It appears to be a general rule that the defendant and his bail can not be called upon their recognizance except on the day on which the former is bound to appear. If he is called on any other day, notice must be given of the intention. (7)

It has been stated in previous parts of this work (m) to be unlawful, in general, to compound or conceal crimes or misdemeanors, or to agree to abstain from prosecuting therefor, or from giving evidence thereof. There are some cases, however, in which the law allows a compromise of a crime to be made, by permission of the court, when a defendant is held to answer, on a charge of a misdemeanor, for which the person injured has a remedy by a civil action, and he appears in court and acknowledges in writing, that he has received satisfaction for the injury. And the order made thereon, for his discharge, will be a bar to another prosecution for the same offense. (n)

OF SUMMARY CONVICTIONS BEFORE JUSTICES OF THE PEACE.

BESIDES the powers possessed by justices of the peace as peace officers-in requiring sureties of the peace-and in arresting, examining, and committing or bailing offenders for trial in the higher criminal courts, they are also authorized in this state to try persons charged with various minor offenses and disorderly practices, and to convict and punish them therefor, either by pecuniary penalty or personal imprisonment.

The examination and punishment of offenses in a summary manner by justices of the peace, without the intervention of a jury, are founded entirely upon a special authority conferred and regulated by statute. No new offense is cognizable in that manner, unless expressly made so by statute; and all the proceedings under an authority so created, must be strictly conformable to the regulations prescribed by the special law in each instance, from which all their force is derived. (a) Therefore, if a particular character, either in the number or the circumstances of the justices is required by the act under

(7) 1 Chit. Cr. L, 106.

(m) Ante, 216, 248.

(n) Code Cr. Pro., §§ 663, 664, 665.

(a) Paley on Conv., 1. 1 Nun & Walsh, 471. Smythe, 238.

which the proceedings are intended to be taken, that character must be filled, and all the terms imposed by the statute strictly complied with. Thus, if the authority be given to two justices, it can not be exercised by one. (b) And in such case the two justices must be together when the authority is exercised; for there would be no use in appointing two or more persons to exercise judicial functions, unless they were to act together. (c) But an authority to be executed by two justices may be exercised by a greater number. (d) If the act gives authority to the next justice, he alone who happens to be the next justice has any authority. (e)

But if the power be given to justices in or near the place, it is only directory; and any justice acting for the county has jurisdiction; the statute being merely directory and not restrictive. (ƒ)

It has always been held as a maxim that where property or title is in question, the exercise of such summary jurisdiction is taken from the justice, and that he is restrained from interfering, though the facts be such as he would otherwise have had authority

to take cognizance of. (g) * This principle is independent [*587] of any legislative provision, being a qualification which the

law itself raises in the execution of penal statutes, and is always implied, in their construction, though it is in some instances also the subject of special enactments. ()

The rule which has been laid down upon this subject is, that, without entering into the substantial merits of the title set up, it is sufficient to stop the summary interference of a magistrate by conviction that even a color of title appears to be in question, and that the act was done bona fide under an assertion of that supposed title, however weak that claim may appear to be. (i)

Among the offenses and disorderly practices which justices of the peace in this state are authorized to punish summarily, the offenders over whom they have jurisdiction, and the cases in which a special authority, more or less extensive, is conferred upon them by statute, are the following:

4. DISORDERLY PRACTICES ON PUBLIC OCCASIONS AND HOLIDAYS, AND IN TAVERNS, VES

SELS, AND CANAL BOATS.

5. BETTING AND GAMING.

6. RAFFLING.

7. RACING OF ANIMALS.

8. PROFANE CURSING AND SWEARING.

9. DISTURBING RELIGIOUS MEETINGS.

10. DISREGARDING THE SABBATH.

11. BASTARDY.

12. LUNATICS.

13. PARENTS AND HUSBANDS ABSCONDING FROM THEIR FAMILIES.

14. HAWKERS AND PEDDLERS.

15. VIOLATIONS OF EXCISE LAW.

Besides the above, there are many other cases in which penalties may be recovered before justices of the peace for the violation of some statute. And in many instances, the summary proceedings authorized to be had before a magistrate for the recovery of a penalty, partake more of the character of a civil action than of a crimi nal prosecution.

1. Beggars, vagrants, and tramps.

The Revised Statutes contain a title relative to "Beggars and vagrants;" enumerating the persons who are to be deemed vagrants; and providing for their arrest, examination and committal; and also

declaring how children found begging are to be dealt [*588] with. (4) This entire title, however, is superseded, and practically abrogated, by the Code of Criminal Procedure and other statutes; which contain the rules now existing in relation to beggars and vagrants. And the act of 1880 (ch. 17 ) provides for the arrest and punishment of tramps. (1)

(k) 1 R. 8., 632, § 1.

(1) PROCEEDINGS RESPECTING BEGGARS, VAGRANTS AND TRAMPS

Who are vagrants.]-The following persons are vagrants:

1. A person who, not having visible means to maintain himself, lives without employment;

2. A person who, being an habitual drunkard, abandons, neglects, or refuses to aid in the support of his family;

3. A person who has contracted an infectious or other disease, in the practice of drunkenness or debauchery, requiring charitable aid to restore him to health;

4. A common prostitute, who has no lawful employment, whereby to maintain herself;

5. A person wandering abroad and begging, or who goes about from door to door, or places himself in the streets, highways, passages, or other public places, to beg or receive alms;

*In the city of New York, the statute declares that: [*589] All persons who, being habitual drunkards, are destitute

6. A person wandering abroad and lodging in taverns, groceries, alehouses, watch or station-houses, out-houses, market places, sheds, stables, barns or uninhabited buildings, or in the open air, and not giving a good account of himself;

7. A person, who, having his face painted, discolored, covered or concealed, or being otherwise disguised, in a manner calculated to prevent his being identified, appears in a road or public highway, or in a field, lot, wood or inclosure.

8. Any child between the age of five and fourteen, having sufficient bodily health and mental capacity to attend the public schools, found wandering in the streets or lanes of any city or incorporated village, a truant, without any lawful occupation. (Code Cr. Pro., § 887.)

Sub. 4. Matter of Forbes, 19 How. Pr., 457.

Proceedings before magistrate.]-When complaint is made to any magistrate by any citizen or peace officer against any vagrant under subdivision 8 of the last section, such magistrate must cause a peace officer to bring such child before him for examination, and shall also cause the parent, guardian or master of such child, if the child has any, to be summoned to attend such examination.

If, thereon, the complaint shall be satisfactorily established, the magistrate must require the parent, guardian or master to enter into an engagement in writing to the corporate authorities of the city or village, that he will restrain such child from so wandering about, will keep him in his own premises or in some lawful occupation, and will cause him to be sent to some school, at least four months in each year, until he become fourteen years old.

The magistrate may, in his discretion, require security for the faithful performance of such engagement.

If the child has no parent, guardian or master, or none can be found, or if the parent, guardian or master refuse or neglect, within a reasonable time, to enter into such engagement, and to give such security if required, the magistrate shall by warrant commit the child to such place as shall be provided for his reception. If no such place for his reception has been provided, he shall commit him to the alms-house of the county. (Id., § 888.)

Child, how kept.]-Every child received pursuant to the last section, shall be kept until discharged by the overseers of the poor or the commissioners of the alms-house of such city or village, and may be bound out as an apprentice by them, or either of them, with the consent of any magistrate, or any of the aldermen of the city, or any trustee of an incorporated village where he may be, in the same manner, for the same periods and subject to the same provisions in all respects as directed in respect to parents whose children have become chargeable on any town. (Id., § 889.)

Peace officers, when to arrest.]-A peace officer must, when required by any person, take a vagrant before a justice of the peace or police

and without visible means of support; or who, being such drunkards, shall abandon, neglect, or refuse to aid in the support of their fam

justice of the same city, village or town, or before the mayor, recorder, or city judge, or judge of the general sessions of the same city, for the purpose of examination. (Id., § 890.)

See People ex rel. Kingsley v. Pratt, 22 Hun, 300.

Vagrant, when to be convicted.]-If the magistrate be satisfied, from the confession of the person so brought before him, or by competent testimony, that he is a vagrant, he must convict him, and must make and sign, with his name of office, a certificate in substantially the following form:

"I certify that A. B., having been brought before me, charged with being a vagrant, I have duly examined the charge, and that upon his own confession in my presence [or upon the testimony of C. D.,' etc., naming the witnssses], by which it appears that he is a person [pursuing the description contained in the subdivision of section 920, which is appropriate to the case], I have adjudged that he is a vagrant. "Dated at the town [or city] of

(Id., § 891.)

the

day of

18

“E. F., "Justice of the peace of the town of [or as the case may be.]

Certificate to constitute record of conviction and to be filed. Commitment of vagrants.]-The magistrate must immediately cause the certificate which constitutes the record of conviction, to be filed in the office of the clerk of the county, and must, by a warrant signed by him with his name of office, commit the vagrant, if not a notorious offender, and a proper object for such relief, to the county poor-house, if there be one, or to the alms-house or poor-house of the city, village or town, for not exceeding six months at hard labor, or if the vagrant be an improper person to be so committed, he must be committed for a like term to the county jail, or in the city of New York to the city prison or penitentiary of said city, or in the county of Kings to the penitentiary of that county. (Id., § 892, as amended in 1882.)

In re John Wacher, 62 How. Pr. R., 352; People v. Coffee, 62 id., 445.

Children begging, how disposed of]-If a child be found begging for alms, or soliciting charity from door to door, or in a street, highway, or public place in a city, village or town, a justice of the peace or police justice, on complaint and proof thereof, must commit the child to the county poor-house or other place provided for the support of the por, to be kept, employed and instructed in useful labor, until discharged by the county superintendents of the poor, or in the city of New York, by the commissioners of charities and corrections, or bound out as an apprentice by them, as prescribed by special statutes. (Id., § 893.) See Laws of 1877, ch. 428.

Peace officers to arrest and pursue a person disguised.]—It is the duty of every peace officer of the county, city, village or town where