
    The People vs. Koeber.
    The jurisdiction of a court or magistrate of special and limited authority is not to be presumed, but must be averred and proved. Per Beardsley, J.
    In such case a general averment of jurisdiction is not sufficient; but the facts necessary to confer it must be set forth. Per Beardsley, J.
    In an action upon a criminal recognizance taken before one of the special justices of the city of New-York, conditioned that the accused appear and answer at the next court of general sessions &c., the declaration must set forth' the facta showing the magistrate’s right to require bail in the particular case.
    Where the declaration -stated that the accused was brought before the special justice, and was on oath in due form of law charged with the commission of a burglary, but failed to show any other authority to require bail; held, insufficient.
    The proceedings which evince the authority of the justice to require bail from the accused must substantially appear in the recognizance, or it will be void. Per Beardsley, J.
    The recognizance should so far state the crime charged as to show the case to be one in which the special justice had a right to take bail. Per Beardsley, J.
    If the statement be that the crime charged before the justice was burglary, without showing that it was below the first degree, the recognizance will be invalid. Per Beardsley, J.
    So if the recognizance state merely that the prisoner was charged with the offence, without showing in some way that there was probable cause for believing him guilty.
    
      The recognizance may be either to appear and answer the particular charge set forth, or to appear and answer what shall be objected against the party. Per Beardsley, J.
    Debt on recognizance. The declaration alleged that “ heretofore, to wit, on &c., at &c., John Brown was brought before John Taylor, one of the special justices for preserving the peace in the city of New-York, and was on oath in due form of law charged with the commission of a burglary, and thereupon the before named defendant [Philip Koeber] personally came before the said Robert Taylor &c., and entered into a recognizance in writing, signed with his own hand, by which recognizance the said defendant acknowledged himself to owe the said plaintiffs the sum of three hundred dollars; and the said defendant did then and there consent, grant and agree, that the said- sum should be made of-his goods and chattels, lands and tenements, and levied to the use of the said plaintiffs, if the said Brown should fail in performing the condition of the said recognizance; which condition was, that the said Brown should persónally appear at' the then next court of general sessions of the peace to.be holden in and for the city and county of New-York &c., and then and there answer all such matters and things as should be objected against him; and should abide the order of said court, and not depart" without their leave” &c. - The declaration then alleged that the recognizance was duly filed of record with the clerk of the court of general sessions, that an indictment was after-wards found against Brown in the said court for the “ aforesaid -burglary of which he stood charged,” and that he did not appear- and abide the order of the court, but made default &c. The defendant demurred, assigning the causes specially, and the plaintiffs joined in demurrer.
    
      E. L. Lynch, for the defendant.
    The declaration is bad, inasmuch as it fails to set forth the facts necessary to show the jurisdiction of the. justice who took the recognizance. (Dakin v. Hudson, 6 Cowen, 221; Adkins v. Brewer, 3 id. 206; Lawton v. Erwin, 9 Wend. 233; Cleveland v. Rogers, 6 id. 438.) The recognizance itself, moreover, as stated in the declaration, is defective both in form and substance. (The State v. Smith, 2 Greenl. Rep. 62; Commonwealth v. Daggett, 16 Mass. Rep. 447; Commonwealth v. Downey, 9 id. 520; The State v. Carson, 1 Fairf. 473; Barb. Crim. Treat. 504; Davis’ Just. 102; The People v. Blankman, 17 Wend. 252.)
    
      J. R. Whiting, for the people.
    The facts necessary to give jurisdiction may be omitted in declaring upon a recognizance. So are the precedents. (Saund. Pl. & Ev. 751; 2 Chitty's Pl. 227.) But conceding the rule to be otherwise, still the present declaration is good. It sets forth that Brown was brought before the justice on a charge of burglary, and this authorized him to take bail. [Fowler v. The Commonwealth, Monroe, 130; Commonwealth v. Kemberlain, 6 id. 44; Commonwealth v. Gordon, 15 Pick. 193; M’Carty v. The State, 1 Blackf. 338.) As to the recognizance itself, the declaration shows it to be in the usual form.
   By the Court,

Beardsley, J.

It is an elementary principle that no proceeding of a court or magistrate of special and limited power will be, held legal, unless competent authority for the purpose is shown. Jurisdiction in such cases is not to be presumed, but must be proved. A general averment of jurisdiction amounts to nothing; but the facts upon which it depends must appear. (Cleveland v. Rogers, 6 Wendell, 438; Lawton v. Erwin, 9 id. 237; Ladbroke v. James, Willes’ Rep. 199; Sollers v. Lawrence, id. 413; Dakin v. Hudson, 6 Cowen, 221.)

The act of a magistrate in letting a person charged with crime to bail, assumes that sufficient cause has been shown, for committing him, that the offence charged is bailable by the magistrate, and that the sureties offered are sufficient. (Barb. Cr. Law, 499, 506 ; 2 R. S. 708 to 710, §§ 13, 20, 21, 25, 29.) Bail in such cases is given by recognizance, and the magistrate’s authority to take it in the particular instance must-appear, or his act will be adjudged void. (Vose v. Dean, 7 Mass. R. 280; Commonwealth v. Loveridge, 11 id. 337; Commonwealth v. Otis, 16 id. 198; The People v. Brown, 23 Wend. 49, referring to 2 R. S. 286, § 59.)

The proceedings which evince such authority, including a statement of the crime charged, must substantially appear in the recognizance. In the case of The State v. Smith, (2 Greenl. 62,) Mellen, Ch. J. said: “ It is settled law that a recognizance should state the grounds on which it is taken, so that it may appear that the magistrate taking it had jurisdiction and authority to demand and receive it.” In The Commonwealth v. Daggett, (16 Mass. Rep. 447,) it was again said: “ It is essential to a recognizance of this kind that it shows the cause of taking it.” (See also Bridge v. Ford, 4 Mass. Rep. 641; Commonwealth v. Downing, 9 id. 520; The People v. Blankman, 17 Wend. 252; The People v. Brown, 23 id. 47; Barb. Cr. Law, 503; Harrington v. Brown, 7 Pick. 234; Waldo v. Spencer, 7 Conn. Rep. 71.) Although the offence need not be stated with the same degree of particularity ’as in an indictment, it must be described with so much certainty as to show the case to be one in which the officer was authorized by law to take bail.

The recognizance may be either to appear and answer what shall be objected against the party, or to appear and. answer the particular charge set out in thé recognizance; (The State v. Stout, 6 Halst. 133, 134; Commonwealth v. M’Neil, 19 Pick. 127; The People v. Stager., 10 Wend. 431; Queen v. Ridpath, 10 Mod. 152;) and it must be filed in the court where the accused is bound to appear. (2 R. S. 710, §§ 32, 33; The People v. Van Eps, 4 Wend. 393; Darling v. Hubbell, 9 Conn. R. 356.) .

In the case now before the court, the recognizance was taken before one of the special justices of the city of New-York. A special justice may let to bail in all cases of felony where the, imprisonment in the state prison cannot exceed five years;” (2 R. S. 710, § 29, sub. 3;) and by a subsequent statute his power is extended to all cases triable in courts of general sessions. (Sess. Laws of 1833, p. 11, § 9; 2 R. S. 593, § 29, sub. 2, 2d ed.) Courts of general sessions may try for all crimes and misdemeanors not punishable with death, or imprisonment in the state prison for life.” (2 R. S. 208, § 5, sub. 2.)

The declaration alleges that the accused for whom the defendant became bail was brought before the justice, and was on oath in due form of law charged with the commission of a burglary ;” and that thereupon the defendant entered into the recognizance. No other ground for demanding or receiving the recognizance is set forth; and conceding the true interpretation of the declaration to be, that the ground thus stated appears in the recognizance itself, as it should, still the latter is defective. It merely shows that the accused was charged with the commission of a crime; not that there was probable ground to believe him guilty, or any cause for committing him to prison unless bail was given. Simply showing that a party was charged with a crime is wholly insufficient. (2 R. S. 709, §§ 20, 21, 25.)

But there is another objection. The crime charged is burglary, and that is of various degrees; the first .of which is punishable by imprisonment in the state prison for life. (2 R. S. 669, § 21; id. 700, § 12.) The character and grade of the of-fence should therefore have appeared, so as to leave no doubt respecting the authority of the special justice to take bail in the particular case. We are dealing with the act of a magistrate of limited authority; and no intendment is admissible, but his jurisdiction must be affirmatively shown. This rule is without an exception where the object is to uphold and enforce such acts. The defendant is entitled to judgment on the demurrer.

Ordered accordingly. 
      
      
         See The People v. Rundle, (6 Hill, 506.)
     
      
       See Cornell and others v. Barnes, (ante, p. 35,) and note (e) to that case.
     