delivered the opinion of the Court:
It appears that George W. Green was arrested under a warrant, on a charge of bastardy, issued by a justice of the peace, on the complaint of Elizabeth Bales. He was taken- before the justice, when he applied for and obtained a continuance, and being required by the justice to enter into a recognizance for his appearance at the time set for trial, defendants in error executed the bail bond upon which this suit is brought. The declaration avers that the principal in the bond failed to appear at the time and place named in the bond, and being called came not, but failed to answer the complaint. A general demurrer was filed to the declaration, which was sustained by the court, and plaintiff abiding by his declaration, a judgment was rendered in bar of the action, and the record is brought to this court and errors assigned.
It is first urged, that this recognizance is void, upon the ground that there is no power to require or take a recognizance before a justice of the peace, in a prosecution for bastardy. The act of the 3d of March, 1845, R. S. 518, declares that “ Any justice of the peace, before whom any person is brought on a complaint for any crime, misdemeanor, or other offense bailable by the laws of this State, may take the recognizance of such persons, with surety or sureties, in a reasonable sum, for his appearance before said justice for further examination at a future time,” etc.
It is contended that this proceeding is not within the provisions of this law. Is it, then, a “ crime, misdemeanor, or other offense, bailable by the laws of this State?” If it is either, then it is within this provision, and a recognizance maybe taken. It is an offense against the law, and the first section of the bastardy act has expressly made it bailable. The first section of that act requires the justice of the peace, before whom the charge is preferred, after hearing the evidence, if the case require it, to commit the accused, unless he shall enter into a recognizance to be approved by the justice. It, then, being an offense, and being bailable by the statute regulating-proceedings therein, the justice of the peace had the power to take the recognizance. The statute is broad enough to, and does embrace this class of cases. The recognizance was well taken.
But the second section of the act has prescribed the duty of the justice of the peace, when such a recognizance has been entered into before him. It provides, that if the accused shall fail to appear at the time appointed for the hearing, and named in the recognizance, the justice shall note the default upon the record, and certify the same recognizance, with the record of the default, to the circuit court of the county, that a scire facias may issue thereon, or an action of debt may be brought for the recovery of the penalty. This is the clear and unmistakable duty of the justice, and it impliedly prohibits a scire facias or an action of debt, from being brought, until it shall be certified as required, to the circuit court. The purpose of having it thus certified, is declared to be, that scire facias or debt may be brought for a recovery of the penalty. The implication from this language is, that such proceedings can not be had until it is thus certified; that the return, by the justice, of the recognizance to the circuit court is a condition precedent to maintaining the action.
There is no averment,in the declaration in this case, that the justice of the peace had certified the recognizance and default, with his record, to the circuit court, and in this the declaration was bad in substance, and the demurrer was properly sustained. Being a statutory bond, the requirements of the statute must be observed, to give a right of action. Hot only so, but it must appear,from the declaration, that the statute has been observed. The judgment of the court below must be affirmed.
Judgment affirmed.