State v. Red, 24 N.C. 265, 2 Ired. 265 (1842)

June 1842 · Supreme Court of North Carolina

24 N.C. 265, 2 Ired. 265

STATE vs. JOSEPH RED.

The Solicitor for the State is not entitled to a fee on a recognizance to keep the peace.

"When such a recognizance is taken and not returned to the term of tha court to which it is returnable, and the recognizance is not broken before the return term, no costs can, at a subsequent term, be awarded against the defendant.

If a magistrate fails to return, at the proper term, a recognizance to keep the peace, and the recognizance is broken, the solicitor for the State may, at a subsequent term, cause the recognizance to be returned, suggest a breach, enter a judgment nisi, and issue a scire facias.

An appeal from the Superior Court of Law of Henderson county, at Spring Term, 1842, his Honor Judge Bailey-presiding. The defendant, on the 4th day of June, 1841, had entered into a recognizance before a justice of the peace to keep the peace, and to make his appearance at the next Term of Henderson County Court, which was to be held on the 19th‘day of July thereafter. The recognizance was not returned to the County Court until February Term, 1842, when the court ordered that the defendant be discharged upon the payment of costs, including a fee for the Solicitor for the State. From this order the defendant appealed to the Superior Court. In this court it further appeared, that the person, who had taken out the peace warrant, did not desire that the defendant should be held longer under recognizance. His Honor was of opinion that the Solicitor for the State was not entitled to a tax-fee in proceedings on a peace warrant, and that, as the recognizance did not appear of record at the July Term, when it was returnable, the defendant was not liable to pay any costs on the proceedings, and gave judgment accordingly. From this judgment the Solicitor for the State appealed to the Supreme Court.

Badger (by appointment of the court) appeared for the State and submitted the case.

No counsel for the defendant.

Daniel, J.

The State’s Attorney has no tee, in a case like this, at the common law; the Legislature has not given him a fee; and the judge, therefore, was right in saying that he was not entitled to one. The recognizance was returnable to July Sessions, 1841, of Henderson County Court. The defendant and his baiL were by it bouud to keep the peace only up to that time. There is no entry, or continuance on the record, of the proceedings from July Sessions, 1841, to February Sessions, 1842. The recognizance, not having been broken, was at an end by its very terms at July Term, 1841. No costs had then accrued except the constable’s fee; for which the court could not give judgment against the defendant at February Sessions, as the proceedings were then not legally before them, or, rather, the party was not then legally in court. If the recognizance had been broken before July Sessions,, it then might have been carried in at that term or at a subsequent term, a suggestion of the breach, entered of record, and a judgment nisi rendered, so as to lay a foundation for a scire facias. The debt due to the State, on a breach of such a recognizance before the term at which it is returnable into court, cannot be defeated by the magis-irate’s omitting to return it, as he ought to have done. The judgment must be affirmed.

Per CuRiam, Judgment affirmed.