delivered the opinion of the court. Regarding the recognizance upon which the scire facias in this cause issued, as an ordinary recognizance to keep the peace and be of good behaviour, taken by a justice of the peace; and being of opinion, that a justice of the peace, in such a case, has no authority to bind the party to appear before a circuit court; a majority of this court is of opinion, and doth decide, that the condition of the recognizance, requiring the appearance of Bartlett before the circuit court, is void to all purposes; and the demurrer to the scire facias, should, therefore, be sustained, and judgment rendered for the defendant thereupon.
May, J.This is an ordinary recognizance to keep the peace, entered into according to law, and essentially in due form, except that the condition requires the defendant to appear at the circuit, instead of the county, court. In England, the statute directs that the justices shall return such recognizances to the next sessions; but we have no such statute here. Our circuit courts have jurisdiction to require surety of the peace: and, therefore, the magistrates may take recognizances in such cases, with condition for the appearance of the party bound, at either the county or the circuit court. Upon this ground, I am of opinion, that judgment should be rendered for the commonwealth on the demurrer to the scire facias.
In this opinion, judges Brockenbrough and Parker concurred.