State v. Wilson, 46 N.C. 550, 1 Jones 550 (1854)

Aug. 1854 · Supreme Court of North Carolina

46 N.C. 550, 1 Jones 550

STATE v. JOHN WILSON ET. AL.

Where a parly is taken on a peace warrant and bound to appear at Court, such Court cannot review the judgment of the magistrate below allowing costs.

MotiON to retax the bill of costs, heard at Spring Term, 1854, of Macon Superior Court.

The- defendants were arrested on a peace warrant, at the instance of one William Tatbam, and upon tbe hearing of the complaint before a Justice of the Peace, the defendants were ordered to be bound to the peace, and to be bound to the next term of Macon Superior Court, and they gave bonds accordingly. In the proceeding below, the constable who made the arrest had summoned a guard to assist him in making the arrest, and also in detaining the defendants in custody after being brought before the magistrate who tried the matter. The judgment of the Justice of the Peace was, that the defendants should pay the constable’s charge for mileage, and for the services of the guard, as part of the costs, amounting to thirty dollars: also, that they should be bound to the Superior Court. On their appearance, it was ordered, that they should be discharged on their paying costs, to be taxed by the clerk. All the Court costs were taxed, which were paid by the defendants; but the costs for which the Justice of the Peace had given judgment were not included in the bill taxed by the clerk.

This was a motion to have the costs retaxed, with instructions to include those given below by the magistrate, to the constable and his guard.

Upon consideration of this motion, his Honor gave judgment for the costs, as asked for in the plaintiif’s motion, and ordered an execution to issue therefor; from which judgment defendants appealed to this Court.

Attorney Q-eneral, for the State.

Cfaither and J. W. Woodfin, for the defendants.

PEARSON, J.

We have no statute in reference to “peace warrants,” and the proceedings under them depend upon the common law. Whether, in rendering his judgment, the Justice of the Peace was right in including, as a part of the cost against the defendant, the officer’s charge for mileage, and for the guard, we do not decide; but we are clearly of opinion that it was error in the Court below to include these items in its judgment.

The practice is, that any single Justice of the Peace, or a Judge may, upon probable cause, require a party to give security that he will keep the peace, and be of good behavior. This is done to prevent a breach of the peace, or the commission of an offence against the public, and also for the protection of the individual immediately concerned. To make it effectual, it must be done at once ; consequently, there is no appeal from the action of the justice or judge; for that, by vacating the judgment, would defeat the object in view.

To guard against oppression, the obligation entered into to keep the peace, and to be of good behavior, is only till the next term of the Court, to be held for the county where the matter takes place, and the party is also required to enter into recognizance for his appearance at Court. Upon his appearance, the Court may discharge him, or may require him to give new security to keep the peace and be of good behavior, according to the facts as they appear upon investigation before it. But the Court does not review the judgment of the justice or judge, and consider whether it was founded upon sufficient ground or not, for it has answered its purpose, and is past. The proceeding of the Court is independent and unconnected with it, except so far as it constitutes the process by which the party has been brought in, and the judgment is necessarily confined to the Court costs; because the Court cannot give judgment and award costs for or against the party, in regard to the proceeding, before the justice or judge, without looking into and reviewing the proceeding before that tribunal; which, as we have seen, it has no authority to do, and, of course, it can give no judgment in reference to it.

Per Curiam. Judgment reversed; scire facias dismissed.