
    *Hamlett & als. v. Commonwealth.
    April Term, 1846,
    Richmond.
    1. Justices of the Peace — Authority to Grant Bail after Trial by Examining Court. — A justice of the peace has no general authority to admit to hail, after an Examining Court has sent the prisoner to the Superior Court for trial.
    2. Same — Authority to Grant Bail after Bail Refused by Examining Court. — If the Examining Court refuses to hail, or is silent, a justice has no right to . admit a prisoner to hail : though any Judge of the General Court may.
    3. Same — Taking Recognizance of Bail after Trial before Court. — After a trial before an Examining Court, a justice in taking a recognizance of hail, can only rightfully act as the agent of the Examining Court, in execution of its judgment, and after it has judicially decided that the prisoner is bailable, and fixed the amount of bail.
    4. Same — Same—What Recognizance Must Show.*— The recognizance of bail taken by a justice, of a prisoner sent on for trial by the Examining Court, must shew on Its face that the Examining Court had entered of record that the prisoner was bailable ; and had fixed the amount in which bail should be taken.
    This was a proceeding- by scire facias to enforce a forfeited recognizance, entered into by John A. JTuqua, Armistead, Ham-lett, and William A. Fuqua. The recognizance was entered into before James P. Marshall, a justice of the county of Charlotte, by John A. Fuqua, in the sum of 500 dollars, and by Hamlett and W. A. Fuqua, each, in the sum of 250 dollars, with the condition: .“That .whereas the said John, A. Fuqua stands "charged with stealing, taking and carrying away from the possession of Hillary Moseley, of four bank notes of one hundred dollars each; and also stands charged with receiving four stolen bank notes of one hundred dollars each, knowing them to be stolen; and the Court of the said county of Charlotte, after full and mature examination of the facts, were of opinion that the said John A. Fuqua ought to be further prosecuted for the said offences before the Circuit Superior Court of Haw and Chancery for the said county of Charlotte. Now if the said John A. Fuqua do and shall appear before *the Judge of the said Circuit Superior Court of Haw and Chancery for the county of Charlotte, on the first day of the next term of the said Court, and answer the Commonwealth, of and concerning the charges aforesaid; and shall then and there do and receive what shall be enjoined by the said Circuit Superior Court of Haw and Chancery; and shall not depart thence without leave of the said Court, then the above recognizance to be void, else to remain of full force and virtue. ’ ’
    The scire facias, after stating the condition of the recognizance, proceeded to state that the said John A. Fuqua had failed to appear before the Judge of the Superior Court of Charlotte at the time and place appointed, according- to the condition of the recognizance; and called upon the parties to shew cause why the Commonwealth should not have execution against them for the sums of money for which they had respectively bound themselves.
    The scire facias having been returned served upon Hamlett and W. A. Fuqua, they appeared and demurred thereto, and also filed a plea of nul tiel record; and the cause coming on to be tried, the Court overruled the demurrer, and decided the issue upon the plea against the defendants; and awarded execution against each of them for the sum of 250 dollars. From this judgment of the Court the defendants applied to this Court for a supersedeas, which was allowed.
    Bouldin and Stanard, for the appellants. 1st. The recognizance is void, because it bound the sureties for more than the statute authorized the justice to require. The statute, 1 Eev. Code, ch. 169, ? 2, p. 599, under which this recognizance was taken, provides that the accused shall give bail to appear and stand his trial. In this case he is, in addition to this, required to do and receive what shall then and there be enjoined by the Court, and not to depart thence without leave of the Court.
    *In Bias v. Floyd, 7 Heigh 640, and in Bartlett’s Case, 1 Heigh 586, it was held, that where the officer exceeds his authority in taking a recognizance it is void. The only question, then, is, whether the addition made to this recognizance is material : and on this question, the authorities leave no doubt. Hawkins, Book 1, ch. 15, $ 84; 1 Bac. Abr. Bail, letter T; 1 Chitt. Crim. Haw 105; -People v. Stager, 10 Wend. E. 431.
    2d. It does not appear from this record, that the justice had any authority to take the recognizance. This is a special authority given by the statute, and it must appear by the record that the case existed which authorized the exercise of it. Inhabitants of Chittinston v. Penhurst, 2 Salk. E. 475; S. C. 5 Mod. E. 321; Eex v. Inhabitants of Wootten, 5 Mod. E. 149; Wood v. Commonwealth, 4 Eand. 329.
    The Attorney General for the Commonwealth.
    1st. On the first question made by the counsel for the appellant, it does not seem that the- addition made to the recognizance is of any importance. The bail is the jailor of the prisoner. If they fulfil that office the recognizance is discharged. Petersdorf on Bail, 10 Haw Hib. 290; 1 Bac. Abr. Bail in criminal cases, letter H; People v. Stager, 10 Wend. E. 431. The distinction is between cases of felony, where when the party appears he goes into custody, .and misdemeanors, where he may appear and answer by attorney. In Virginia the moment a prisoner charged with felony is arraigned and pleads, he is then in the custody of the Court, and neither the jailor nor the bail can interfere with him. Being taken out of the custody of the bail, his liability as such must necessarily be at an end.
    The cases cited on the other side seem to be founded on The Queen v. Eidpath, 10 Mod. E. 152. This was a general recognizance to appear and answer generally; and in such case though the particular charge is given *up, yet upon the general undertaking he is bound to appear. But where the recognizance is to appear and answer to a specific charge, the additional words are to be construed as relating to that charge.
    2d. The acts of justices of the peace done in the country should not be construed strictly. It is sufficient if the recognizance states that the justice taking it is authorized to do so, and that it is taken in a particular case. When an ostensible case is made out on the face of the paper, any objection to the proceeding should be set up by the .defence.
    The. justice is not the custodiar of the records of the Court, and can only have access to them by the favour of the clerk, and he cannot, therefore, be required to insert a copy of the record in the recognizanee.
    By the common law the sheriff had a general power to bail in-criminal cases. Bac. Abr. Bail in criminal cases, letter A, p. 483. By several statutes this power was transferred to justices. Dickenson’s Justice 176. Such was the law of Virginia until the introduction of Criminal Courts. Then the statute referred to by the counsel on the other side, was enacted. This statute is a restraint upon a previous power ; and in this it is distinguished from the cases cited on the other side.
    The distinction by which the cases are to be reconciled, is, where the justice or the Court has no jurisdiction over the subject, in which case the act is void, and where having general jurisdiction, the justice exceeds his powers, when his act is only voidable. There the justice has the general jurisdiction to bail, and if he has exceeded his powers it is for the party complaining to shew it.
    The ground on which the act of a Court is held to be void is that the proceeding is coram non judice. 2 Stark. Evi. 801, note E; Perkin v. Proctor & Green, 2 Wils. R. 382; Marshalsea Case, 10 Coke 76 b, and 77 a and b. By the act 1 Rev. Code, ch. 169, § 2, p. 599, *the justice has a general power to bail in bailable cases. Under this power he has taken this recognizance; and therefore if he has not properly exercised his power, it is for the appellants to shew it.
    
      
      The principal case was cited and followed in Saunders v. Com., 3 Gratt. 214, 215. See generally, monographic note on “Justices of the Peace” appended to Wallace v. Com., 2 Va. Cas. 130.
    
   ABUEN, J.

The 2d section of the act 1 Rev. Code, p. 599, provides, that if a prisoner shall in the opinion of the Examining Court be bailable by law, the said Court may bind him and his bail by recognizance, to appear and stand his trial at the Superior Court of law; or they shall enter their opinion in the proceedings, and also the sums of money in which he and his bail ought to be bound; and the said prisoner shall thereafter be admitted to bail, by any justice of the county or corporation, or by any Judge of the General Court. The 3d section gives to any Judge of the General Court authority to admit to bail, notwithstanding the justices before whom the examination was, shall have been of a different opinion. The recognizance in this case was acknowledged before a justice of the peace of the county, and shews upon its face that the prisoner had been sent on to the Superior Court by the Examining Court, to be further prosecuted for the offences with which he stood charged. But it does not shew any entry of the opinion of the Court that the prisoner was bailable, or order fixing the sums in which he and his bail ought to be bound.

A justice of the peace has no general authority to admit to bail after an Examining Court has sent the prisoner to the Superior Court for trial. If the Examining Court refuses to bail, or is silent, the justice has no right to admit to bail; though any Judge of the General Court may. In taking a recognizance the justice can only rightfully act as the agent of the Examining Court, in execution of its judgment, and after it has judicially decided that the prisoner is bailable, and fixed the amount of bail. The validity of the recognizance depends on *the authority of the justice to take it. Where that authority is special, the authority must appear. The Commonwealth is seeking to have execution of the recognizance, and in the absence of any general power in the justice to take it, and where by law it could only be properly taken under the authority, and in execution of the order of the Examining Court, it ought to appear affirmatively that such order was made, and authority given. The case of Wood v. Commonwealth, .4 Rand. 329, was not as strong as this. There the recognizance omitted to state that it was taken in the county to which the justices belonged, while the scire facias, in reciting the recognizance, set fcjrth the county in which it was taken; but it was held that as the recognizance did not shew it was taken in the county to which the justices belonged, that fact was important, and not appearing of record, could not be averred. Though the case was decided on a variance between the recognizance and the scire facias, if the variance had not been material it would not have been deemed fatal. So far from presuming in favour of the act of the justices, the Court held the variance could not be cured by averment. But in this case to sustain the recognizance the Court must in the absence of any averment, presume that the authority to take it existed.

I think the recognizance was defective, and that the demurrer should have been sustained.

The other Judges concurred. Judgment of the Court below reversed.  