¶1The opinion of the court was delivered by
¶2.Defendant Miller was convicted of a crime before a justice and appealed, and in default of security for his appeal was committed to jail, and bailed by a judge of the County Court. The recognizance was conditioned for his personal appearance before said court to answer the charge, but was not conditioned that he would there prosecute his appeal to effect. Neither the prosecuting officer nor *23the respondent entered the case in the County Court, and the justice never issued his warrant to carry his judgment into effect.
¶3It is claimed that the judge had no authority to take the recognizance, as the respondent was not “committed to jail for trial before the County Court ” within the meaning of sec. 1753, R. L. But we do not decide that question. The recognizance did not bind the respondent to prosecute his appeal to effect, and so he was under no obligation to enter it. It' only bound him to appear and answer the charge; and if the prosecuting officer desired to fix a liability on the recognizance for non-appearance, he should himself have seen to it that the case was entered, that there might be a charge for the respondent to answer to; for without this there could be no breach, as none can be predicated upon non-appearance to answer to a charge that was never made.
¶4Judgment reversed, and judgment for the defendants.