4 Del. 553 (Del.Oyer.Ter. 1844), State v. Mousely

Citation4 Del. 553
Judge PanelJudge Layton dissented.
CourtCourt of Oyer and Terminer of Delaware

Page 553

4 Del. 553 (Del.Oyer.Ter. 1844)




Court of Oyer and Terminer of Delaware.


Power of magistrates to settle cases of assault and battery.

Indicted for assault and battery. Plea, autrefois convict.

The defendant was arrested and taken before Justice M‘ Caulley, who bound him over to appear at court. The prosecutor afterwards agreed to settle the matter, and went with defendant before Justice Veach, who allowed them to compromise, on payment of costs.

It was contended on the part of the defendant, that the act of assembly gives authority to any justice of the peace, whether the committing magistrate or another, to permit the parties to settle cases of assault and battery. ( Dig. 360.)

Court .-The act must be construed as a whole, and neither of the clauses referred to is to be taken separately. This is an act giving jurisdiction. Before it, the justice had no power to try cases of assault and battery; and, to preserve the constitutional right of trial by jury, the defendant's consent is required in all cases, before the justice can proceed. Either on his refusal to be tried by the justice; or on the refusal of the justice, under the discretion given him by the law, to try the case; he must hold the defendant to bail for his appearance at...

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