¶1It is conceded that it was competent for *426the Court, in its discretion, to continue this cause at the instance of the State, upon the statement made by the Solicitor ; and that whether the discretion was wisely exercised or not, the decision upon the continuance could not be revised. The only question presented, is, whether the facts disclosed in the record entitle the petitioner to be discharged on bail; and the solution of this question depends upon the construction of the fortieth section of the eighth chapter of the “ Penal Code.” [Clay’s Dig. 444.] This section declares that “ No person charged with the commission of an offence capitally punished, shall be admitted to bail as a matter of right, when he is not tried at the first term of the Court, at which h'e was properly triable, if the failure to try his case proceeded from the non-attendance of the State’s witnesses, where an affidavit is made satisfactorily accounting for their absence,” &c.
¶2This provision very strongly implies that one charged with an offence of the grade to which it refers, shall be discharged on bail, if not tried at the first term when he is triable, in consequence of the non-attendance of the State’s witnesses ; unless their absence is accounted for by affidavit; and when considered in reference to the pre-existing enactments of 1807 and 1827, this implication is as conclusive as a positive declaration. These latter enactments made it imperative upon the Court to discharge the prisoner on bail, upon the last day of the term, where the affidavit was not made. [Ex parte Simonton, 9 Porter’s Reports, 390.]
¶3The act in question was intended, and did very essentially modify the two preceding statutes, not only in the particular in which we have noticed them, but also in other respects, While the acts of 1807 and 1827 entitled the prisoner to bail, on the last day of the Court, where he was not tried at the first term, in all cases, .unless the continuance was the consequence of the absence of the witnesses for the prosecution, the modification merely declares that he shall not be admitted to bail, as a matter of right, on account of the absence of witnesses, where the affidavit is made. But no time is prescribed within which the affidavit is to be made, and there is nothing in the language employed, indicating that it may not be made after the adjournment of the Court, and we cannot doubt but such a statement may be verified any time before the prisoner is actually discharged on bail.
¶4*427We are by no means certain that it can be intended from the transcript before us, that the affidavit was not made upon the application for the prisoner’s discharge; but it is needless to consider this question, as it is perfectly clear that the order of reference by the Circuit Judge does not authorize this Court to revise his judgment as on appeal. The statute, which gives us jurisdiction of questions referred as novel and difficult, does not confer the. power to adjudicate points thus referred, until the cause is disposed of in the primary Court. But in virtue of the constitutional provision which gives us « a general superintendence and control of inferior jurisdictions,” it is competent for this Court, upon the refusal of a Judge of the Circuit Court or Chancellor, sitting in term time or vacation, to award a writ of habeas corpus, and hear and decide upon the application for the prisoner’s release, or adopt such course of proceeding as would make its control complete. We might, upon the showing made, if we judged it a proper case, direct the petitioner to be brought here, but this would afford him no legal'advantage which he cannot otherwise obtain; as the provision of the « Penal Code’’ would make it our duty to receive the affidavit (should one be tendered) and remand the prisoner. If a habeas corpxis were issued returnable to this Court, it would occasion an unnecessary accumulation of costs, and increase the facility of escape. We therefore think it best to deny the writ; and that the prisoner may not be prejudiced, would again remark, that it is competent for the Judge of the Circuit Court, of Chancellor, notwithstanding the decision at the Circuit, to issue a habeas corpus to bring before him the body of the prisoner, and if the affidavit contemplated, is not made, to admit him to bail. Upon an application, duly made, to either of the judicial officers we have named, they .will award the writ, and dispose of the prisoner as we have indicated, would be proper.