#### THE STATE *vs.*ASA EDNEY.

Dec. 1839

The obligation of a recognizance entered into by a party before a single magistrate to appear and answer a criminal charge, does not depend upon the enquiry whether the court before which the party is required to appear, has jurisdiction of the particular crime charged; but upon the duty and power of the magistrate to examine and admit such party to bail. Hence, under the act of 1715, 1 Rev. Stat. ch. 35> sec. 1, prescribing the duty and powers of magistrates out of .court, in examining criminals and taking bail, a recognisance taken for the appearance of a party at the County Court is good, and, if the party fail to appear, according to the condition of his obligation, may be enforced, although the offence charged is cognizable only in the Superior Court.

The words of the act of 1715, prescribing that the magistrate shall take recognizances from the informer and witnesses, to appear at the next court “where the matter is cognizable,’1 and that the recognizances shall be returned into the office of the “the court, wherein the matter is to be tried,” are merely directory as to the time and place of re. turning the proceedings, so that they may be acted on speedily and efficiently, for the advantage of each side. They mean only, that the return shall be made to the next term of the court, in which, according to the recognizance, the party is to appear, so that the party shall notbe required to appear at one term, or in one court, and the recognizance be returned to a subsequent term, or to a different court.

The defendant acknowledged a recognizance before a Justice of the Peace for Buncombe county, in the sum of $ 100, to be void on condition that a certain negro slave, called George, should make his personal appearance at the next term of the Court of Pleas and Quarter Sessions, to be held for the county of Buncombe, at &c., on &c., then and there to answer to a charge of the State, and not depart thence without leave of the said Court. The slave failed to appear, and the failure being recorded, a *scire facias*issued to enforce the forfeiture of the recognizance. The defendant pleaded *nul tiel*record, and a special plea that the slave was charged with the crime of burglary, and that the said County Court had not jurisdiction thereof, but only the Superior Court for the County of Buncombe, and by reason thereof that the recognizance was void. After a decision against him in the County Court, the defendant appealed to the Superior Court; and on the trial there, on the last circuit, before his honor *379Judge PuarsoN, he relied on the single point, that, for the reason set forth in the special plea, the justice of the peace could not take the recognizance, and that the same was void. In support of the plea he gave in evidence the warrant on which the slave was arrested, which charged him with “ being concerned in breaking into the smoke-house of James Kincard, in the night time, and taking a quantity of pickled pork.” But the Court was of opinion that the recognizance was valid and sufficient in law, and there was consequently a judgment for the State, and the defendant appealed.

No counsel appeared for the defendant in this Court.

*The Attorney General*for the State.

Ruffin, Chief Justice,

after stating the case as above, proceeded as follows: It may be remarked in the first place, that there was no evidence to sustain the plea that the charge was one of burglary, so as not to be, for that reason, within the jurisdiction of the County Court. The condition of the recognizance does not so express; and the warrant falls short of making a case of burglary, by omitting several of its essential requisites, as, for example, that the breaking was into the dwelling house, or that the smoke house was a part of the dwelling house, or within the curtilage. But supposing this to have been otherwise, it is quite clear, we think, that the defendant’s objection is unfounded in law.

The obligation of the recognizance does not depend upon the enquiry whether the Court, before which the party is required to appear, has jurisdiction of a particular crime charged against the party, but upon the duty and power of the magistrate to examine and admit such party to bail. By the act of 1715, 1 Rev. Stat. ch. 35, sec. 1, the duty of examination by a magistrate before commitment is enjoined; and it is further prescribed, that the magistrate shall admit the party to bail, if bailable. The mode of letting to bail is -not specified; but it must be inferred that such method was meant as was authorized by antecedent laws, or such as might subsequently be enacted. This certainly includes a recognizance acknowledged before a justice of the peace and by him returned into a common law court of record and there enrolled, as enacted by ancient statutes and practised almost immemorial-*380iy_ A justice of the peace has, unquestionably, the power to take recognizances for the appearance of persons, generally, to answer for any criminal matter. But it is said that if the court cannot take an indictment for the offence charged, or try the same, the party’s appearance in that court is nugatory, and therefore the recognizance must be inofficious. We think otherwise; for if that court may not try and punish the accused, it may, at least, examine further into the case, so as to ascertain what court has the jurisdiction to try and punish, and may commit or bind the party over to answer in that Court. It is often a nice point to determine what court has jurisdiction. The duty of judging correctly on that point is not imposed on the magistrate, in the first instance, so imperatively as to make his mistake on it a justification of the accused for disregarding his recognizance, and by so doing, elude the service of other process and escape punishment altogether. The recognizance obliges the party to appear according to it, in order that the public justice may not be defeated; and that if he was bound at first to an improper court,, he may be sent to the proper court, there to have his guilt or innocence duly and fully enquired of. It is true, the act of 1715 says that the magistrate shall take recognizances from the informer and witnesses, to appear at the next court, “where the matter is cognizable,” and that the recognizances shall be returned into the office of “ the court, wherein the matter is to be tried;” and upon those provisions this objection is partly founded. But we think the act in that part of it is merely directory as to the time and place of returning the proceedings, so that they may be acted on speedily and efficiently, for the advantage of each side. It means only, that the return shall be made to the next term of the court, in which, according to the recognizance, the party is to appear; so that the party shall not be required to appear at one term or in one court, and the recognizance be returned to a subsequent term or to a different court. The point made in this case is not at all within the purview of the act; and we are not aware of any case and do not perceive any reason to support it.

Per Curiam. Judgment affirmed.