Recognisances (Ireland) Act, 1817

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RECOGNISANCES (IRELAND) ACT 1817

CHAPTER LVI.

An Act to amend the Laws in respect to forfeited Recognizances in Ireland. [30th June 1817.]

[Preamble.]

[S. 1 rep. 36 & 37 Vict. c. 91. (S.L.R.)]

Every recognizance shall specify the name, addition, and residence of the person bound.

Persons becoming bail for appearance of an accused person or for keeping the peace shall make oath of their residence and sufficiency.

2. Every recognizance taken in Ireland by or before his Majesty's Court of King's Bench there, or by or before his Majesty's chief justice of the said Court of King's Bench, or by or before any of the justices of the said Court of King's Bench, or by or before any justice or justices of oyer and terminer or gaol delivery, or by or before any justice or justices of the peace, either at their sessions of the peace or otherwise, or by any magistrate or other person lawfully authorized to take the same, shall contain the name and addition of the person or persons respectively thereby acknowledging himself, herself, or themselves respectively to be bound, and the name of the townland, parish, and barony or half barony, or town or city, and street therein (if in a county of a town or city), in which the usual or actual place or places of residence of such person or persons is or are respectively situated; and all and every persons or person who shall hereafter come before his Majesty's said Court of King's Bench, or before any of his Majesty's justices of the said court, or before any such justice or justices of oyer and terminer or gaol delivery, or before any justice or justices of the peace, either at their sessions of the peace or otherwise, or before any magistrate or other person lawfully authorized to admit to bail, in order to give bail or be bound for the appearance of any person or persons charged with any crime or crimes (which person so charged shall by law be entitled to bail), or for keeping the peace, shall respectively make oath in one of the forms here following, or in some other form of words to the like import and effect respectively; that is to say, if such person shall reside in a county at large, in this form; (to wit,)

‘I A.B. do swear, that I am a householder, and have a house wherein I usually reside, at in the parish of barony or half barony of and county of, and that I support and maintain myself by , and that I am worth the sum of [here insert double the sum in which he or she is to be bound] over and above all my just debts. So help me GOD.’

And if such person shall reside in a county of a city or town, the words ‘reside at’ and from thence to ‘county of’ shall be omitted; and instead thereof these words shall be inserted; (to wit,) ‘residing in [naming the street, square, lane, or place] in the parish of and county of the city or town of’; and every such oath shall be annexed to or be written on the same piece of paper or parchment with the recognizance, and shall be signed by the person making the same, and attested by the proper jurat of the court, judge, justice, or other person taking the same as aforesaid, and shall be sufficient in lieu of all and every oaths and oath required by any law in force in Ireland to be taken by any such surety.

Persons charged and bound to appear, or to keep the peace, or to prosecute offenders, shall be sworn only as to their residence.

3. Provided always, that nothing herein contained shall extend or be construed to extend to require the person or persons charged with any crime, and for whose appearance any recognizance shall be about to be entered into, or any person or persons who shall become personally bound to keep the peace, or any person or persons who shall or may hereafter become bound for the prosecution of any person or persons charged with any criminal offence, to take such part of the said oath as relates to such person or persons being a householder, or to his, her, or their being respectively worth the sum or sums of money for which he, she, or they is and are respectively about to be bound, over and above all their just debts; but every such last-mentioned person and persons shall, in like manner and form respectively, make oath as to the place, parish, barony, or half barony, and county, and the town or city and street therein (if in a county of a town or city), in which he, she, or they usually or actually reside.

Justices, &c. neglecting to return recognizances, or to insert names, &c. or administer oaths, shall forfeit 50l. in addition to any fine by the judges at assize.

4. All and every justice and justices of the peace, and all and every magistrate and other person lawfully authorised to take recognizances, who shall hereafter neglect or refuse to return the recognizances taken before him alone, or before him and any other magistrate or person or persons so authorized to take the same, in manner herein-after mentioned, or shall neglect or refuse to insert in any recognizance taken before him solely or with any other or others as aforesaid the proper name and names and addition or additions of the person or persons entering into the same, according to the provisions of this Act, or shall neglect or refuse to administer the oaths respectively herein-before directed and appointed to be administered in manner so directed, shall for every such neglect or refusal (in addition to such sum as the judge or judges of assize may think fit at the respective assizes to impose upon any such justice and justices of the peace, or such magistrate or other person aforesaid, by way of fine for such neglect or refusal,) forfeit the sum of fifty pounds, to be recovered against him by bill, plaint, or information in any of his Majesty's courts of record in Dublin, by any person or persons who will prosecute or sue for the same.

[Ss. 5–14, and ss. 15, 16 (providing for the execution by the sheriff of the process for levying estreats of recognizances and fines returned to the comptroller of the pipe) rep. 36 &; 37 Vict. c. 91. (S.L.R.)]

Allowance to the sheriff on levy or arrest for recognizances or fines.

17. There shall be allowed to every such sheriff a sum of three shillings and fourpence on every twenty shillings which shall have been actually levied by him for or in respect of any fine in such process as aforesaid; and a like sum for every twenty shillings for which any person or persons shall have been actually taken by such sheriff or sheriffs, under such process as aforesaid, for or in respect of any fine.

Sheriffs shall return to justices of assize, &c. a certificate of the names of all persons in custody for fines or recognizances.

Gaoler shall verify such certificate on oath.

18. Every sheriff shall at every assizes within their respective jurisdictions, return to the justices of assize a certificate containing the names of the several persons in their custody respectively under any process issued for or by reason of any fine or fines imposed or any recognizance or recognizances forfeited at any antecedent court of assize, within such county, county of a city, or county of a town, and who were in their custody at any time during the then next preceding assizes for such county, county of a city, or county of a town, or have been since committed to them; and shall also at every general sessions of the peace return to the court a like certificate of persons committed under any process issued for or by reason of any fine or fines imposed or recognizance or recognizances forfeited at any antecedent sessions of the peace for such county, county of a city, or county of a town, and who were in their custody at any time during the next preceding sessions of the peace, or at any time since; and every such certificate as aforesaid shall set forth the times when such persons were respectively committed to prison, and the sums for which they were so in custody, and whether any and which of such persons then remain in their custody, and, if so, how long such persons respectively have been in actual confinement for such cause, and, if not then in custody, then by what authority and at what time they were respectively discharged; and the gaoler of every such sheriff shall verify the said certificate by affidavit, to be sworn before such justices of assize, or, in case of a return to the sessions, before any two justices of the peace (which any two justices of the peace are hereby authorized and required in such case to administer); and such certificate and affidavit shall be lodged with the clerk of the crown of the county, or, if at sessions, with the clerk of the peace, who shall annex the same to the estreats of all forfeited recognizances returned by them respectively pursuant to this Act.

Sheriffs chargeable with the sums for which such persons were committed.

19. All sheriffs, in whose custody any such persons as aforesaid shall be as aforesaid, shall be chargeable with all sums for which such persons were so in custody respectively, in the same manner as they are now by law chargeable for fines on persons convicted of any criminal offences and committed to them for such fines; and the comptroller of the pipe shall issue his usual process against such sheriffs for the same accordingly.

Sheriff shall be exonerated by order of discharge from Court of Exchequer, &c.

20. Provided always, that where any person for whom any sheriff or sheriffs shall have become chargeable as aforesaid shall not remain in the custody of such sheriff or sheriffs, then such sheriff or sheriffs shall, upon his or their producing an order of the said Court of Exchequer in any case, or of justices of assize, or of a court of general sessions of the peace in cases cognizable by them respectively for the discharge of any such person, be exonerated from the sum for which such person so discharged was committed.

No poundage to sheriff, except on due payment of all sums chargeable.

21. Provided also, that no sheriff shall have, receive, or be entitled unto any benefit of poundage or allowance under or by virtue of this Act, unless such sheriff shall pay into the receipt of the Exchequer, according to the course of the court, the sum with which he shall be chargeable.

In case of false return to writs the court may fine the sheriff or under sheriff.

22. If any sheriff shall, for want of exercising due diligence, make a false return, not knowing the same to be false, with respect to any of the persons mentioned in the said writs or process which shall be directed and delivered to him, it shall be lawful for the Court of Exchequer, on application made to the court in that behalf, to inquire summarily into the truth of the charge, and, if they shall find that the same is true, to fine the sheriff by or in whose name such return shall have been made, or his under sheriff, in a sum equal to the full amount of the sum which the said sheriff was by the writ or process ordered to levy of the person with respect to whom such false return shall have been made, together with the full costs of such application, and to enforce the same by attachment against such sheriff or his under sheriff, as the court shall judge expedient.

Sheriffs, &c. shall not receive any fee for levying or forbearing to levy any sum.

Penalty on sheriff nihiling or neglecting to answer to the crown for any sum actually levied.

Penalty on sheriff, &c. taking any fee or gift on executing or forbearing to execute any green wax process.

23. No sheriff, under sheriff, bailiff, or other person employed in levying or collecting any of the said debts or sums of money, shall ask or take or receive any fee, gift, gratuity, or reward whatsoever, of the person or persons liable to pay the same, nor of any other person, for or upon pretence of such levying or collecting, or for or upon pretence of forbearing to levy or collect the same, or any part or proportion thereof; and in case any sheriff shall nihil or not duly answer to the crown any debt or sum of money which shall have been levied, collected, or received by him, such sheriff for every such offence shall forfeit treble damages to the party aggrieved, and double the sum nihiled and not duly answered as aforesaid, to his Majesty; which said damages and penalty shall be ordered, decreed, and given by the Court of Exchequer, on complaint and proof of such abuse as aforesaid made and exhibited before the barons of the said court, in such summary way and method as to them shall seem meet; and in case any sheriff, under sheriff, bailiff, or other person so employed as aforesaid, shall demand, take, or receive any sum or sums of money, gift, gratuity, or reward of any kind whatsoever, or any security, promise, or engagement of or for any sum or sums of money, fee, gift, gratuity, or reward of any kind whatsoever, be the same more or less, of any person whomsoever, for or in respect or upon pretence of executing any green wax process of the Court of Exchequer in Ireland, or for or in respect or upon pretence of fees due to them, or any of them, for collecting or receiving the same, or for not executing or for delaying to execute any such process or any warrant issued thereon, or shall accept of a less sum upon account or in payment or discharge of any such process or warrant than as in such warrant or process is mentioned, then and in all and every such case, every person so offending, and being thereof lawfully convicted, shall be deemed guilty of extortion; and every person being thereof lawfully convicted shall forfeit for every such offence to the party aggrieved in such process or warrant the amount of the sum ordered to be levied by such process or warrant, and double the sum so extorted, together with full costs of suit, to be recovered by action of debt, bill, plaint, or information, in any of the superior courts of record in Dublin.

Court of Exchequer may award in a summary way damages to party charged.

24. It shall and may be lawful for the said Court of Exchequer to award and order in a summary way, to every or any person or persons charged in such process, such damages, penalties, and costs, not exceeding the amount aforesaid respectively, as such court shall think reasonable; and thereupon such offender shall not be liable to any action or indictment for such offence; and every such order and award shall have the same effect and force to all intents and purposes as any other order of the same court; and the said costs, damages, and penalties shall be raised and levied by such process, ways, and methods as are used in the said court to enforce a compliance with any other order of the same court.

[S. 25 (providing for appeal to the commissioners of reducements, who may remit penalties) and s. 26 rep. 36 & 37 Vict. c. 91. (S.L.R.)]

Poundage on fines, &c. reduced, if levied by sheriff, shall be deducted thereout on repayment to the party relieved.

27. Provided also, that in case any such fines and recognizances, which shall be so reduced or mitigated by His Majesty's commissioners of reducements, shall have been actually levied by any sheriff, and not paid by him into the Exchequer, that then and in every such case no allowance shall be made for poundage on the debit of any such sheriff for any such reduced fines or recognizances, but that the poundage or allowance, provided as aforesaid, on such fines and recognizances respectively shall be paid to such sheriff by the person in whose favour or for whose benefit the order of reducement shall be made, which shall be so expressed in such order, and every such sheriff may accordingly deduct the said poundage upon repaying the sums so levied.

Court of Exchequer or assize or sessions may order discharge of persons in custody.

28. Provided also, that if any person or persons who shall hereafter be in the custody of any sheriff or sheriffs under any of the provisions of this Act for the non-payment of any sum or sums, shall petition his Majesty's Court of Exchequer in any case, or the judges of assize upon the respective circuits, or the court of general sessions of the piece in the cases directed to be certified to them respectively as aforesaid, the said Court of Exchequer and the said judges of assize and court of general sessions of the peace respectively shall examine into the facts of the said petitions respectively in a summary manner; and it shall be lawful for the said Court of Exchequer and judges of assize and court of general sessions of the peace respectively to grant an order or warrant (as the case may be) under their hands to discharge any person or persons so in custody and petitioning them respectively as aforesaid, if they shall respectively see sufficient reason so to do; which order or warrant, upon being filed with the comptroller of the pipe, shall respectively be an acquittance to the said respective sheriffs for the sum and sums for which the person or persons so discharged was or were in custody.

Orders at sessions shall be made with concurrence of assistant barrister or recorder.

29. Provided also, that no such order or warrant of the court of general sessions of the peace shall be valid, unless made with the concurrence and under the hand of the assistant barrister of the county in which such court of general sessions shall be, or in counties of cities and counties of towns, unless made with the concurrence and under the hand of the recorder.

Petitioners in the county gaol may be removed to the bridewell of any town where the sessions are held.

30. Whenever the general sessions of the peace for any county in Ireland shall be held in any city or town of such county, other than that in or near to which the county gaol shall be, the sheriff of such county shall at any time, not more than one week before the first day of such sessions, and he is hereby required to cause each and every prisoner in such gaol, who shall be entitled to petition such court, and shall desire the same to be removed at the expense of such person to the bridewell of such town where such sessions shall be so held, and to detain them respectively therein so long as may be necessary for the purposes of such petition, and, before the end of one week from the last day of such sessions, to cause such of them as shall not be discharged to be removed again to the county gaol.

In cases of alleged poverty of petitioner, the court shall inquire if the petitioner can pay part of the sum due, &c.

31. If the petition in any such case shall allege the poverty or inability of the petitioner to pay the amount of the sum or sums for which he or she shall be so in custody, the court or judge, in examining into such petition shall inquire whether such petitioner may not be of ability or have the power to pay and discharge some and what part or proportion of the sum or sums for which he or she shall be so confined; and such court or judge shall not on the said ground of poverty or inability order such petitioner to be so discharged, except on the payment of such part or proportion of such sum or sums as he or she may so have the power to pay and discharge; and if such petitioner shall have been a surety in a forfeited recognizance, then the court or judge shall also inquire when and by what means such person became unable to pay such amount; and unless such court or judge shall be satisfied that such inability arose without fraud, contrivance, or wilful default, after the time of entering into such recognizance, such court or judge shall not order that such person be discharged until after the end of four calendar months at the least from the commencement of his or her imprisonment under such process.

Inquiries before granting relief where petitioner has been fined, or is the principal in any forfeited recognizance, or is a surety.

32. In any case in which such petitioner shall have been fined, or shall have been the principal in any recognizance on which he or she shall be so in custody, such court or judge shall also inquire into the nature of the offence for which such fine shall have been imposed, or of the charge in consequence of which such recognizance shall have been entered into, and under what circumstances the same was forfeited; and in case such petitioner shall be so in custody under any recognizance to answer or appear to any charge, and shall after the forfeiture of such recognizance have been tried and acquitted of such charge, such court or judge shall inquire whether on such trial all the witnesses for the prosecution attended and were examined; and if not, then whether by the forfeiture of such recognizance the attendance of any such witness was in any respect prevented; and if such petitioner shall be a surety, then such court or judge shall inquire whether such surety used due diligence to make the principal amenable to the law; and in all and every of such cases the said court or judges or judge of assize shall have full power and authority, if they or he shall think proper, to order the discharge of such petitioner, either generally or after such length of time as such court or judges or judge in his or their discretion shall think fit, having respect to the circumstances of the case, and the length of time that such petitioner shall have been in custody previous to the making of such order, and to the object and purposes of this Act; and such order in such form shall be good and valid to all intents and purposes whatsoever.

Clerks of the crown and peace, at the termination of the assizes or sessions, to post on the door of the court or sessions house a list of all the recognizances forfeited, &c., and deliver to county treasurer a copy of list, which may be inspected.

33. The several clerks of the crown and clerks of the peace throughout Ireland shall, within three days after the termination of the several assizes or sessions of the peace respectively in every county, county of a city, and county of a town, cause to be posted on the door of the court house or sessions house of such county, county of a city, or county of a town, where such assizes or sessions were held, and, if such sessions were held in any place other than the county town, then also on the door of the court house in such county town, a true list signed and subscribed by such clerk of the crown or clerk of the peace of all the recognizances forfeited and fines estreated at such assizes or sessions respectively, specifying the names, descriptions, and residences of the persons against whom such estreats shall have been made; and shall also deliver or transmit to the treasurer of the county, county of a city or town in which such assizes or sessions were holden, a copy of such list; and such treasurer shall permit all persons to inspect such copy, who shall apply for that purpose at his office at any reasonable time of the day; and if any clerk of the crown or clerk of the peace shall omit or neglect to cause such list to be posted as aforesaid, or to deliver or transmit a copy thereof to the treasurer of such county, county of a city or town, such clerk of the crown or clerk of the peace so offending shall for every such offence forfeit the sum of five pounds, to be recovered in a summary manner before any one justice of the peace of such county, county of a city or town respectively.

Rights of corporations, &c. to fines, &c. reserved.

34. Provided always, that nothing herein contained shall extend to deprive any corporation or any person or persons of any rights which they now have under their respective charters or patents to any fines, amerciaments, or recognizances whatsoever.

Actions again sheriffs. &c.

Treble costs.

35. If any action upon the case, trespass, battery, or false imprisonment shall be brought against any such sheriff as aforesaid, or any other person or persons who in his aid or assistance or by his commandment shall do any thing touching his aforesaid office, or for or concerning any matter, cause, or thing by them or any of them done by reason thereof, and if upon such trial a verdict shall be had for such defendant or defendants, or if the defendant or defendants shall have judgment upon demurrer, or if the plaintiff or plaintiffs therein shall be nonsuited or suffer any discontinuance thereof, that in every such case the defendant or defendants shall have his or their treble costs, which he or they shall have sustained by reason of such action or suit, for which the said defendant or defendants shall have the like remedy as in other cases where costs by law are given to the defendant [Rep. 5 & 6 Vict. c. 97. s. 2.]

[Ss. 36, 37 rep. 36 & 37 Vict. c. 91. (S.L.R.)]