
    THE STATE vs. B. M. EDNEY.
    A Judge, being porsessed of jurisdiction bvef the person of a prisoner, by .»Dy proceeding before him,,may adjudge that he be allowed tail, aad make an order that his recognizance be taken by a Justice or Justices of the Peace, named by him, in a sum fixed J>y him ; and a recognizance taken according to tl\p order, is valid.
    An instrument of writing, executed with intention to comply with such an order, in form, a bon'd, signed and sealed by the prisoner and his surety, on.the prisoner's being let oist of-prison,, and received by the Justices named, by them returned to the proper Court, and by its order filed as a record, is a recognizance.
    
    Taking a recognizance consists xucrely in making and attesting a memorandum of the acknowledgement of*a debt due to the State, and of the,condition on which it is to fed defeated.
    Presenting a petition to a Judge for a writ of habeas corpus gives him jurisdiction of the subject, and the parties may waive all errors Snd dispense with all forms, in the proceedings on it.
    Where a petition for a habeas corpus was presented to a Judge in order that the petitioner might be admitted to bail, and the Judge gave no formal judgment, but informally expressed his opinion in writing on the ■ petition that the prisoner was entitled to bail, and signed his name officially to a «heat of paper that a writ might issue if the parties desired it; and, by the consent of the Solicitor for the State, suggested that bail might bo taken without any further proceedings on the petition, and fixed the amount in which bail should be taken, and named the Justices of the Peace to take it, and the prisoner was afterwards discharged from prison, on his entering into a recognizance together with the defendant as his surety, in the sum fixed by the Judge, before the Justices named by him, and the prisoner and defendant subscribed their names and affixed their seals to the recognizance, this is plenary proof of a waiver of ail errors in the proceedings.
    It seems that the defendant would’be estopped by the recital that, “ upog, application to the Judge, he had ordered that the prisoners be allowed hail in the sum of $2,000 each, and bad authorized the two Jnstjjes to • take the recognizance.”
    The cases of the State ts. IJfil, 3 Ired., 398, and Iredell vs. Barbee, 9 Ired. 260, cited. * ’
    
    This uva» a scire facias to show cause why an execution-should not issue on a forfeited recognizance, and was tried before Rea.de, J., at the Superior Court of Buncombe county^ Term 1864, on the plea of nid tiel-remrd.
    
    The State gare in evidence a record of the Superior Court of Law of Buncombe county, setting forth that at Spring Term of that Court, £<B. J. Smith and ,W. W. McDowell, Justices of the Peace of said county, brought into Court paper writings of the tenor following, to wit: (Here was inserted the petition of J. A. Shock and five others, addressed to the Hon. William M. Shipp, one&c-., praying for a writ of habeas corpus, in order that they might be bailed.) The record then ■ proceeded, “ Upon the facts stated in this petition, I‘think the parties entitled to bail. Therefore, b.y the suggestion of the .Solicitor, without the formality of a writ, and to save trouble and expense, I suggest that they be admitted to bail in the sum of two thousand dollars each, and that B. J. Smith and W. W. McDowell take bond for iheir appearance at the first Superior Court to be held after this time. If the suggestion is not adopted, the writ must -issue above' my name which- is signed near the bottom of this sheet.
    February.5th, 1864. ‘ W. M SHIPP.
    W/ M. SHIPP, J. S. C. L. E.
    
      Know all men by these presents, that we, J. A. Shock,. Carol Walton, James T. Holbert, Daniel Mayberry, G. W. Walker and B. M. Edney, are held and firmly bound to the State of North Carolina in the sum of two thousand dollars, for the faithful payment whereof we hereby bind ourselveá, our heirs, executors and administrators.
    The condition of the above obligation is such : Whereas,' the. above inunden, J. A. Shock, Carol Walton, James T; Holbert, Daniel Mayberry ant G. W. Walker, hare been regularly committed to the common jail in and for the county of Bun'combo in said State, charged with the crimes of larceny, robbery and'burglary ; and, whereas, on application to the lion. W. M. Shipp, one of the Judges of the Superior Courts of Law and Equity in and for said State, he has ordered that said last named parties be allowed bail in the sum of two thousand dollars eaeh, the bond tó be received by B. J. Smith and W. W. McDowell/Justices of the Peace: now if the said J. A. Shock, Corol Walton, James T. Holbert, Daniel May-berry and G. W. Walker, and each of them, shall well and truly make their and his personal appearance before the Judge of the Superior Court of Law, to he held in and for the county of Buncombe' aforesaid, on the 6th Monday after the 4th Monday in April, A. D., 1864, and if-they and each of them shall well and truly make their and his personal appearance before the Judge of any Court of Oyer aud Terminer that 'may bo ordered to try criminal cases in aud for the county of Buncombe aforesaid, at any time before the. said Superior Court, and not depart the Court aforesaid until lawfully discharged, then the above obligation to be void. Otherwise to remain in, full force and effect; and it' is expressly understood that the above bond is for the several appearance of the last named parties ; and that the forfeiture is to be the forfeiture of the said sum of two thousand dollars for the default of each and every one of said last named parties.
    'Test:
    P. 0. WALTON, [seal.]
    JAMES T. HOLBERT, < [seal.] ,his
    DANIEL M MAYBERRY, [seal.] mark
    •J. A. SHOOK, • . [seal.]
    O. W. WALKER, [seal.]
    B. M. EDNEY,. [seal.]
    Approved:
    W. M. McDowell, J. P.
    Approved:
    B. J. Smith. J. P.
    And the said papers and recognizance were ordered by the Court to be entered;of record and were, duly entered accordingly, and at the same term of the Court the following proceedings were had, to-wit:
    THE STATE 1 vs. > JAS. A. SHOOK. )
    
    The said defendant is called on his recognizance and failed to answer and appear. Let scire facias issue according to law. Judgment ni. si. against defendant and his surety B. M. Edney, for the. sum of two thousand dollars.
    
      The Oburt adjudged that there was no such record as is supposed by the scire facias.
    
    The State appealed.
    Attorney General for the State.
    
      W. TLB alley for defendant.
   PjBAñSON, C. J.

In support of the plea u nul tiel record the defendant takes three grounds.' This Court is of opinion that neither is tenable. 1. The Judge had no power to authorize a Justice of the Peace to take the recog-nizanee." .

When a Judge, in a proceeding initiated before him, adjudicates that-the party is entitled- to be discharged on giving bail, and fixes the amount, it has long been the practice in this State, if the party be not prepared with sureties, for the Judge t§ authorize one or more Justices of the Peace, named by him, to take the recognizance ; anil recognizances so taken have - heretofore, as far back as the memory of the members of this Court extend#, always been deemed valid. This practice has prevailed so long, and is so obviously for the ease of the citizen, that we would not he justified in now putting a stop to it,uinless satisfied that it is in violation of some important principles of law. It is true, a judicial function cannot he delegated : but after the Judge has decided that the party is entitled to he discharged on giving hail, and has fixed the amount, all of the questions presented by the proceedings, are- disposed of, and nothing remains to he done but to carry the adjudication into execution ; and there is no reason why the Judge may not authorize a Justice of the Peace to do it; for 'all he has to . do is to pass on the sufficiency of the surety, and to attest the fact that the recognizance-is entered into.. The former involvss no question of law, but it is a matter of fact, which may be ascertained by one man, who is authorized to administer an oath*as srell as another, and,although in strictness it may be .deemed an act of a judicial nature, it affords rather a technical, than a' substantial objection to the practice. The latter is a mere ministerial act, which requires no exercise of judgment, either in respect to a matter of laiv, or of feet; and is done by hearing the recognizance, and mating- and- attesting a “minute” or memorandum, by which a formal recognizance may be'af-terwards drawn up, for instance: <e A B recognized in $1800 to appear at “ C D recognized as surety in .a like sum.” In State vs. Hill, 3 Ire., 398, Judge Ruffin sanctions the practice, and intimates an .opinion that it may he .supported on the ground that a Justice of the Peace has power, virf-ule officii, to take recognizances; and the effect‘of the order of thc'JuSgfe is simply to enable the Justice to obtain control -of the body, which he could not otherwise do, having no power to issue a writ of habeas corpus. So, the authority conferred by the Judge, is not a delegation ©f a judicial function,'but the substitution of one judicial officer in place of another, in respect to a minor part of the proceeding, the main questions' having been disposed of.

2. “ The ^ Judge made no adjudication allowing the prisoner to give hail,'and no order authorizing the Justice of the Peace to take the recognizance.”

It is true, an adjudication that the prisoner is entitled to be discharged on giving bail, is not formally set out, and there is no formal order authorizing the justices to take tfhe recognizance.. But these things are done in substance, and all errors are waived by consent. The facts ar6 — tbe petitien is filed, and tbe Judge deeides that tbe writ .should issue ; and for this purpose signs his name officially, and directs the formal words to be inserted,‘and the writ to issue, if necessary ; bnt-for the sake of saving' expense and trouble,’’ with the consent of the Solicitor for the State, he expresses Ms opinion, that on the facts stated, the petitioners are entitled to be discharged oa giving bail for. their appearance^ fixes the amount at $2000 for ea»h. and suggests that the recognizance be taken by two Justices of the Pease, whom ho names, without the formality of a writ. This- suggestion is accepted and acted on. The Justices named treat the matter as if the Judge.had allowed the prisoners to giv^bail, and authorized them .to take it. This is done, with the consent of the Solicitor, and of the prisoner, and of the defendant, who was offered ag surety, and they admit under their hands and seals, that, “ upon application to the Judge, he had ordered that tha prisoners be alloioed bail in the 'sum of $2,000 each, and had authorized the two Justices to take the recognizance,” which is done, and the prisoners thereupon discharged. .

There is force in the suggestion that on the authority of Iredell vs. Barbee, 9 Ired., 250, and United States vs. — 2 Breckenborough, 115, these admissions made-in a solemn manner, and acted on tor the-benefit of the prisoners, amount to an estoppel, and conclude the parties from gainsaying the matters admitted. Ijtowever this may be, it is'clcar that if the admissions uo. not'operate by way of estoppel they constitute plenary evidence of consent to waive all errors,” and dispense with all parts of tbe proceeding preliminary to taking the recognizance, which it was fin the power of the parties to dispense with.

It is true, ‘'‘'consent cannot confer jurisdiction;” but we are of opinion that the jurisdiction of the Judge attached, and the proceeding was regularly constituted before him, by filing the petition ; and all errors of form could be waived, and all- formal parts of the proceeding be dispensed with, by consent. 'For instance, if the parties consent that the body need not be produced, and, on tbe return, setting out “the cause of detention,” the Judg'e disposes of the question, his ruling-is binding. This shows that, after the proceeding, is regularly constituted, the parties may, by consent, treat.tbe production of tbe body as a matter of form, and dispense with it, although it is usually the most important part of the proceeding ; and the Judge cannot dispose of the.matter, unless the body is produced, or considered as present., by consent, and error- waived.

So, after the petition, is filed, if the parties submit the questions on a “ case agreed,” waiving, by consent, the necessity for issuing a writ, 1 apprehend the ruling would he binding; for the purpose of she writ is, simply, to compel the production of the body, together with the cause of detention ; and if that purpose l>« answered, the writ may be treated as matter of form, ami waiyed by consent. Our case is stronger — for the Judge signed Iris name officially, with directions, to insert the formal words ; and the writ, so far as his action was concerned/ had issued, and further proceedings on it were dispensed with by consent.

It is also*fcrue that it was irregular for-the -1 udge to. give.his opinion that, on the facts stated, the prisoners were entitled to be discharged on giving bail, and to fix the amount and name the Justices of the Peace, before and in anticipation of the consent of the prisoners to waive errors and dispense with formal proceedings; but, as this coifsent was afterwards, while the proceeding was pending, given in the fullest manner, the irregularity wa» cured ; and it would have been an idle form for the Judge to repeat his opinion, and to state the amount of the bail, and-name the Justices of the Peaco a second time.-

3. “The recognizance is not in due form, and was not-taken as authorised bjj the Judge.”

. We stated, under the first head, what is necessary in order to take a recognizance..

Those requisites are complied w-ith. The signing and sealing, by the prisoners and the defendant, were not necessary to give validity to the recognizance ; but, in respect to that, it does no harm; and in respect,to the consent to waire errors, &c., we have seen, under the second head, that it had a very important bearing.

Whether the defendant can be made to pay more than one sum of $2,000, by a proper construction of the instrument, is a question not presented in this case.

There is error. Judgment reversed and judgment for the State according to wire facias.  