Sturges against Sherwood, 15 Conn. 149

Church, J. It is objected to the recognizance, that it is void, because the justice of the peace had no right to bind the accused over, to appear before the county court. The statute under which the justice acted, empowers a magistrate to require sureties of the peace ; and upon refusal, he is authorized to commit the accused to the common jail, there to remain until discharged by due course of law; or until the next session of the county court in said county; “ which court may make further order relating to the subject matter of said offence.” It should be recollected, that the proceedings authorized by this

section of the law, were intended to prevent the commission of a crime anticipated, rather than to punish a crime committed. And therefore, the legal proceedings commenced were intended to be continued to await the result of the conduct of the accused. And the county court were authorized to make further order in the matter, as it might to them seem proper, upon further enquiry; and either continue the restraint or the recognizance, so long as danger continued, or discharge the accused from both, when the danger should cease.

But it is very evident, that the county court can exercise no such discretionary power, unless the legal proceedings instituted before the justice have^ been transmitted to them, and the accused is before them to be heard.

It would defeat the purpose of the law, in this respect, if the justice had no other power than to commit the accused to prison until the next county court, upon his refusal to procure bonds for good behaviour ; for we do not very well see how that court could continue him there longer, without further enqui-ry, and without either process or person before them ; and if they could not, he is to be discharged, to put the life or limbs of the complainant again in jeopardy.

The authority of requiring sureties of the peace and good behaviour, was first conferred upon magistrates, in 1698, by a statute, in its terms much less explicit in regard to the power of binding over, than the present one ; and yet, we believe, this course has been pursued in cases like the present, from time immemorial and without objection. The defendant has relied upon the case of Darling v. Hubbell, 9 Conn. Rep. 350. to sustain him in his demurrer; but that case condemns him.

The statute upon which the proceedings there were attempted to be justified, gave no power to the county court, nor any other tribunal than the justice himself; and it prescribed the precise duty of the justice of the peace to be, — upon a refusal to procure the bond required, to commit the accused for thirty days.

And this court, in giving its opinion in that case, make the proper and clear distinction between that case and this, and say : “ By this statute, (that is, the one upon which the process there had been issued,) the justice may order the offender to find4surety, and upon non-compliance, may imprison him) for a term not exceeding thirty days. It does not (like the statute in this case,) authorize the magistrate to bind over until discharged in due course of law, or empower the county court to make further orders upon the subject.” 9 Conn. Rep. 354.

We advise the superior court that the scire-f acias is sufficient, and that the demurrer be overruled. In this opinion the other Judges concurred. Judgment for plaintiff.