#### THE STATE *vs.*B. M. EDNEY.

A Judge, being possessed of jurisdiction over the person of a prisoner, by any proceeding before him, may adjudge that he be allowed tail, asd make an order that his recognizance be taken by a Justi.ee or1 Justice* of the Peace, named by him, in a sum fixed by him ; and a recognizance taken according to the order, is valid.

An instrument of writing, executed with intention to comply with such ’ an order, in form, a bond, signed and sealed by the prisoner and his surety, bn the prisoner's being let out of prison, and received by the Justices named, by them'returned to the proper Court;, and by its orejar filed as a record, is a *recognizance.*

Taking a recognizance consists merely in making and attesting a memorandum of the acknowledgement of a' debt due to the State, and of the condition on which it is to be defeated.

Presenting a petition to a Judge for a writ of *habeas eorpus*gives him jurisdiction of the subject, and the parties may waive all errors and dis-penso with all forms, in the proceedings on it.

Where a petition for a *habeas corpus*was presented to a Judge in order that the petitioner might be admitted to bail, and the Judge gave nó formal judgment, but informally expressed his opinion in writing on the petition that the prisoner was entitled to bail, and signed his name *officially*to a sheet of paper that a writ ‘might issue if the parties desired it; and, by the consent of the Solicitor for the State, suggested that bail might'be taken without any further proceedings on the petition, and fixed the amount in which bail should be taken, and named the Justices of the Peace to take it', and tiie prisoner was afterwards dis- ■ charged from prison, on his entering into a recognizance together with the defendant as his rarefy, in the sum fixed by the Judge, before the Justices named by him,-and the prisoner and defendant subscribed their names and affixed their seals to thq recognizance, this is plenary-proof of a waiver of all errors in the proceedings.

It *seems*that the defendant would be *estopped*by the recital that, “ upon application to the. Judge, he bad ordered that the prisoners bé allowed bail in the sum of $2,000 each, and had authorized the two Justices to take the recognizance.”

The cases of the State *vs.*Hill, Í» Ired., 398, 'and Iredell *vs.*Barbee, 9 Ired. 260, cited. ' , ’

This was a scire *famas*to show cause why an execution *72should not issue on a forfeited recognizance, and.was tried before .Eka.dk, J., at tke Superior Court* of Buncombe . county, Term 1864, on tbe plea of *nul tiel record.*„

The State gave in evidence a record of the Superior Court of Law of Buncombe county, setting forth that at Spring Term of that Court, £<B. J. Smith and W. W. MeDowell, Justices of the Peace of said county, brought into Court paper writings of the tenor following, to wit: (Here was inserted the petition of J. A. Shoek and five others, addressed to the Hon. William M. Shipp, one &c., praying for a writ of *habeas corpus,*in order that .chey might be bailed.) The record then proceeded, ££ Upon the facts stated in this petition, I think the parties entitled to bail. 'Therefore, by the suggestion of the Solicitor, without the formality of a writ, and to save trouble and expense, I suggest that they be admitted to hail in the sum of two thousand dollars each, and that B. J-. Smith and ,W. W. McDowell take bond for their appearance at the first Superior- Court to. be held after this time. If the suggestion is not adopted, the writ must issue above niy name which is signed near the bottom of this '•sheet.

February 5th, 1864, . W.- M SHIPP.

W. M. SHIPP, J. S. C. L. E.

*73Know all men by these presents, that we, J. A. Shook, Carol Walton, James T. Holbert, Daniel Mayberry, Q-. W. Walker and B. M. Edney, are held and firmly bound £o tho State of North Carolina in the sum of two thousand dollars, for the faithful payment whereof we hereby bind ourselves, our heirs, executors and administrators. '

The condition of the above obligation is such: Whereas, the above bounden, J. A. Shock, Carol Walton, James T. Holbert, Daniel Mayberry an¿ G-. W. Walker, have been regularly committed to-the common jail in and for the county of Buncombe in said State, charged with the crimes of Jareen y, robbery and burglary; and, whereas, on application to the Hon. W. M. Shipp, one- of the Judges of the Superior Courts of Law and Equity in and for said State, he has ordered that said last named parties be allowed bail in the sum of two thousand dollars each, the bond to be received by B. J Smith and W. W. McDowell, Justices of-the Peace: now if the said J. A. Shock, Coroí Walton, James' T. Holbert, Daniel May-berry and G. W. Walker, and each of them, shall well and truly make their and his personal appearance before the Judge of the Superior Court of Law, to he held in. and for the county of Buncombe aforesaid, on the 6th Monday after the 4th Monday in April, A. D,, 1864, and if they and each of them shall well and truly make their and his personal appearance before the Judge- of any Court of Oyer and Terminer that may be ordered to try criminal eases in and for the county of Buncombe aforesaid,, at any time.hefore the said Superior Court, and not depart the Court aforesaid until lawfully discharged, then ■the above obligation, to be void. Otherwise to remain in fall force and -effect; ánd it is expressly understood that the above bond is for the several appearance of the last *74named parties and that tbe forfeiture is to be tbe for* feiture of tbe said sum of two thousand dollars for tbe default of each and every ,one of said last named parties. *

Test:

P. 0. WALTON, ' [seal.]

JAMES. T. HOLBERT, [seal.]

his

DANIEL W MAYBERRY, [seal.]

mark

J. A. SHOCK, [seal.]

*Q.*W. WALKER, [seal.]

B. M. EDNEY, . [seal.]

Approved:

W. M- McDowell,, J. P.

Approved :

• B. J. Smith, J. P.

And the said papers and recognizance were ordered by tbe Court to be entered of record and were duly entered-accordingly, and at tbe same term of tbe Court tbe following proceedings were bad, to-wit: '

THE STATE ■ *vs.*JAS. A. SHOCK.

Tbe said defendant is calletl oii, bis recognizance and failed to answer and appear. Let *scire facias*issue according to law. Judgment *ni. si.*against defendant and •his surety B.-M,.Edney, for ,tha sum of two thousand dollars. - ‘

*75The Court adjudged that there was no such record as is supposed by the *scire facias.*

The State appealed.

Attorney General for the State.

*W. H. Bcdley*for defendant.

PearsoN, C. J.

In support of the plea^“ *nul tiel*record,” the defendant takes three grounds. This Court is of-opin-ioh that neither is tenable. ' 1. *“*Thd Judge had no power to authorize a Justice of the Peace to-take the recognizance . ’ ’

When a Judge, in a proceeding initiated before him,, adjudicates that the party is entitled to be discharged on ¿¡giving bail, and fixes the .amount, it has-long been the practice in this State, if the party be not prepared with sureties, for the Judge to authorize one or more Justices of the Peace, named by him. to take the recognizance; and. recognizances so taken have heretofore, as far back as the memory of the members, of this Court extends, always been deemed valid. This practice has prevailed so long, and is so obviously for the ease of the citizen, that . we would not be justified in now putting a stop to it, unless satisfied that it is in violation .of some important principles of law. It is true, a judicial function cannot be delegated : but after the Judge has decided that the party is entitled to be discharged on giving bail, and has fixed the amount, all of the questions presented by the proceedings, are disposed of, and nothing remains to be done but to carry the adjudication into execution ; and there is no reason why the Judge may not authorize a Justice of the Peace to do it; for all he has to do is to pass on the sufficiency of the surety, and to attest the *76*-,Moí*that the recognizance is entered into. Tbe former '"fíivolves no question of law, but it is a matter of fact, which may be ascertained by one man, who is authorized . to administer an oath, as well as another, and although in'strictness it may bo deemed an act of a judicial nature, it affords rather a technical, than a substantial objection to the practice. .The latter is a, mere ministerial act, which requires no exercise of judgment, either in respect ■ to a matter of law, or of fact; and is done by hearing the recognizance, and^making and attesting a “minute” or memorandum, by which a formal recognizance may be af-terwards drawn up, for instance : “ A B recognized in $1000 to appear at &c.” “OD recognizéd as surety in ■ alike sum.” In State *vs.*Hill, 3 Ire., 398, Judge Ruffin sanction* the practice, arid intimates an opinion, that it may be supported on the ground that a Justice of the Peace has' power,, *virtute officii,*to take recognizances; and the effect of the order of the Judge is simply to enable the Justice to obtain Control of the body, which he ■ could not otherwise do, having no power to issue a writ of *habeas corpus.*So, the authority conferred by the Judge, is uot a delegation ef a judicial function, hut the.substitution of one judicial officer in place of another, in respect to a minor part of the proceeding, the' main questions having been disposed of.

. 2. “The Judge made no adjudication allowing the ■prisoner to give hail, and no order authorizing the Justice of the Peace to take the recognizance.”

It'is true, -an adjudication that the prisoner is entitled to be discharged on giving hail, is not formally set out, and there is no formal order authorizing the justices to take the recognizance. But these things are done in substance, and all errors are waived by consent. The facts *77are — tbe petition is filed, and the Judge decides that the writ should issue ; and for this purpose signs his name *officially,*and directs the formal words to be inserted, and the writ to issue, if necessary ; but for the sake of saving ‘‘expense and trouble,” with the consent of the Solicitor for the State, he- expresses his opinion, that on the facta stated, the petitioners are entitled to be discharged on giving bail for their appearance, fixes the amount at $2000 for. each, and suggests that the recognizance be taken by two Justices of the Pease, whom he names, without the formality of a writ.. This suggestion is accepted and acted on.. The Justices named treat the matter as if the Judge had allowed the prisoners to give bail, and authorized them to take it. This is-done with the consent of the Solicitor, and of the prisoner, and of-the defendant, who was offered as surety, and they admit under their hands and seals, that, ‘•' *upon application to the Judge, he had ordered that the prisoners he alloioed hail in the sum of*$2,000 *each, and had authorized the two Justices to take the*recognizance,” which is done, and the orisoners thereupon discharged.

There is force in the suggestion that on the authority of Iredell *vs.*Barbee, 8 Ired., 250, . and United States *vs:*- 2 Brockenborough, 115, ‘these admissions made in a solemn manner, and acted on for the benefit of the prisoners, amount to an estoppel, and conclude the parties from gainsaying the matters admitted. However this may be, it is clear that if the admissions do not operate by way of estoppel they constitute *plenary evidence*of consent to “ waive all errors,” and dispense with all parts' of the proceeding preliminary to taking the recognizance, which it was in the power of the parties to dispense with.

*78It is true, “ conseut cannot' confer jurisdiction-; ’ ’ but we are of opinion that the jurisdiction of the Judge attached, and the proceeding Tjas regularly constituted before him, by filing the petition ; and all errors of form could be waived, and all formal parts of the' proceeding be dispensed with, by consent. For instance, if the parties consent that the body need not be produced, and, on the return, setting- out “the cause of detention,” the Judge disposes of the question, his ruling is. binding. This shows that, after the proceeding is regularly constituted, the parties may, by consent, treat the production of the body as a matter of form, and dispense with it, although it is usually the most important part of the pro-ceoding ; and the Judge cannot dispose of the matter, unless the body is produced, or considered as present, by consent, and error waived.

So; after the petitioh is filed, if tbe parties submit the questions on a “ case agreed,” waiving, by consent, the necessity for issuing a writ, I apprehend the ruling would be binding ; for the purpose of the writ is, simply, to compel tbe production of tbe body, together with the cause of detention ; and if tha# purpose be answered, the writ may be treated as matter of form, and waived by consent. Our case is stronger — for the Judge signed his name officially, with directions to insert the formal words ; and the writ, so far as his action was concerned, had issued, and further proceedings on it were dispensed with by consent.

It is also true that it was irregular for the Judge to give, his'opinion that, on the facts stated, th'e prisoners were entitled to be discharged on giving bail, and to fix the amount and name the Justices of the Peace, *before and. in anticipation*of the consent of the prisoners to waive error's and dispense with formal proceedings; but, as this *79consent was after war dsj while the proceeding wag pending, giren in the fullest manner, the irregularity was cured ; and it would have been an idle form for the Judge to repeat his opinion, and to-state the amount of the bail, and name the Justices of the Peace a second time.

3. *“*The recognizance is not in due form, and was not taken as authorized by the Judge.”

We stated, under the first head, what is necessary yi order to take a recognizance.

These requisites are complied with. The signing and sealing, by the prisoners and the defendant, w;ere not necessary to give validity to the recognizance ; but, in respect to *that,*it does no harm; and in respect to the consent to waive errors, &c., we have seen, under the second head, that it had a very important bearing.

Whether the defendant can be made to pay more than one sum of $2,000, by a proper construction of the instrument, is a question not presented in this casé.

There is error. Judgment reversed and judgment for the State according to *scire facias. .*