determined by the court on demurrer, or after issue joined by a jury, and the pleadings and judgments thereon are entered on record by sworn clerks on rolls, intitled, the memoranda of each year. (2 Man. Exch. Prac. App. 253). The Court of Exchequer has jurisdiction to respite and stay process on estreated recognizances; and they will do so on application, in order to give the recognizors an opportunity of trying a question of law, respecting the subject-matter of the conviction, although the forfeiture import the breach of a duty imposed by competent authority, under an act of Parliament. (Re Fridlington, 9 Price, 658). Reg. v. Drummond, (11 Mod. 200). Lord Drummond stood bound by recognizance to appear in the Court of King's Bench the first day of the term; and Sir Simon Harcourt, excusing his non-appearance by reason of sickness, moved that his recognizance might be discharged, the attorney-general having orders, and, being in court, consenting thereto. But Holt, C. J., said, notwithstanding such consent, Lord Drummond not appearing in person, the court could not discharge the recognizance, but said they could respite it till the next term; which was done accordingly. III. Levying and Discharge, &c. when imposed or taken before Justices or at Sessions. The provisions of the 22 & 23 Car. II. c. 22, which relates to fines, issues, and amercements, forfeited recognizances, sum or sums of money paid or to be paid in lieu or satisfaction of them, or any of them, imposed and adjudged at any quarter sessions of the peace, and of the 4 & 5 W. & M. c. 24, which make the same perpetual, are now repealed by the 3 Geo. IV. e. 46; and proceedings to be adopted in future, for enforcing the payment of fines and forfeited recognizances, before justices of the peace or the court of general or quarter sessions, are directed by that act, and by stat. 4 Geo. IV. c. 37, passed for amending it. These new provisions effected a complete change in the previous law and practice in respect to the levying of sums due on forfeited recognizances, taken before justices of the peace out of sessions or at sessions; and it is now the duty of sessions not to estreat the forfeited recognizances into the Exchequer as formerly, but to issue process thereon immediately themselves, in order that the amount may be forthwith levied; and the clerks of the peace have no longer any authority to send the estreat into the Exchequer, though, if indeed the estreat be actually sent into that court, it has, it seems, jurisdiction over it. (See Erp. Pellex, M⭑Clel. 111; 13 Price, Erch. Rep. 301-2, n. S. C.; R. v. Hawkins, M-Clel. & Y. 27; R. v. Thompson, 3 Tyrw. 53; Reg. v. Justices, Yorkshire, West Riding, 7 Ad. & Ell. 583). But these provisions make no new regulation as to the circumstances under which recognizances shall be declared forfeit, they merely facilitate the levying of the penalty, where such recognizances are and could formerly have been forfeited at the sessions or otherwise, as stated in the second section of the 3 Geo. IV. c. 46. The question of how the recognizance may be legally forfeited remains untouched; consequently, in a recent case, where a party, bound in a recognizance to keep the peace, was subsequently convicted at petty sessions of an assault, and the conviction was returned to the quarter sessions, it was held that the justices were not authorized, under that act, to order an estreat of the recognizance, but that the proceeding for that purpose must be by scire facias, as before the statute, (R. v. Justices of Yorkshire, West Riding, Re Dr. Thornton, 7 Ad. & Ell. 583), and the court of sessions having made such order, the Court of Queen's Bench granted a certiorari to bring it up for the purpose of being quashed. (Id., and see R. v. Cossins, Parker, Rep. 54; post, "Surety for the Peace", Vol. V.) We will now proceed to notice these new provisions. 3. Lerying, &c. of when taken before justices, &c. justices, and at sessions. The stat. 3 Geo. IV. c. 46, s. 1, reciting, "that an act was passed in 3 Geo. 4, c. 46. the twenty-second and twenty-third years of his late Majesty King Charles the Second, intituled An act for the better and more certain 22 & 23 Car. II. recovery of fines and forfeitures due to his Majesty,' which act was made c. 22. perpetual by an act passed in the fourth and fifth years of the reign of their late Majesties William and Mary, intituled 'An act for reviving, continu- 4 & 5 Will. & ing, and explaining several laws therein mentioned, which are expired Mary, c. 24. and near expiring; and that an act was passed in the forty-first year of his 41 Geo. 3, c. 85. late Majesty George the Third, intituled, 'An act for better payment of fines and forfeitures imposed by justices out of sessions in England ;' and that great delays occur in the return of fines, issues, amerciaments, forfeited recognizances, sum and sums of money paid or to be paid in lieu or satisfaction of them, or any of them, by or before any justices of the peace, or at any general or quarter sessions of the peace in that part of the United Kingdom called England: and that such delays impede the due administration of justice, as well as the recovery of the fines and forfeitures dne to the Crown thereupon; and it is therefore expedient that further provision should be made for the speedy and regular return of all such fines, issues, amerciaments, forfeited recognizances, and sum or sums of money paid or to be paid in lieu or satisfaction of them or any of them," enacts, "that, from and after the 29th day of September, 1822, so much so much of 22 & of the aforesaid act passed in the twenty-second and twenty-third years 23 Car. II. c. 22, of the reign of his late Majesty King Charles the Second, as relates to fines, &c. fres, issues, and amerciaments, forfeited recognizances, sum or sums of money paid or to be paid in lieu or satisfaction of them or any of them, as relates to 3. Lorying, &c. of when taken before justices, &c. 4 & 5 Will. & Mary, c. 24, s. 4. 41 Geo. 3, c. 85. U. K. s. 1. Repealed. Statements of fines, &c. to be certified to clerk of peace by the justice by whom such fine, &c. is imposed (b). Clerk of peace to fines, &c. at sessions, and send a copy of such roll, with writ of dis imposed and adjudged at any quarter sessions of the peace; and also, that such part (a) of the aforesaid act of their late Majesties William and Mary, as makes perpetual the aforesaid provisions contained in the said act passed in the twenty-second and twenty-third years of the reign of his late Majesty King Charles the Second; and likewise so much of the said act passed in the forty-first year of the reign of his late Majesty King George the Third, as relates to the annual payment of all fines, forfeitures, and penalties, or such parts thereof as shall be due to the King, imposed and received by any justice out of sessions, and not made payable to any body or bodies corporate, or any commissioners of any public board, or any other person or persons, into the hands of the sheriff, previous to the Michaelmas sessions; and also so much of the said act of the forty-first year of the reign of his said late Majesty King George the Third, as requires such justices, previous to the Michaelmas sessions yearly, to transmit to the clerk of the peace or town clerk where such fine was imposed, an account in writing of all such fines, shall be and are hereby repealed." Sect. 2. "All fines, issues, amerciaments, forfeited recognizances, sum or sums of money paid or to be paid in lieu or satisfaction of them or any of them, (save and except the same shall, by virtue of any act or acts of Parliament made or to be made, be otherwise directed to be levied, recovered, appropriated, or disposed of), which already are or hereafter shall be set, imposed, lost, or forfeited by or before any justice or justices of the peace, in that part of the United Kingdom called England, shall be and are hereby required to be certified by the justice or justices of the peace by or before whom any such fines, issues, amerciaments, forfeited recognizances, sum or sums of money paid or to be paid in lieu or satisfaction of them or any of them, shall be set, imposed, lost, or forfeited to the clerk of the peace of the county, or town clerk of the city, borough, or place, in writing, containing the names and residences, trade, profession, or calling of the parties, the amount of the sum forfeited by each respectively, and the cause of each forfeiture, signed by such justice or justices of the peace, on or before the ensuing general or quarter sessions of such county, city, borough, or place respectively; and such clerk of copy on a roll such the peace, or town clerk, shall (c) copy on a roll such fines, issues, amerciaments, forfeited recognizances, sum or sums of money paid or to be paid in lieu or satisfaction of them or any of them, together with all tringas, &c. to the fines, issues, amerciaments, forfeited recognizances, sum or sums of money paid or to be paid in lieu or satisfaction of them or any of them, imposed or forfeited at such court of general or quarter sessions, and shall, within such time as shall be fixed and determined by such court, not exceeding twenty-one days after the adjournment of such court, send a copy of such roll, with a writ of distringas and capias, or fieri facias and capias, according to the form and effect in the schedule marked (A.) (post, 36), annexed to this act, to the sheriff of such county, or the sheriff, bailiff, or officer of such city, borough, or place having execution of process therein respectively, as the case may be, which shall be the authority to such sheriff of such county, or the sheriff, bailiff, or officer, as the case may be, for proceeding to the immediate levying and recovering of such fines, issues, amerciaments, forfeited recognizances, sum or sums of money to be paid in lieu or satisfaction of them or any of them, on the goods and chattels of such several persons, or for taking into custody the bodies of such persons, in case sufficient goods and chattels shall not be found whereon distress can be made for recovery thereof; and every person so taken shall be lodged in the common gaol sheriff, &c. Sheriff, &c. may proceed thereon. (a) That the whole of this act is not repealed, see Exp. Hodgson, 1 M. & R. M. C. 347, ante, 27, post, 35, n. (b). (b) See further 4 Geo. IV. c. 37, s.1, post, 37. (c) His duty is imperative. Reg. v. Justices of Yorkshire, 7 Ad. & Ell. 591. until the next general or quarter sessions of the peace, there to abide the judgment of the said court." (a) Sect. 3. The clerk of the peace or town-clerk shall, before he shall deliver the roll to such sheriff, bailiff, or officer, containing the fines, issues, amerciaments, forfeited recognizances, sum or sums of money paid or to be paid in lieu or satisfaction of them or any of them, and is hereby required to make oath before any justice of the peace for the county, riling, city, borough, or place for which such clerk of the peace or town-clerk shall act; which oath shall be endorsed on the back of the writ, or of the said roll attached thereto, such clerk of the peace or town-clerk stating therein all such fines, issues, amerciaments, forfeited recognizances, sum or sums of money, which shall have been paid or otherwise accounted for; and such oath shall be made in the form following: I. make oath, That this roll is truly and carefully made up and ex- Form of oath. amined, and that all fines, issues, amerciaments, recognizances, and forfeitures, which were set, lost, imposed, or forfeited, and in right and due course of law ought to be levied and paid, are, to the best of my knowledge and understanding, inserted in the said roll, and that in the said roll are also contained and expressed all such fines as have been paid to or received by me, either in court or otherwue, without any wilful or fraudulent discharge, omission, misnomer, or defect whatever. So help me God."" Sect. 4. Each and every justice of the peace before whom any re- Notice to surcties. cognizance shall be entered into or taken, shall and is hereby required to give, or cause to be given, at the time of entering into such recognizance, to the person or persons, surety or sureties so entering into the same, and to each of them, a written or printed paper or notice, in the form or to the effect stated in the schedule marked (B) (post, 36), to this act annexed, adapting the same to the particular circumstances of the case; and each and every such justice shall, in such recognizance, state What recognizance and particularly specify not only the profession, art, mystery, or trade to specify. of every person so entering into such recognizance, together with their Christian name and names and surnames, but also the parish, township, or place of his or her residence; and in case such residence shall be in any city, town, or borough, shall also state and particularly specify the name of the street and number of the house (if any) in which such son shall reside, and also whether owner or tenant thereof, or lodger therein." per Sect. 5 provides "That if any person, on whose goods and chattels such sheri, bailiff, or officer, shall be authorized to levy any such forfeited recognizance, or sum of money to be paid in lieu or satisfaction thereof, shall give security (c) to the said sheriff, bailiff, or officer, for (a) See the further provisions of the 4 Geo. IV. c. 37, post, 37, as to sherifs keeping the writs, &c. and how the levy is to be made where the party resides in another county. See also the 7 Geo. IV. c. 64, s. 31, post, 38, as to recognizances to prosecute and give evidence in cases of felony or misdemeanor, or to answer for any comnon assault, or to articles of the peace, or to abide an order of bastardy. (The power of appeal to the sessions given by this and the next section is merely to relieve a party whose goods are taken in execution, the sessions being empowered to mitigate the amount or give entire relief from execation, the same as the court of Exchequer had before. It does not give the VOL. III. party an opportunity of contesting the D Appeal to quarter sessions against rity (b). fines, &c. secu 3. Levying &c. of when taken before justices, &c. 3 Geo. 4, c. 46. Proviso for nonappearance. Quarter sessions to determine such appeals. 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 expenses (a) as shall be ordered and adjudged by the court, it shall be lawful for such sheriff, bailiff, or officer, and he is hereby authorized and required, to discharge such person so giving such security out of custody: Provided also, 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 surety or sureties of the person so bound as aforesaid." Sect. 6. "The court of general or quarter sessions, before whom any person so committed to gaol or bound to appear shall be brought, is hereby 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 (b); and such order shall be made in the form or to the effect of the schedule marked (C) to this act annexed (post, 36), and shall be signed by the clerk of the peace, which said order shall be a discharge to such sheriff, bailiff, or officer, on the passing of his accounts at the Exchequer, or before any auditor or other proper officer, duly authorized to pass the same; and in all cases where the party shall have been lodged in the common tody, sessions may gaol by such sheriff, bailiff, or other officer, the justices of the peace so assembled are hereby empowered either to remand such party to the custody of the sheriff, bailiff, or other officer, or, upon the release of such party from the whole of such forfeited recognizance, to order such party to be discharged from custody, and such order shall be a full and sufficient discharge to the said sheriff, bailiff, or officer, on the passing of his accounts at the Exchequer, or before any auditor or other proper officer duly authorized to pass the same; and it shall and may be lawful to and for the said court of general or quarter sessions to award such costs, charges, and expenses to be paid by either party to the other, as to the said court shall seem just and reasonable." If party in cus remand or release him. Costs. No stamp duty. Allowance to sheriff and clerk of peace on sums levied. Sheriff, &c. neglecting, penalty, 501. Sects. 7 and 8 are repealed by the 4 Geo. IV. c. 73, s. 2. Sect. 9. "None of the proceedings under this act shall be liable to or charged with any stamp duty." Sect. 10. "The clerk of the peace and other officers shall be entitled to their usual and legal fees on the discharge of any forfeited recognizance, and the said clerk of the peace to an allowance of 6d. for every one hundred words, for all copies of the roll sent to the said lords commissioners of the Treasury; and in case any such sheriff, bailiff, officer, or clerk of the peace shall refuse or neglect to do and perform any duty, Bayley, J., Haynes v. Hayton, 7 B. & It is questionable whether on such (a) Costs may be awarded under this provision. (Haynes v. Hayton, 7 B. & C. 300. (b) The sessions have no other jurisdiction than that given by this act; and the power given them is confined to cases in which a party brought before the sessions has been committed to gaol, or been bound to appear under a security given, according to the 5th section. It does not extend to cases where a party pays the money in order to prevent a sale by the sheriff or other wise (Haynes v. Hayton, 7 B. & C. 293; 2 C. & P. 621, S. C.) Therefore, where a party, whose recognizance had become forfeited for not appearing to an indictment, and against whom process had issued, paid the sheriff the sum in the recognizance, in order to prevent a sale of his goods; and the justices at sessions afterwards, by order, mitigated the recognizance to a small sum, and directed the sheriff to discharge the residue from the recognizance: it was held that such order was void, and that the party was not entitled to recover from the sheriff the sum which the justices had ordered to be discharged," (Id.) |