
    The State, Appellant, v. Emnitz, Respondent.
    1. Where a justice of the peace takes a recognizance to keep the peace, he is required to transmit to the clerk of the proper court only the recognizance, and not the affidavit and warrant.
    
      Appeal from Bollinger Circuit Court.
    
   Napton, Judge,

delivered the opinion of the court.

This was a recognizance to keep the peace, taken before a justice and returned to the circuit court. Upon the appearance of the prosecutor and the defendant in the circuit court, that court dismissed the defendant and refused to hear any evidence from the prosecutor and condemned him to pay the costs; for what reason the record does not satisfactorily show. The reason stated in the record proper is that no indictment was found by the grand jury; but this was no indictable offence, or may not have been. The reason given in the bill of exceptions is, that no other papers were sent up from the justice except the affidavit, warrant and recognizance. The statute does not require any thing to be sent up except the recognizance. (R. C. 1855, p. 1158, § 7.) When the parties appear, it is made the duty of the court to examine the evidence ; and the recognizance taken may be discharged or a new one taken, as the circumstances may require.

The other judges concurring, the judgment is reversed and the cause remanded.  