Potter v. Kingsbury , 4 Day 98 ( 1809 )

By the Court.

Though all our courts are created by statute, yet they necessarily possess certain incidental powers at common law. A justice of the peace, when holding a court of inquiry to determine whether there is sufficient cause to bind over to some higher court a person prosecuted for an offence not within his final jurisdiction, has the power to adjourn, for the purpose of enabling the public, or the prisoner, to obtain necessary witnesses. He has not the power to command a sheriff, or any other officer, to hold such prisoner until the time of the adjournment; but he may commit to gaol for safe keeping, unless he offers bail for his appearance; and then by the statute [tit. 1. s. 4] that no man shall be imprisoned., if he wilt give sufficient security, bail or mainfirize for his appearance, is'c. it becomes the duty of the justice of the peace to take bail, if good and sufficient be offered, for the appearance of the prisoner. If he neglects to appear, then such justice of the peace may call him and the bail; and in case of default of appearance, he may make the proper entry thereof. He does not render judgment, that the recognisance is forfeited, which is wholly unnecessary; but he merely makes an entry of such default of appearance, and neglect to comply with the conditions of the recognisance, to be used as evidence of the fact, when a suit is brought on such recognisance before a court having jurisdiction. There is no more danger ih trust» ing justices of the peace with this power, than with that ta^nS f°r the appearance of a prisoner before a court of final jurisdiction ; and it will not only give a reasonable opportunity to persons prosecuted for offen* ces to prepare for their defence, but will save them from imprisonment. Justices of the peace, however, in the exercise of this power, should take bonds sufficient to enforce an appearance of the prisoner, according to the nature and enormity of the offence.

In this case, the justice of the peace, by whom this recognisance was taken, conducted according to law ; and the court are of opinion, that an action of debt will lie on such recognisance.

Judgment affirmed.