
    James Harrison and William Rosser, ads The State.
    The Recorder of the town of Camden is a magistrate ex officio, and invested with all the powers of magistrates, except for the trial of small and mean causes-Vide A. A., 1830, 6 Stat., 413.
    Tried before Mr. Justice Frost, at Kershaw, Fail Term, 1846.
    The defendants were the sureties of one Lee, in a recognizance (dated 27th Dec. 1844,) to appear and answer to a charge of gaming. The principal was convicted, and never appeared to receive sentence, but escaped to Georgia. A sci.fa. having been duly served on the defendants, they shewed for cause against the estreat of the recognizance, that the same was irregularly taken and void. It had been acknowledged before R. L. Wilson, an acting magistrate, and certified by him pursuant to the Act of 1787, 2 Brev. Dig., 180. It was objected to the official authority of Wilson, that he had not qualified as a magistrate, pursuant to the Act of 1839.
    It appeared that Wilson, having been appointed a magistrate by the legislature in 1843, qualified, pursuant to the Act of 1839, the 3d January, 1844. tie was elected Ordinary in the same year, and entered on the duties of that office in September. Wilson was examined as a witness, and stated that when he was appointed Ordinary, he thought he was not qualified, and therefore ceased to act as a magistrate under the Legislative appointment, and signed a recommendation for another to the Governor, to fill the vacancy; but he continued to act as magistrate, ex officio, under the act of 1839, which provides that the Ordinaries, on taking the oath required of magistrates, shall exercise the powers conferred on them, except for the trial of small and mean causes. He said he believed’he had taken the oath prescribed for magistrates, when he qualified as Ordinary. By the A. A. 1830, 6 Stat. 413, the Town Council of Camden is impowered to appoint a Recorder and Marshal, who shall be justices of the peace, ex officio, except for the ti'ial of causes. Under this Act, Wilson had been appointed Recorder of Camden, in 1844; and it was proved by himself and Mr. Levy, the Intendant, that he had acted in that office, and had administered oaths and presided at negro trials, and exercised all the functions of a magistrate, except the trial of causes.
    It was held that Wilson having qualified under the Legislative appointment, that would serve for the official exercise of the powers of a magistrate, as Ordinary, and an order was entered to estreat the recognizance of the defendants.
    The defendants appealed and moved to set aside the recognizances, and reverse the order of his Honor, on the grounds:
    1. That R. L. Wilson, by whom they were taken, had no authority to take them.
    2. Because, since the said order was made, the said Lee has been arrested by the Sheriff of Kershaw District, and is now confined in the jail of said district, by virtue of a bench warrant, ordered in the said cases at the last spring term of the Court.
    Smart, for the motion.
   Withers J.

delivered the opinion of the Court.

This Court see no reason which would warrant them in reversing the decision on the circuit. Besides the ground particularly relied upon by the Judge below, it appears that R. L. Wilson, who certified the recognizances, was a magistrate ex officio, in his capacity of Recorder and Marshal of the town of Camden by the terms of the Act of Assembly of Dec. 1830 and thereby invested with all the powers of a magistrate, except for the trial of small and mean causes. In addition to this, it was abundantly proved, that he had often exercised the office of magistrate in negro trials and otherwise, and believed he had taken the oath of a magistrate, after his election as Ordinary. When to this we add that it was by no means certain that he was functus officio as a magistrate proper, we conclude that he was sufficiently authorized to take and certify the recognizances of defendants: or at least the onus probandi was thrown upon the appellants.

The motion is dismissed.  