In the Matter of Daniel Esten

Dtjkfee, J.

We understand that the Court of Common Pleas, in effect, whatever may have been the form of its action, granted a continuance of the complaint against the relator, on his motion, on condition that he should pay the costs of the state for the term, and that, upon his refusal to pay them, the court had his recognizance called and defaulted. The relator contends, that, inasmuch as the statutes provide that the costs shall be a part of the sentence, thus making them a part of the punishment, he ought not to have been called upon to pay any portion of them before conviction. This argument would be valid if the relator had been called upon to pay the costs of the state, for the term, as part punishment, in advance of his conviction ; but he was simply called upon to pay them as a condition of the continuance, for which be bad asked, and wbicb it was within tbe discretion of tbe court either to grant or refuse. Tbe grant being made upon a condition to be performed by the relator, • became a refusal on bis declining to perform it. We think tbe Court of Common Pleas, in its action in tbe premises, did not exceed its powers; whether it exercised its discretion wisely or not, we do not feel called upon to inquire.

For this reason, without determining whether, in any view, a writ of certiorari would have been tbe proper remedy, — tbe question wbicb was not argued, — we dismiss tbe application.

Application dismissed.