delivered the opinion of the Court:

This was a proceeding by scire facias, in the circuit court of Stephenson county, on a forfeited recognizance entered into by Urban D. Meacham, as surety, for the appearance of Thomas H. Needham, to answer a charge of an assault with intent to commit a bodily injury.

Meacham was duly served, and appeared and pleaded several pleas, on which issues were made up and tried by the court, by consent, without a jury. The court found the issues for the defendant and rendered judgment that the defendant be discharged from his recognizance herein.

Proper exceptions were taken on behalf of the people, and the record brought here by writ of error.

The first point made is on the plea of nul tiel record. We are satisfied this plea was not sustained by the evidence. The recognizance, with the certificate of the magistrate attached, and the indorsements upon it, together with the finding of the indictment, and of its return into court, and the judgment of the court declaring the forfeiture, were all read in evidence without any specific objection by the defendant, and sustained the issue on this plea in favor of the people.

Pleas numbered two and four presented immaterial issues, on which the court should have found for the people, if they were considered by the Court.

It was held by this court in O'Brien v. People, 41 Ill. 456, that it mattered not whether the principal was examined or not before the justice who committed him, upon that charge or some other, provided it was a bailable offense. It was of no importance what the offense charged against the principal may have been, if it was bailable. The only important question is, did the cognizor undertake his principal would appear and answer to the charge.

The plea that the committing magistrate was not a justice of the peace, amounts to nothing. The cognizors admitted by their undertaking that he was a justice of the peace, and the inference is, from, the recitals in the recognizance, that the officer was acting as a justice of the peace — he was defacto a justice of the peace, whether rightfully or not cannot be inquired into in a collateral proce|ding.

As to the seventh plea, we see no objection to the certificate of the justice of the peace; it is all the law requires, (Lawrence v. The People, 17 Ill. 172,) and the clerk’s indorsement of filing is all sufficient.

As to the eighth plea, which avers the death of the principal, no proof was offered on this fact — the onus was on the defendant, and he should have maintained it by sufficient proof.

The court erred in rendering judgment for the defendant Meacham, and it should be reversed and the cause remanded.

Judgment reversed.

I do not concur. The offense with which the principal was charged was not bailable. It was one of which the justice had exclusive jurisdiction. Hence he had no authority to take bail. It was for a simple assault, and the justice should have tried the accused instead of taking bail, he being the only officer or court authorized to take jurisdiction. In my opinion the recognizance was void, and the court below decided correctly in so holding.

took no part in the decision, having decided the case below.