Tried before tbe Hon. B. S. Bibb. The record in tbis case shows that, on tbe 6th June, '1864, Mary Sulhvan made affidavit, before a justice of tbe peace, tbat two bogs were stolen from her premises on tbe 11th March preceding, and tbat she bad cause to believe, and did believe, tbat Patrick Robinson “ did steal, take, and carry away said bogs, with intent to convert them to bis own usetbat tbe justice thereupon issued a search-warrant for tbe examination of tbe defendant’s…
Cited by 2 later decisions — most recently September 1922
¶1We do not think there is any error of parties in this case. When an order is made under section 3786 of the Code, for the delivery of property to the claimant ox-owner, such order loses the properties of a State prosecution, and becomes, as between them, a civil proceeding. Only Mary Sullivan, the complainant, and Patrick Robinson, are interested in the affirmance or reversal of this order. See Creighton v. Paine, 2 Ala. 158.
¶2[2.] The powers of a justice of the peace, which were invoked and exercised in the present case, are purely sta*616tutory, and. summary. In sucb cases, tbe record must positively affirm every thing which is necessary to uphold the jurisdiction, or justify the order made. The jurisdiction cannot rest on intendment.—See Connoly v. Ala. & Tenn. Rivers Railroad Company, 29 Ala. 373, and authorities cited; Logwood v. Bank of Huntsville, Minor, 23; Bates v. Planters & Merchants’ Bank, 8 Porter, 99; Lamar v. Commissioners’ Court, 21 Ala. 772; Commissioners’ Court v. Thompson, 15 Ala. 134; Commissioners’ Court v. Bowie, 34 Ala. 461; Code, section 3786. The power of -the magistrate, or justice of the peace, under section 8786 of the Code, to cause the property to be delivered to the owner, is limited to cases in which such property was “stolen or embezzled.” The ascertainment of the fact that-the property was “stolen or embezzled,” is the jurisdictional fact in the cause, which alone authorizes the justice to make the order. The present record does not affirm that fact to exist; and under the authorities cited supra, we are not at liberty to infer its existence from the brief statement, “judgment rendered in favor of plaintiff,” as found in this record.
¶3The city court rightly adjudged, that the proceedings had before the justice, so far as they award an order for the delivery of the hogs to the claimant, be set aside, annulled, and quashed. That portion of the order of the city court, which directs that the property sued for be returned to the defendant, was unauthorized, and is therefore- reversed.
