Columbia, November, 1866.

of the guilt of the accused, and if he entertained doubts of the innocence of the accused, it would be proper that the case should be investigated by a grand-jury." When the examination was closed, the petitioner, by his counsel, moved "for a discontinuance of the prosecution," which motion, after argument thereon, was refused. The petitioner insisted that he was entitled to the judgment of the District Judge "upon the merits of the case," but the Judge, considering that he was not, by a proper construction of the Act, required to decide upon the guilt or innocence of the accused, but only as to the propriety of the discontinuance of the prosecution before it was submitted to a grand-jury, declined to do more than announce the result of his judgment upon the merits of the petitioner's application. From this determination and action of the District Judge the petitioner has appealed to this Court, and renews here the questions which were made below.

From the determination of the District Judge, refusing, upon examination had, to direct the discontinuance of the prosecution, no appeal to this Court is given by the Act, although great care is therein taken to secure the right of appeal from the judgment of the Court on various other matters over which jurisdiction is conferred; and on general principles, heretofore established, in the absence of such express grant, no appeal lies. Carmand vs. Wall, 1 Bail. 209; State vs. Friday, 4 Rich. 291; State vs. Bowen, 3 Strob. 573. In the view which this Court takes of the proper construction of the section under the provisions of which the proceeding below was had, there would be as much propriety in granting an appeal from the presentment of a grand-jury.

In this, as in various other cotemporary statutes, the General Assembly was anxiously engaged in providing for the exigencies growing out of the disruption of our old social organization and the formation of new relations thereby rendered necessary. It was foreseen, as one of the probable

Ex parte James Bell.

incidents of this change, that, far more than heretofore, there would be preferred accusations of the minor offences that are either wholly groundless or at most frivolous or impolitic in their character, by the prompt discontinuance of which upon suitable conditions, where this seemed necessary, the public interest would be better subserved than by their public prosecution through the regular course of law. The section under review was designed to meet this necessity of our public condition, and the power therein conferred upon the District Judge to examine and supervise all prosecutions, commitments and warrants of arrest, is for the exercise of a wise discretion in reference to such design. He is to examine into the merits of the prosecution, not of the case. Instances may occur, as they have occurred, where, though upon trial of the cause no other judgment than that of the defendant's guilt can legally be rendered, the prosecution itself yet has very little merit, or is even mischievous in its effects upon the public peace and order. The construction upon which the petition insists would convert what, in the judgment of this Court, was intended to be a preliminary examination into the merits of the prosecution, in order to ascertain whether a proper regard for the public interests requires its further pursuit, into a trial of the cause. A full investigation of this kind, with a view to the determination of the guilt or innocence of the accused, would, if in its result unfavorable to the party, seriously impair that impartiality of judgment which ought to preside in the subsequent trial in Court.

In

A provision, in almost the same terms, contained in the ninth section of the Act of 1856, (12 Stat. 489,) investing the Recorder of the City of Charleston with this supervisory power, is believed to have furnished the model for this. the practical exercise of his power, that officer, it is understood, has acted in conformity with the construction of the law herein adopted. For purposes somewhat similar, the power of preliminary examination is exercised elsewhere by

Columbia, November, 1866.

the magistrate before whom the accused is brought, or by a Court organized for the occasion. In all such cases, the inquiry is limited to the purpose of ascertaining whether there is "probable or sufficient cause" for charging the prisoner with the offence; and it is only where, in the judg ment of the officer or Court, there is no such cause, that he may be discharged. Virginia Code C. C., 204, 205, pp. 824, 828; 4 Bl. Com. 296. A larger discretion is, by the section under consideration, vested in our District Judges,-a discretion such as is often and well exercised by grand-juries and prosecuting officers, which regards not alone the probability or sufficiency of the cause shown for charging the accused with the offence, but also the propriety, under the particular circumstances, of pursuing the offender to punishment, and the effect likely to be produced on the public interest by the further prosecution of the charge. The purpose of the examination here directed is to enable the officer wisely to exercise this discretion, for the protection of individuals, and the good of the community. If, upon such occasion, counsel attend him, it is only by his sufferance and for the aid which he may derive from their learning and skill. In the discharge of his official functions in this behalf he is not responsible to the accused, who has no right to demand the reasons of his determination therein, nor can he be controlled, in the exercise of the discretion which the law has given him, by this Court.

The motion to reverse the order of the District Judge is refused, and the appeal dismissed.

DUNKIN, C. J., and WARDLAW, A. J., concurred.

Motion refused.

Howell vs. Lambert.

ZECHARIAH HOWELL vs. CHARLES H. LAMBERT.

Practice-Liquidated demand-Reference to Clerk.

Agreement in the form of a promissory note, by which defendant promised to pay to plaintiff "two hundred and twenty-five dollars, less store account, for value received," is not a liquidated demand within the meaning of the Act authorizing actions on such demands to be referred to the Clerk.

A writing which does not within itself furnish the means of precisely ascertaining the exact sum due, so as to render a resort to extrinsic evidence wholly unnecessary, is not within the Act.

BEFORE MUNRO, J., AT CHESTER, FALL TERM, 1860.

The report of his Honor, the presiding Judge, is as follows: "This case was upon the writ of inquiry docket. On Tuesday evening, having disposed of the litigated business of the Court, and when about to discharge the jurors for the term, my attention was called to the case by the plaintiff's counsel, with the view, as I thought, of executing a writ of inquiry. Then it was that Mr. Thomson moved for leave to enter an appearance for the defendant, and to transfer the case to the issue docket; but, as his motion was not supported by an affidavit, it was refused. Upon the refusal of his motion to appear and transfer the case, Mr. Thomson then moved for a nonsuit, I think, upon the ground that the instrument declared on was not a promissory note, or was not such a liquidated demand as could be referred to the Clerk. This I also refused. The plaintiff's counsel then moved to refer it to the Clerk, which was accordingly done. Upon going into Court on the next morning, to hear motions, Mr. Thomson again renewed his motion for leave to appear, and in support of his motion read an affidavit made by the defendant, which I presume will accompany this report.

Columbia, November, 1866.

"This motion was also resisted by the plaintiff's counsel, upon the ground that it came too late, and besides, if he had been notified that such an affidavit would have been introduced, that it was in his power, as he said, to have contradicted it in several particulars. The motion was refused."

The defendant appealed, and now moved this Court in arrest of judgment, and for a new trial, on the grounds:

In arrest of judgment

1. Because the paper sued on was not such a paper as could, under the statute, and the practice of our Courts, legally be referred to the Clerk, but should have been submitted to the jury to assess the damages.

2. Because the paper sued on was not a note of hand, and it was declared on as such, and there was no other account or bill of particulars filed with the plaintiff's declaration.

For a new trial—

1. Because the defendant, under the affidavit submitted to his Honor, should have been permitted to appear and plead to the case as made.

2. Because the paper sued on was not a note of hand, and there was no certain sum admitted to be due, and was not in law a liquidated demand, as there was no certain sum admitted to be due by the defendant.

COPY NOTE.

$225.00.

CHESTER, S. C., July 18, 1859. Six months after date, I promise to pay to Z. Howell, or Bearer, two hundred and twenty-five dollars, less Store account, for value received.

(Signed)

C. H. LAMBERT.