Stockton, J.
The Code, section 2781, requires that the *219evidence before the justice shall be reduced to writing, and subscribed by the witnesses. If the justice fails to carry out this provision of the Code, whatever other remedy defendant may have, we do- not see that such failure furnishes any good reason why the proceedings should be dismissed when brought into the District Court. The jurisdiction of the District Court, in such cases, is in no sense in the nature of an appeal from the judgment or decision of the justice. He will be presumed to have exercised his authority properly, if he requires defendant to give security to keep the peace. The inquiry in the District Court is, as to whether there is still any just reason to fear the commission of an offence against the person or property of complainant? and upon hearing the proofs and allegations, the court may either discharge the undertaking entered into by defendant, or may require a new one, for a time not exceeding one year. Code, section 2789.
In the present case, we do not see anything in the record, from which we can conclude that the justice did not reduce to writing all the evidence given before him. The evidence of the complainant is in writing, and was returned to the District Court. That any other witness was examined, and their testimony not reduced to writing, does not appear from the transcript of the justice, and is not otherwise shown by defendant. We cannot say that the justice has not reduced to writing the testimony of all the witnesses examined before him. If the justice does not send up all the depositions and papers in the cause to the District Court, the defendant may, by rule, compel their production. The court cannot presume that the justice has not done his whole duty.
Viewing this motion in the sense of a motion to discharge the defendant, without requiring him to pay the costs incurred in the District Court, if allowed at all, it must be for some other reason than that assigned in the motion. We know of no reason why the District Court should be confined to the testimony written down by the' justice. The Code does not require it, nor did the defendant insist on such a *220course in the District Court, or make any objection to tbe introduction of oral testimony. If either party desires it, tbe fullest investigation made be bad; nor can we see that either reason or justice requires, that tbe parties should be restricted to tbe testimony given before tbe inferior court. Tbe law provides that tbe defendant must appear at tbe next term of tbe District Court, and abide tbe order of tbe court. If be does not so appear, and tbe complainant does, tbe court shall forfeit his bond, and order it to be prosecuted. If neither party appears, the undertaking is discharged at tbe defendant’s costs. The law is silent upon the subject of costs, where a trial is had in the District Court, and there does not appeat to be any good reason for requiring defendant longer to give bond to keep tbe peace. The costs before the justice are properly chargeable to defendant. Of this, we do not understand him to complain. He objects, however, to being required to pay the costs in the District Court, when that court had found in his favor, that there was no just reason to fear that be would commit tbe offence alleged, and ordered him to be discharged from his bonds. We think tbe objection is well founded. If tbe defendant is successful in the District Court, he should not be burthened with the costs of the trial. The two questions cannot well be separated. If he is entitled to be discharged from bis bonds, be is on tbe same ground, entitled to be discharged from the costs in tbe District Court; tbe one judgment is an incident of tbe other.
The judgment of the District Court is, therefore, reversed, and defendant should be discharged on the payment of tbe costs incurred in the justice’s court.