
    John Tyler, Governor, &c. v. David Greenlaw.
    November, 1827.
    Justice of Peace — Power to Bali, — A Justice of the Peace, before whom is brought a prisoner charged with a felony, has power to bail him, where only a slight suspicion of guilt falls on the party; and a recognizance taken before such Justice, conditioned for the appearance of such prisoner before the Examining Court, is good, and a recovery may be had thereon, if the party-makes default.
    ¡Recognizance — Declaration on — Sufficiency of, — Although the condition of a recognizance does not specify the court-honse of the county as the place at which the prisoner is to appear, and the declaration on the recognizance avers that such was the condition, yet on nul tiel record pleaded, judgment ought to be rendered for the plaintiff, because the statute points out that as the only place where the examination shall be had.
    This was an adjourned case from the Superior Court of Law for the county of Eichmond. It was an action of debt, brought in the said Superior Court, on the following recognizance: “Be it remembered, that on the 8th September, in the year of our Lord 1826, David Greenlaw, of the county of Eichmond, labourer, James Shepherd, of the said county, labourer, Dominic Bennehan, of the said county, labourer, and Eichard O. Jeffries, of the said county, labourer, came before us, three of the Commonwealth’s Justices of the Peace for the county of Richmond, and severally acknowledged themselves to be indebted to John Tyler, Esquire, Governor or Chief Magistrate of the Commonwealth of Virginia, and his successors, that is to say; the said David Greenlaw, in the sum ot three thousand ’'"dollars, and the said James Shepherd, Dominic Bennehan, and Richard O. Jeffries, in the sum of one thousand dollars each, to be respectively levied of their lands and tenements, goods and chattels, if the said David Greenlaw shall make default in the performance of the condition underwritten.
    . “The condition of this recognizance is such, that if the above bound David Green-law shall personally appear before the Commonwealth’s Justices assigned to keep the peace, in and for the county aforesaid, on Monday, the 18th day of this month, then and there to answer the Commonwealth aforesaid, for and concerning a charge against him, on behalf of the Commonwealth, for knowingly and feloniously passing at different times, a considerable amount of notes, counterfeit on the Bank of Virginia, to James V. Berrick, with which the said David- Greenlaw stands charged before us, and to do and receive what by the said Court shall then and there be ordered and judged, and shall not depart thence without the leave of the said Court, then this recognizance shall be void, or else to remain in full force and virtue.
    “D. Greenlaw, (Seal.)
    “James Shepherd, (Seal.)
    “Dominic Bennehan, (Seal.)
    “Richard O. Jeffries, (Seal.) “Acknowledged before us,
    “John Darby,
    “Moore F. Brockenbrough,
    “Thomas E. Barnes.”
    The declaration sets forth the recognizance, and condition, according to their effect, stating the condition to be that the said David Greenlaw should personally appear before the Commonwealth’s Justices assigned to keep the peace, in and for the county aforesaid, on Monday, the 18th day of September, 1826, at the court-house ox the said county, &c. to answer, &c. and should do and receive what by the said Court, that is, the Court to be held at *the court-house of the county aforesaid, on the 18th September, 1826, for the purpose of examining into the fact with which the said David stood charged as aforesaid, should then and there be ordered and adjudged; it refers to the recognizance as now remaining of record in the County Court of Eichmond; it avers the breach of the recognizance in this, that the said David Greenlaw did not personally appear before the Commonwealth’s Justices assigned to keep the peace for the said county, at the time aforesaid, and at the court-house aforesaid, at which time and place, it also avers, that the said Justices did hold a Court for the examination of the fact with which the said David stood charged, and vouches the record of the said Examining Court; and demands the penalty of the recognizance.
    The defendant demurred generally to the declaration ; and also pleaded nul tiel record, as to the supposed recognizance ;■ and issue was joined on the demurrer and plea by the Attorney for the Commonwealth. The record exhibits a transcript from the record of the Examining Court, by which it appears that the default of the defendant is recorded, and the recognizance is ordered to be recorded and estreated.
    The Superior Court adjourned to the General Court, the questions arising on the demurrer and plea, for its decision.
    
      
       See principal case cited in Archer v. Com., 10 Gratt. 636.
    
   FIELD, J.

delivered the opinion of the Court.

(After stating the case.) The only question which arises on the demurrer to the declaration, is this: Had the Justices of the Peace, before whom the recognizance was taken, power to let the said Greenlaw to bail, and to take the recognizance in the declaration mentioned? The Court is of opinion, that the act of Assembly concerning bail in *criminal cases, (1 Rev. Code, p. 595-6,) does authorise a Justice of the Peace to let any prisoner to bail, who may be apprehended for any crime, of which only a light suspicion of guilt falls on the party, although such crime may be punishable with death, or by confinement in the Penitentiary, such being the plain and obvious meaning of the statute. This general power is not taken away by the act concerning criminal proceedings against free persons, (1 Rev. Code, p. 598,) which directs that the Justice before whom a free person shall be charged with treason, murder, or other crime or misdemesnor, if in his opinion such offence ought to be enquired into by the Courts of his Commonwealth, to commit the person so charged to the county or corporation jail. The Legislature did not intend thereby to diminish the rights ->of the prisoner, nor divest the Justices of the Peace of their power in relation to bail. It would be giving too harsh a construction to this statute, to give it that interpretation, especially when there is nothing in it which cannot be reconciled with the provisions of the statute concerning bail. The very act of letting to bail, supposes a previous commitment to prison, and whether that imprisonment is by being in custody of an officer of the law, or within the walls of a jail, is wholly immaterial. The Court is therefore of opinion, that the Justices had authority to let the said Greenlaw to bail, and, consequently, the capacity to take the recognizance in the declaration mentioned.

The question arising on the issue made up on the plea of nul tiel record, is also adjourned. Upon inspecting the transcript of the recognizance shewn in evidence, a majority of the Court is of opinion, that there is such record as is set forth in the declaration, because, although the condition of the recognizance does not specify the court-house as the place at which the said Greenlaw is to appear, yet, as that is the place directed by the statute at which the Justices are directed to examine into offences, no other place can be intended by the recognizance. We are therefore *of opinion, that judgment should be rendered for the plaintiff, on that issue.

The following is to be entered as the judgment of the Court.

The Court is of opinion, and doth decide, that the law upon the demurrer of the defendant to the declaration of the plaintiff, is for the plaintiff, and there being shewn in evidence, such record as the plaintiff in pleading hath alleged, judgment should be rendered for the plaintiff on the issue joined, which is ordered to be certified. 
      
       Absent, Dade and Semple, J.
     