delivered the opinion of the Court:
This was a sci. fa. upon a recognizance taken before two justices of the peace. The prisoner was in jail at the time of his indictment. The bail was fixed by the court, and the prisoner, not being, we presume, then able to give it, remained in jail. He was not arrested by the sheriff upon a writ issued by the court, and of course that officer had no power to take bail. He was afterward admitted to bail by two justices,, and it is now contended they had no such power. The 206th section of the Criminal Code, page 414 of Scates’ Statutes, is-as follows:
“ Where any person shall be committed to jail on a criminals charge, for want of good and sufficient bail, except for treason,, murder, or other offense punishable with death, or for not entering into a recognizance to appear and testify, any judge, or any two justices of the peace, may take such bail or recognizance-in vacation, and may discharge such prisoner from his or her imprisonment. It shall be the duty of the judge or justice committing such person to jail to indorse on the warrant of commitment, in bailable cases, in what sum bail ought to betaken.”
We are of opinion that this section was designed to ápply to cases of this character, and thus save the trouble- and expense; of a habeas corpus. Ho reason drawn from public-policy can-be given why this section should not receive such a construction. After the amount of bail has been fixed by the court, two-magistrates can certainly be intrusted with determining the solvency of securities. Before indictment they perform all these functions, and after indictment we see no reason whatever why they should not receive the bail, at least in a case like the present, where the prisoner was not arrested by the sheriff upon a copias issued on the indictment.
Reversed and remcmded.