Page:Federal Reporter, 1st Series, Volume 10.djvu/817

 UNITED STATES V. HARDEN. 805 �There is no statute in this state which expressly eonfers upon a magistrate the power to take bail for appeai-ance before him at a future day, but from the regard which the law has for the liberty of the citizen, and the "reason of the thing," I believe he has such power. I am fully aware of the principle of law that the powers of courts of limited jurisdiction cannot be extended by implication, but when imperative duties are imposed and certain express powers are conferred upon such courts bylaw, theycan properly use the auxiliary means and methods neeessary to perform such duties and fully exer- cise such powers, if such means and methods are according to the course and practice of courts of common law in administering ordi- nary and substantial justice. This course is certainly allowable in courts whose powers and forms of procedure originated in the common law. Such powers have always been exercised by examiniug magis- trates in this state, and have never been denied by the supreme coiu-t. They were claimed and exercised by Chief Justice Marshall on the preliminary examination of Burr. �I am inclined to believe that when bail is taken in such cases by justices of the peace, it should be by bond in the nature of a recog- nizance, where the principal and sureties sign their names, as courts of justices of the peace are not courts of record, authorized to take acknowledgment of recognizances for future appearance before them. If a defendant should make default I have not formed a decided opin- ion as to the proper manner of enforcing the forfeiture, and I am not aware of any decision of the supreme court on the subject. Al- though courts of justices of the peace are not in matters of this kind strictly courts of record, judicial proceedings before them resemble records in the conclusiveness of their eiiects. but they do not conclu- sively prove themselves ; yet when proved they have the power and effect of judgments of courts of record. Reeves v. Davis, 80 N. C. 209. �Justices of the peace are required by law to keep dockets and enter a summary of their proceedings therein, andit seems to me that anj" judgment entered by them upon a bond which they had the power to take in the name of the state, after proceeding in couformity with the course and practice of courts of record in such matters, would be a valid judgment and could be enforced. �If an examination before a justice of the peace is continued to a future day, the officer having the defendant in custody has no power to commit him to prison without a mittimus from the justice, and tue officer cannot certainly be required to keep a prisoner for a long time in his own personal custody. ��� �