Henry Dodge, one of these defendants, had been duly arrested upon a complaint made against him for theft. The complaint alleged the stealing of various articles of personal property to a value and amount exceeding fifteen dollars.
Dodge was brought before a justice of the peace for the county of Hartford for examination or trial, on the 31st day of May, 1839 ; and upon his motion, the examination was adjourned until the 11th day of June, and the justice took the recognizance of the defendants, upon which this action was brought,to the treasurer of the county of Hartford, conditioned *209for the appearance of Dodge, at the time and place of adjournment, to answer the charge in the complaint. Dodge-neglected to appear. The next court having cognizance of the offence charged, was the county court;
This recognizance and its conditions are declared upon as the sole ground of action ; and the declaration is demurred to, on the ground that the recognizance is void; And whether it be so, is the question reserved.
This case does not fall within the language of any statute provision on this subject.; and the question submitted can only be determined, by its analogies to others for which provision is made. No statute authorizes a justice of the peace to také a recognizance of a prisoner upon an adjournment; but this court decided, in the case of Potter v. Kingsbury, 4 Day 98. that a justice of the peace holding a court of enquiry might adjourn, and take a valid recognizance for the future appearance of the accused ; that the power to do this was necessarily incidental to such a'tribunal, by the common law. That was a prosecution for forgery, cognizable, as the law then was, by the superior court only. That decision cannot be sustained, if the present claim of the-defendants can be-.
A distinction is urged between the case on trial and thé case cited, in this, that in the present case the justice might have had final jurisdiction, and would have had, if, upon the enquiry, he had found the value of the property stolen not to exceed fifteen dollars ; and therefore, his court was not necessarily a court of enquiry, but a court for trial and punishment, which would bring this case within the provisions of the 126th section of the statute concerning crimes and punishments, requiring the recognizance to be taken to the treasury of the town. We are of a different opinion. The jurisdiction of the court, at the time of the adjournment, could only be known by the record, the averments in the complaint; and we now can determine it only by the record, which alleges the value of the property stolen to exceed fifteen dollars, and shews jurisdiction in the next county court. We cannot act, nor could the justice, upon the possibility that farther proceedings might have shown, that cognizance of the offence belonged to him. The record, as it then was and now is, was returnable to the county court; and therefore, within the fair meaning of the 123rd section of the aforesaid *210sta*ute’ ^ie recognizance was properly taken to the treasurer' the county of Hartford. As the law authorizes a recognizance upon an adjournment, it is but reasonable to say, that it should be taken to the same person, to whom it must have been taken, if given for the appearance of the prisoner, before the court for final trial, as was properly done in the case of Potter v. Kingsbury.
We shall advise the superior court that the declaration is sufficient.
In this opinion the other Judges concurred, except Williams;, Ch. J., who gave no opinion, being an inhabitant of the county of Hartford.Declaration sufficient.