which happens in his presence; and not only to do his utmost himself, but also to demand the assistance of others, which they are bound to ren der. And it seems, also, that if there be an affray in a house, a justice or constable may break open the doors to preserve the peace; and if affrayers fly to a house, and he follow with fresh suit, he may break open the doors to take them.(z)

Where a statute gives a justice jurisdiction over an offence, it impliedly gives him power to apprehend any person charged with such offence. (a)

(z) 1 Russ. on Cr. 274.

(a) 1 Chit. Cr. L. 34.

BOOK IX.

Proceedings before Justices of the Peace in criminal cases.

I. Of proceedings to prevent the commission of crimes.
II. Of the arrest and examination of offenders; committing them for
trial; and letting them to bail.

III. Of summary convictions before justices of the peace.
IV. Of trials for offences before courts of special sessions.

CHAPTER I.

Of proceedings to prevent the commission of Crimes.

The duty of a justice of the peace under this head consists in compelling persons threatening to commit certain crimes to give sureties to keep the peace, or, in default thereof committing them to prison.

Surety of the peace, consists in being bound with one or more sureties, in a recognizance or obligation to the people, entered on record and taken in some court or by some judicial officer; whereby the parties acknowledge themselves to be indebted to the people in the sum required, with a condition to be void and of none effect, if the party complained of shall appear in court, on such a day, and not depart the same without leave, and in the meantime to keep the peace towards the people of this state and particularly towards the person requiring such security.(1)

By the revised statutes, the following magistrates have power to cause to be kept all laws made for the preservation of the public peace; and

(1) 4 Black. Com. 252. 2 Deacon's Dig. Cr. L. 1271. 2 R. S. 704, § 4.

in the execution of that power, to require persons to give security to keep the peace, in the manner provided by statute, viz: the chancellor, justices of the supreme court, circuit judges, judges of the superior court of law of the city and county of New-York, the special justices and assistant justices for the said city and county, judges of county courts, mayors, recorders and aldermen of cities, supreme court commissioners, and justices of the peace appointed for any city or elected in any town.(a)

Whenever complaint shall be made in writing and upon oath(b) to any such magistrate, that any person has threatened to commit any of fence against the person or property of another, it shall be the duty of the magistrate to examine such complainant and any witnesses who may be produced, on oath; to reduce such examination to writing, (c) and to cause the same to be subscribed by the parties so examined. (d) In proceedings under this section of the statute, the first step is to make a complaint in writing and upon oath, before the magistrate; which complaint must be separate from the examination, and made previous thereto, in order to give the magistrate jurisdiction to take such examination. We are aware that the supreme court, in the case of Bradstreet v. Furgeson,(e) laid down a contrary doctrine; and that their decision was affirmed by the court of errors in August, 1840, the case in which court has not yet been reported. But the judgment of the court of errors was put upon a different ground from that of the supreme court. In the opinion delivered by Chancellor Walworth in that case, in the court of errors, he observes: "As there is no direction to examine the prosecutor and his witnesses in the presence of the party proceeded against, upon the return of the warrant, the complaint itself, which is required to be in writing and upon oath, is intended to be a separate and distinct proceeding from the examination of the complainant for the purpose of ascertaining whether his written complaint is well founded. If I am right in this, it is evident that the magistrate had no jurisdiction to administer the oath to the complainant or his witnesses for the purpose of ascertaining whether there was reason to fear the commission of the offence, before a complaint in writing had been made; and of course the complaint and the examination could not properly be contained in the same paper." Indeed Chief Justice Nelson, in delivering the opinion of the supreme court, in the same case, admits, that strictly, according to the

(a) 2 R. S. 703, § 1.

(b) See Append. No. 6, form of com

plaint.

(c) Append. No. 7.

(d) 2 R. S. 704, § 2.
(e) 17 Wend. 181.

letter of the statute, there should be a complaint in writing, on oath, and then an examination by the magistrate. (f) This is undoubtedly the correct doctrine. And the court of errors affirmed the judgment of the supreme court in this case, upon the ground that it appeared from recitals in the warrant of arrest, that a complaint in writing had been made to the justice; which recital was to be taken as presumptive evidence of the fact, in a suit against the justice.

The statute further provides, that if it shall appear from the examination of the complainant and his witnesses that there is just reason to fear the commission of any such offence by the person complained of, it shall be the duty of the magistrate to issue a warrant,(g) under his hand, with or without seal, reciting the complaint, and commanding the officer to whom it is directed, forthwith to apprehend the person so complained of, and bring him before such magistrate.(h) This warrant of arrest need not contain a formal adjudication that there is reason to fear the commission of the offence threatened.(i)

Upon the defendant being brought before the magistrate, he may berequired to enter into a recognizance,(k) in such sum, not exceeding one thousand dollars, as such magistrate shall direct, with one or more sufficient sureties, to appear at the next court of general sessions to be held in such county, and not to depart the same without leave; and in the meanwhile to keep the peace towards the people of this state, and particularly towards the person requiring such security. (1) It will be noticed the statute contains no provision giving the person proceeded against an opportunity to be heard in his defence, upon the examination or upon the return of the warrant. The statute seems to have contemplated an ex parte proceeding entirely. If this construction is correct, the person proceeded against would probably have no right to examine witnesses in his favor, or to have the assistance of counsel.

If the recognizance shall be given, the party complained of is to be discharged. If he refuses to find such security, it is the duty of the magistrate to commit him to prison until he shall find the same, specifying, in the warrant, (m) the cause of commitment and the sum in which security was required. (n) In this warrant, it is not necessary to mention the offence which the defendant is charged with having threatened to commit. It is

(f) Id. 185.

(g) See Append. No. 8.
(h) 2 R. S. 704, § 3.
(i) 17 Wend. 181.

(k) See Append. No. 9.
(1) 2 R. S. 704, § 4.
(m) See Append. No. 10.
(n) 2 R. S. 704, § 5.

enough, if it state the requirement to give security and his refusal to do so.(o)

Any person committed for not finding sureties of the peace, as provided by statute, may be discharged by any two justices of the peace of the county, upon giving such security as was originally required of him. (p) Every recognizance taken pursuant to the above provisions must be transmitted, by the magistrate taking the same, to the next court of general sessions of the county.(g)

Every person who, in the presence of any magistrate above specified, or in the presence of any court of record, shall make any affray, or threaten to kill or beat another, or to commit any offence against his person or property; and all persons who, in the presence of such magistrate or court, shall contend, with hot and angry words, may be ordered by such magistrate or court, without any other proof, to give such security as above specified; and in case of refusal so to do, may be committed in like manner as before provided. (r) The principle contained in this section of the statute is substantially the same as that previously existing at common law. (s)

Every person who shall have entered into a recognizance to keep the peace, shall appear at the next court of general sessions held in the county; and if he fail to appear, the court shall forfeit his recognizance, and order it to be prosecuted, unless reasonable excuse for his default be given. If the complainant do not appear at the court of general sessions, the party recognized is to be discharged, unless good cause be shown to the contrary. If the respective parties appear, the court is to hear their proofs and allegations, and may either discharge the recognizance taken, or they may require a new recognizance, as the circumstances of the case may require, for such time as shall appear necessary, not exceeding one year.(t)

No recognizance to keep the peace is to be deemed broken, except for non-appearance at the general sessions, unless the principal in such recognizance be convicted of some offence amounting, in judgment of law, to a breach of such recognizance.(u)

The manner in which such recognizances are to be prosecuted, is also prescribed by statute. (v)

(0) 17 Wend. 181. See 1 Jebb &

Syme's Rep. 369.

(p) 2 R. S. 704, § 6.

(9) Id. ib. § 7.

(r) Id. 705, § 8.

(8) See 4 Black. Com. 254.
(t) 2 R. S. 705, §§ 9, 10.
(u) Id. ib. § 11.

(v) Id. ib. §§ 12, 13.