*NOVEMBER TERM 1829.

Judges Present.*

*Stuart, ■ Daniel,*

*Brockenbrough, Semple,*

*Johnston, Parker,*

*Smith, Field,*

*Allen, May.*

#### The Commonwealth v. Bartlett and Others.

November, 1829.

Breach of Peace — Right of Justice to Recognize Party to-Appear before Circuit Court. — Upon complaint of breach of the peace before a justice of the peace, he cannot recognize the party accused to appear before the circuit court to answer the charge.

Benjamin Bartlett, being brought before a justice of the peace of the county of Harrison, for a breach of the peace, entered into a recognizance, with George I. Williams his surety, with condition that Bartlett should appear at the next circuit court of the county, to do and receive what should be then and there injoined him by the said court, and, in the meantime, to keep the peace and be of good behaviour towards the commonwealth and all its citizens, and especially towards John Smith, his wife and children, and property. Bartlett failed *206to appear at the circuit court, according to the. condition of this recognizance; and that court, on the motion of the attorney for the commonwealth, ordered a scire facias on the recognizance, against Bartlett and Williams. They appeared to the scire facias, and put in a general demurrer to it. Whereupon the court, with the assent of the parties, adjourned the following questions to this court:

*1. Has a justice of the peace power and authority to recognize a party charged before him with a misdemeanour, to appear before the circuit court of the county, to answer the same?

2. If such general power does not exist, is such a recognizance void, as to the appearance of the party only, or void as to all purposes?

3. What judgment ought the court to give on the demurrer to the scire facias in this case?

*

Johnktok, J., did not sit in any ot ttie cases here reported; and Semple, J., was absent in Bartlett's, and Jones’s cases.

FIELD, J.,

delivered the opinion of the court. Regarding the recognizance upon which the scire facias in this cause issued, as an ordinary recognizance to keep the peace and be of good behaviour, taken by a justice of the peace; and being of opinion, that a justice of the peace, in such a case, has no authority to bind the party to appear before a circuit court; a majority of this court is of opinion, and doth decide, that the condition of the recognizance, requiring the appearance of Bartlett before the circuit court, is void to all purposes; and the demurrer to the scire facias, should, therefore, be sustained, and judgment rendered for the defendant thereupon.

MAY, J,

This is an ordinary recognizance to keep the peace, entered into according to law, and essentially in due form, except that the condition requires the defendant to appear at the circuit, instead of the county, court. In England, the statute directs that the justices shall return such recognizances to the next sessions; but we have no such statute here. Our circuit courts have jurisdiction to require surety of the peace: and, therefore, the magistrates mat' take recognizances in such cases, with condition for the appearance of the party bound, at either the county or the circuit court. Upon this ground, I am of opinion, that judgment should be rendered for the commonwealth on the demurrer to the scire facias.

In this opinion, judges BROCKEN-BROUGH and PARKER concurred.