
    Elijah Smith et al. v. State of Mississippi.
    1. Justice of the Peace. Jurisdiction. Holding defendant to grand jury. Bail bond. Code 1892, gg 2420, 2421.
    Under Code 1892, §§ 2420, 2421, giving justices of the peace jurisdiction, and requiring them to try and dispose of misdemeanors, a justice of the peace is without authority to hind a defendant over to appear before the circuit court to await the action of the grand jury on a charge of having committed a misdemeanor.
    2. Same. Duty of justice of the 'peace.
    
    If an accused he charged before a justice of the peace with the commission of a misdemeanor, it is the duty of the justice to try and dispose of the charge; if he fail to do so, and require the accused to give a bail bond to await the action of the grand jury on the misdemeanor charged, the bond will be void.
    3. Same. Code 1892, g 1394.
    Nor will such a bond be saved by Code 1892, § 1394, providing that all bonds conditioned for the appearance of any person before a court in a criminal case, upon the execution of which such person was freed from custody, shall be binding, since there was no power in the justice of the peace to take such bond.
    Eeom the circuit court of Lauderdale county.
    Hon. HobeRT E. Cochran, Judge.
    Smith and others, appellants, were defendants in the court helow to a proceeding hy the state to recover on a hail hond alleged to have been forfeited.
    In November, 1903, a justice of the peace required Smith, one of the appellants, to execute an appearance bond in the penalty of $1,000, conditioned that he appear at the next term of the circuit court to await the action of the grand jury on the charge of “conspiracy to rob,” which bond he executed, with the other appellants herein as sureties. At the January term of the circuit court, 1904, Smith was indicted by the grand jury for grand larceny, and, failing to appear, the court rendered a judgment nisi against Rim and Ris Rondsmen for tRe full penalty of tRe Rond. On February 8, 1904, a scire facias was issued reciting tRat SmitR was recognized to appear at tRe January term, 1904, to answer tRe state on a cRarge of grand larceny, and tRat Re and Ris sureties failed to appear wRen called, and tRat tRe court rendered judgment against SmitR and Ris Rondsmen for $1,000, and commanded tRe sheriff to cite SmitR and Ris Rondsmen to appear at tRe July term, 1904, and sRow cause wRy said judgment nisi sRould not Re made final. TRe scire facias was duly served. TRe defendants appeared, and filed a plea, in wRicR tRey alleged, infer alia, tRat SmitR, witR tRe otRer appellants as sureties, entered into a Rond to answer tRe state on a cRarge of conspiracy to roR; tRat tRe justice of tRe peace Rad no autRority to take a bond to answer tRe cRarge of conspiracy to roR. TRe district attorney demurred to tRis plea, and tRe demurrer was sustained Ry tRe court, and tRe court rendered a final judgment against appellants for $1,000. From tRat judgment tRey appealed to tRe supreme court.
    
      8. A. Witherspoon, and R. A. Collins, for appellants.
    
      J. N. Flowers, assistant attorney-general, for appellee.
    [TRe briefs of counsel in tRis case were witRdrawn or lost from tRe record before it reached tRe reporter; Renee a synopsis of them is not given.]
   Whitfield,) O. J.,

delivered tRe opinion of tRe court.

TRe justice of tRe peace in tRis case on November 1, 1903, bound SmitR over to appear before tRe circuit court to await tRe action of tRe grand jury on tRe cRarge of conspiracy to rob. He Rad no power to do tRis, and tRe bond is void. Code 1892, .§§ 2420, 2421, provides tRat justices of tRe peace Rave final jurisdiction of misdemeanors, and must try and dispose of tRem according to law. TRe justice of tRe peace sRould Rave tried Smith, and acquitted him or convicted him. The only bond he could take of Smith on this charge is the one provided for in sec. 2423, Code 1892, -which is a bond for his appearance before him, the justice of the peace; and this bond he can only return to the circuit court in case the penalty exceeds $20.0; and the only forfeiture that the circuit court could take on such a bond would be on account of defendant’s default in appearing before the justice, and not on account of his default in appearing before the circuit court to answer an indictment of the grand jury. This case is not saved by Oode 1892, §§ 1394, 1395. This is a case of absolute want of power on the justice’s part to take any such bond. See Thomm v. State, 35 Ark., 327; 5 Cyc. of Law, p. 86, and authorities there cited. The demurrer of the district attorney to the plea of the defendant to the judgment nisi for $1,000 should have been' overruled. The plea was good on that ground set up in it that “the said justice of the peace had no authority to take the bond” requiring the defendant to appear to answer an indictment by the grand jury, where the charge before him was a mere misdemeanor. The demurrer to the scire facias should have been sustained, and the demurrer of the district attorney to the plea to the judgment nisi for $1,000 should have been overruled.

Reversed, demurrer to scire facias sustained, demurrer to the flea of defendant to the judgment nisi for $1,000 overruled, and the suit dismissed.  