Per Curiam,

The validity of the bond on which this suit was brought, is the only quesjion we are now to consider. There is no express statute authorizing the taking of such a security for such a purpose. Is it valid under the general law ?

Our statute declares in broad terms, “ that any instrument under seal, fully and freely executed and delivered, shall be deemed valid and binding according to the fair intent and meaning thereof, in all cases not otherwise declared by express statute, unless the execution or delivery of such instrument shall have been obtained by fraud, or for an unlawful purpose.” Laws of 1838-9, page 76. This is nearly, if not entirely coincident with the common law rule on the subject. At all events it must be the rule of decision in this case.

The due execution and delivery of the bond is not disputed. It ⅛ not alleged to have been obtained by fraud, nor is there any express statute rendering it invalid. Was it obtained for an unlawful purpose?

It was giveu to secure the appearance of McKnight before the justioe of the peace, at the time therein specified, permitting him in the mean while to go at large. Arrested for an assault with an intent to kill, he *446oblained a postponement of the case until the following day, in order to procure testimony, and was then released from custody upon executing the bond on which this suit was brought. This purpose can only be considered unlawful upon the ground that the prisoner should have been retained in custody, and not permitted in this manner to go at large. Was it unlawful for the justice to grant him this indulgence? I think not.

The statute makes provision for the arrest of a person accused—for his examination—for his being admitted to bail to appear at the next term of the District Court in bailable cases and for his commitment where bail is not allowed or cannot be procured. But it gives no directions as to tile manner in which his attendance shall be secured pending the examination. It seems to contemplate that the examination will be gone through with at once, and the prisoner committed, held to bail, or discharged immediately. Where, however, he is unprepared to undergo the examination on the day on which he is arrested, it is just and right that a reasonable time should be allowed him, Irr the mean time, how is lie to be disposed of? Circumstances may render him unprepared (or the investigation of his case for several days. Must the officer stand a sentinel over him all the time ? There would not only be great trouble but great insecurity against escape in that method. Shall such escape be provided against by incarceration? This would seem unjust and oppressive, and contrary to the spirit of our law, where no offence has been proved and where the offence charged is bailable by a justice of the peace.

Besides, the statute does not authorize in express terms a resort to either of these modes of securing the person of the accused in such a case, and if when held ir. durance in either of these methods, he should sue out a writ of habeas corpus, could it not be urged that his forcible detention was illegal, with quite as much propriety as the unlawfulnesa of the bond is now insisted on ? It seems to me that the justice in the present case pursued the course dictated by humanity and justice, and. that at least it is not opposed to the principles of law.

In the case cited from 4th Blackford, a bond was given by a justice of the peace to the Governor for the benefit of any person aggrieved, conditioned for the faithful performance of duty, was held invalid because it was not authorized by law. I have some doubts whether such is a sound rule of the common law, see 7 Mass. Rep. 99, and the other cases cited by defendants in error. At all events it is not the rule laid down, *447by our statute, which in a case like the present'renders the silence of the law as evidence of the validity of the bond.

Judgment affirmed.