¶1It cannot be admitted. The officer s refusal is dehors the record, which merely shews that the Justice ordered Barnes into custody. Indeed this circumstance, if it existed, would have *379been very improperly attached to the record. When a magistrate of this State commands a proper officer to do a legal duty, his consent is to be presumed.
¶2The cause now went to the Jury, upon the specifications of the record.
¶3The Court, in their charge to the Jury, observed, that they had no doubt but that, upon the surrender of the principal-by bail on mesne process in a Justice’s Court, the Justice had power to order him for the time being into the custody of a proper officer.
¶4The statute provides, “ that where no proper officer shall attend any Justice’s Court, and it is necessary there should be some officer for the due exercise of his or their respective jurisdictions, such Justice or Justices shall have power to appoint some proper person to fill the place of such proper officer.”
¶5Here a proper officer, the defendant’s deputy, was present.
¶6But this power in the Justice to order into custody, and in the officer to hold his prisoner without written precept, can operate only while his Court is in session.
¶7This Court possess no such plenitude of power as to imprison a person beyond the limits of their session.
¶8In cases where the surety on mesne process surrenders his principal in a Justice’s Court/it is the duty of the Justice to order the person surrendered into the custody of a proper officer, if there be one present; if not, he is to appoint some suitable person to fill the place of such proper officer, and order him *380into his custody. If judgment final be rendered for the plaintiff, he should make out his writ of execupon before the rising of his Court, that the defendant may be charged with it. But in cases where the cause is continued to an adjourned, session of the Justice’s Court, or where an appeal is taken to the County Court, the Justice should, before he adjourns his Court, make out and deliver to a proper officer a mittimus in due form, stating therein the grounds of issuing it, and commanding, in and by the authority of the State, such officer to commit the prisoner to the common gaol of the County, and likewise commanding the keeper of the prison to receive and him safely keep within said prison, until he shall be liberated by due course of law ; and of these proceedings the Justice should make record.
¶9If this be omitted, the officer cannot one moment after the rising of the Justice’s Court be justified in holding his prisoner, and therefore cannot be chargeable with his escape.
¶10Verdict for the defendant, and his costs.