cate was unlawfully made and issued, but which did not state how such use was unlawful, or how the certificate was fraudulently issued and made, does not show probable cause, and is therefore insufficient to sustain a warrant. Characterizing the use as unlawful does not give any information as to the nature of the offense, and states a conclusion of law instead of fact. In re Coleman, 15 Blatch., 415.

1476. When the military authority of the United States, under authority of section 23 of the intercourse act, makes an arrest in the "Indian country," for a violation of sections 20 and 21 of the said act, the military officer acts merely as a police officer, and it must appear upon oath or affirmation that there is probable cause as provided in the constitution of the United States. In re Carr,* 3 Saw., 316.

§ 1477. In order that there shall be probable cause to arrest an offender the magistrate ought to have before him the oath of the real accuser, presented either in the form of an affidavit, or taken down by himself by personal examination, exhibiting the facts upon which the charge is based and on which the belief or suspicion of guilt is founded. In the Matter of a Rule of Court, 3 Woods, 502

§ 1478. A circuit court of the United States will not, on motion, award process to arrest the offender in the first instance, there being no precedent establishing such a practice. United States v. Burr,* 2 Wheeler, 573.

1479. Evidence which consists in the oath of a person that he has been informed by one not upon oath, and that the deponent believes the fact to be true, is not legal evidence to support a warrant of arrest. Ibid.

§ 1480. Under the constitution of the United States no warrant can issue except on probable cause supported by oath or affirmation. So, an order of arrest made in another district upon information filed, without any evidence by way of affidavit to support it, is void, and all proceedings under it must fail. United States v. Shopard, 1 Abb., 433 (§ 3195-99).

§ 1481. The cause of issuing a warrant of arrest is a crime committed by the person charged. The probable cause required by the constitution is a probability that the crime has been committed by that person. Of this probability the court or magistrate issuing the warrant must be satisfied by facts supported by oath or affirmation. The facts, therefore, which are stated upon oath must induce a reasonable probability that all the acts have been done which constitute the offense charged. The question whether a crime has been committed is a question partly of law and partly of fact. What acts constitute the crime is a question of law. Whether those acts have been done is a question of fact. (Per CRANCH, C. J., dissentig.) United States v. Bollman,* 1 Cr. C. C., 373.

$1482. Breaking doors. A constable or a magistrate, having a warrant to arrest a man for assault and battery, has a right to break open the door of the house inhabited by the offender, in order to arrest him. United States v. Faw, 1 Cr. C. C., 487.

§ 1483. Who may make complaint.- Any individual may complain of the infraction of a law of the United States, and on such complaint, under oath, the circuit court may award a warrant, whether such a warrant is applied for by the district attorney or not. United States v. Skinner,* 2 Wheeler, 232.

1484. Duty of officer. An officer who makes the arrest of a prisoner is not bound to disclose the name of the person from whom he received the information which led to the detect ́on and apprehension of the prisoner. United States v. Moses,* 4 Wash., 726.

§ 1485. Where an officer has a party in custody, and also has a warrant for his arrest, he may hold him under such warrant without informing him that he arrests him upon it. United States v. Omeara,* 1 Cr. C. C., 165.

§ 1485. It is the duty of a person seeking to arrest another to make his purpose known, unIss circumstances render his purpose obvious. If the officer is not known to be such he should produce his authority; but this is not necessary when the party knows, or has good rason to know, the authority of the officer. If the party is not in the actual physical presence of the officer, the latter should proceed with secrecy and actually make the arrest. If the pary to be arrested does not recognize the party arresting him to be an officer, he has a right to demand the warrant. The party to be arrested has no right to assault the officer without demanding the warrant or asking explanations. United States v. Jailer of Fayette County, 2 Abb.. 273.

§ 1487. Discharge and subsequent arrest.- A discharge of a person, under a writ of habeas corpus, from the process under which he is imprisoned, discharges him from any further confinement under the process; but it is no bar to subsequent arrest under any other process which may be issued against him under the same indictment. Ex parte Milburn,* 9 Pet., 704.

§ 1488. Warrant signed with a pencil.- A warrant signed by a justice of the peace with a black lead pencil is void, because so easily obliterated. United States v. Thompson, 2 Cr. C. C., 409.

§ 1489. Jurisdiction-Resistance. If a warrant contains on its face a cause of arrest within the jurisdiction of the magistrate, and purports to have been issued within his local jurisdiction, and is in other respects formal, the officer is bound to execute it, and resistance is unlawful, although in fact the offense was not committed within the local jurisdiction of the magistrate. Ibid.

§ 1499. Arrest on a warrant issued in another district.- An arrest by a marshal in a district other than that in which the warrant was issued is invalid and does not justify an imprisonment within the proper district. When the original arrest is unlawful, the detention is improper, although the warrant upon which it was made is lawful. In re Allen, 13 Blatch., 275.

§ 1491. Either judge of a federal circuit court has authority to issue a warrant for the arrest of a criminal, and under such a warrant he may be arrested in any part of the United States. In re Oaksmith,* 11 Op. Att'y Gen'l, 127.

§ 1492. Arrest without a warrant.- A peace officer may take a man in an affray without a warrant. United States v. Pignel, 1 Cr. C. C., 310.

§ 1493. Military custody.- A bench warrant may issue for the arrest of persons confined by military authorities on a charge of treason on ex parte affidavits read in court. United States v. Bollman,* 1 Cr. C. C., 373.

§ 1494. If a treaty provides for the arrest and commitment of persons charged with crime, it thereby confers jurisdiction upon the courts of the land to arrest and commit such persons, according to the law of the land. In re Metzger,* 5 N. Y. Leg. Obs., 84.

$1495. Quære: Whether, when an indictment has been found in one judicial district against a defendant not then within the jurisdiction, the court in that district can issue its warrant to arrest the defendant wherever he may be found within the United States? In re Alexander, 1 Low., 530 (§ 3194).

XX. PRELIMINARY EXAMINATION.

§ 1496. Evidence - Probable cause.- On a preliminary examination preceding a prosecution, evidence of probable cause to believe the accused guilty is sufficient to justify his being held for trial, unless such probable cause is done away with by showing that no such crime has been committed, or that the suspicions entertained of the prisoner were wholly groundless. In re Van Campen,* 2 Ben., 419; 1 Burr's Trial, 11.

§ 1497. On a preliminary examination on a charge of embezzlement against the president of a bank, it is sufficient to prove that the bank was actually in existence and that the accused was acting as its president. Ibid.

§ 1498. A confession of embezzlement, written and signed by the clerk himself, is sufficient evidence of the crime to warrant a commissioner to hold the clerk to trial, although proof of the corpus delicti has not been proved. United States v. Bloomgart, * 2 Bən., 355.

§ 1499. An examining court or judge will not require clear and indubitable proof of the guilt of the accused to justify an order that he shall answer further to the charge made against him. Whether the accused is held or discharged, the order is not conclusive. United States v. Lumsden, 1 Bond, 5.

$1500. The powers of a commissioner of a federal circuit court as to the examination of offenders and the taking of bail are the same as those of justices of the peace in the respective states; and where a state law provides that justices shall not adjourn examinations before them for longer than ten days at any one time, an adjournment by a United States court commissioner for a longer time than ten days is improper, and a recognizance for the appearance of the defendant at such adjourned day is invalid. United States v. Horton,* 1 Dill., 94. $1501. United States commissioners act ministerially and not judicially in the examination of offenders before trial. United States v. Berry,* 2 McC., 58.

$1562. A court has the authority to assume control of proceedings before a commissioner in a criminal case, and proceed therein. Ibid.

§ 1503. In preliminary examinations for offenses against the laws of the United States, a commissioner has only the power and authority of a committing magistrate, and he must proceed agreeably to the usual mode of process against offenders" in the state in which he acts. United States v. Walker,* 1 Pittsb. R., 437.

$1504. Defendant's witnesses. Upon an application to bind a person over to answer upon a criminal charge, the defendant's witnesses are not generally examined. Nor are his witnesses ever sent to the grand jury, except where the attorney for the prosecution consents. But on the application to bind over, the judge may examine witnesses who were present at the time when the offense is said to have been committed, to explain what is said by the wit

nesses for the prosecution. But the cross-examination of the witnesses for the prosecution is improper. United States v. White,* 2 Wash., 29.

§ 1505. The commitment of a prisoner for preliminary examination should be for a short definite period of time. It should not, except for special cause, exceed twenty-four hours, and where cause is shown for delay, great diligence should be required of the government in the procurement of testimony. United States v. Worms,* 4 Blatch., 332.

§ 1506. Persons accused of treason have a right to be heard by counsel on preliminary examination before the court. United States v. Bollman,* 1 Cr. C. C., 373.

§ 1507. The magistrate.- Under the twenty-third section of the twentieth chapter of the act of congress of 1789, declaring that an offender against the United States is, agreeably to the us: al mode of process against offenders in such state where he is found, to be arrested and imprisoned, or bailed, as the case may be, for trial before the court of the United States having cognizance of the offense, the examination preparatory to the trial is to be had before a magistrate, who is to send to the clerk's office of the court copies of the process and recognizances of the witnesses. A state law requiring preliminary hearings to be before a county or corporation court does not apply to offenses against the United States. Prize Ship and Crew,* 1 Op. Att'y Gen'l, 85.

§ 1508. Information without.- Where an indictment for a misdemeanor is found, it may be quashed, and an information may be filed setting up the same offense, without a preliminary examination. United States v. Ronzone,* 14 Blatch., 69.

XXI. BAIL.

SUMMARY - Fowers of United States commissioners. §§ 1509, 1510.— Bond good as a voluntary bond, § 1511.— Bond presumed to have been taken by the clerk under the direction of the court, § 1512.- Responsibility incurred by a recognizance, how determined, § 1513.-— Forfeiture; what necessary to sustain an action on a bond, § 1514; principal must be called, SS 1514, 1517.- Principal not bound by an adjournment, when. § 1515.- Principal not in default until expiration of hour at which he was to appear, § 1516. — Sufficiency of indictment cannot be set up in answer to a sci. fa., § 1518.- Power to reduce bail. § 1519.— Discretion of magistrate in taking bail, § 1520.— Record conclusive as to forfeiture, § 1521.— Principal prevented from appearing by being arrested in another state, § 1522.— Provision for appearance at successive terms of court has reference to regular terms, z 1523. — Discharge of sureties by departure of principal from United States with consent of government, § 1524.

8 1509. A United States circuit court commissioner has the power to compel a person charged with an offense to recognize to appear before him and have the proceedings completed, in those states in which such power is conferred by state laws upon justices of the peace. United States v. Rundlett, §§ 1525-28. See § 1567.

§ 1510. Under the thirty-third section of the judiciary act of 1789, declaring that the accused may, "agreeably to the usual mode of process against offenders" in the state" where he may be found,” “be arrested, and imprisoned or bailed,” a commissioner has power to take a recognize to appear from day to day pending the examination of an accused, wi ere a justice of the peace in the same state has such power. But no other act of congress having given to commissioners such a power, they cannot exercise it where justices of the peace in the same state cannot. This power did not exist at common law, nor can it be inferred from general authority given to take bail. Justices of the peace possessing no such power in New York, a commissioner in that state has no authority to take bail for the appearance of a person accused for examination before himself at a future day. A recognizance so taken is of no validity. United States v. Case, § 1520-32.

§ 1511. The federal courts being bound by state laws in the matter of taking bail in criminal cases, and a local statute providing that "every bond or recognizance deemed good and valid as a common law bond shall be a good statutory bond, and no defense to any action, or sci. fa., prosecuted to enforce such bond or recognizance, shall be available unless it would be a legal and valid defense to a suit at common law upon the same," a recognizance, filed of record, and accepted by the court having power to take it, is binding as a voluntary bond, although it was entered into before the clerk who up to that time had not been appointed one of the commissioners of the court. United States v. Evans. § 1533-35.

§ 1512. Where the clerk, on a day when the court wɛs open, and the defendant was present on trial in court, and there was a mistrial and the cause continued, simply wrote at the foot of a recognizance, “sigred, sealed and acknowledged and approved by me.” signing his name as clerk of the court, and the bond was indorsed and filed by him in the same manner

as all other papers are indorsed when filed, by whomsoever presented, and there is nothing in the record to show that he acted as a committing magistrate in taking the bond, and there is no recital in the bond or elsewhere that the defendant was brought before the clerk for examination and bail by him as a magistrate authorized to hold to bail, the bond must be presumed to have been taken by the clerk under the immediate direction of the court, and is therefore good, though the clerk had no power to hold to bail as a committing magistrate. Ibid.

§ 1513. The nature, extent and limitations of the responsibility incurred and created by a recognizance are to be determined, not by a mere examination of the terms of the instrument, but also by reference to the rules of law which are applicable thereto. These rules apply themselves to the terms of the condition and affect their meaning and operation. United States v. Rundlett, 1525–28.

§ 1514. In order that an action may be sustained upon a recognizance the principal cognizor must be called and his default entered, and the legal effect of the condition is such that it is not broken by non-appearance generally, to be proved by any evidence, but only by nonappearance in answer to a call, to be proved by an entry made on the minutes of the magistrate, and returned by him as a part of the proceedings; and such call must appear to have been made at the time and place when and where the cognizor was bound to appear. Ibid. See § 1572.

$1515. Where a person enters into a recognizance to appear and answer to a complaint before a circuit court commissioner at a certain time and place, an adjournment to another time and place, made in the absence of the accused, does not bind him, though made at the hour named in the recognizance; and where the accused has an hour of grace before his recognizance should be declared forfeited, if adjournment is so made to another place, the recognizance is not forfeited, though, at the expiration of such hour, he is called at the place to which adjournment is made. Ibid.

§ 1516. It is the common law of the New England States, and probably of others, that where a party has recognized to appear before magistrates at a certain hour he is not in default until after the expiration of that hour and the commencement of the next. Ibid.

§ 1517. In an action on a recognizance it must appear from the record that the principal was called at the time and place when and where he was conditioned to appear; and if it does not so appear it cannot be shown by evidence aliunde that he had absconded and would not have appeared if he had been called. Ibid. See § 1572.

§ 1518. Where the bond did not bind the defendant to answer any particular indictment, but only to auswer a “el arge against him for passing counterfeit money,” the insufficiency of the indictment cannot be relied upon as a defense to a sci. fu. up on the forfeited recognizance. United States v. Evans, $$ 1533-35.

§ 1519. Upon an application for a warrant for the removal of a citizen from one state or district to another for trial upon a criminal charge, under section 1014 of the Revised Statutes, the district judge has power, without any writ of habeas corpus, to reduce the bail required by the committing magistrate, if he thinks it excessive. United States v. Brawner, $$ 1566-37.

1520. The discretion of the magistrate in taking bail is to be governed by the compound consideration of the ability of the prisoner to give bail and the atrocity of the offense. Ibid. § 1521. In a proceeding in the name of the United States upon a recognizance, where a record was introduced showing that on a certain day during the term the necessary steps for the purpose of working and declaring a forfeiture of the recognizance were taken, the defendant was held not allowed to offer testimony to prove that the facts stated in that record, showing the forfeiture, were not true. United States v. Ambrose, § 1538.

§ 1522. A prisoner in Connecticut is released from custody upon entering into a recognizance to appear in one of the courts of the state, on a certain day, to answer a certain information against him and abide the order and judgment of the court. He then goes into the state of New York, where he belongs. While there, and before his recognizance is forfeited, he is seized by the authorities of New York and delivered over to the authorities of Maine, upon a requisition from the governor of Maine upon the governor of New York, charging him with the commission of a crime against the laws of Maine before the date of the recognizance, and of which crime his bail knew nothing when they entered into the recognizance. He is taken to Maine, tried and sentenced to imprisonment. It is held that his bail, the recog nizance Leing forfeited, are not released from their obligation by these proceedings. The bail are in fault for the departure of the prisoner to New York, and they could have even then asserted their right to his custody when he was sought to be obtained by the authorities of Maine, and it is to be presumed that they would have obtained him. (FIELD, CLIFFORD and MILLER, JJ.. dissen.) Taylor v. Taintor, § 1539-40. See § 1589.

§ 1523. Where a recognizance provides for the personal appearance of the defendant at the next regular term of the circuit court of the United States at a certain place, and also at

any subsequent term to be thereafter held at that place, the provision for his appearance at any subsequent term has reference to such subsequent term as may follow in regular succession in the course of business of the court. If the defendant appears at the next regular term referred to, and, without the consent of the sureties, enters into an agreement with the government, entered on the minutes of the court, to postpone the trial for a period of uncertain duration, until final decrees shall be entered in the district court, which event may not happen within many months, such agreement releases the defendant from appearing at ar y subsequent term following the then next term in regular succession, and substitutes a contract that he need appear only at such term as may be held after the happening of a contingent event. It therefore supersedes the condition of the recognizance, and releases the sureties. Reese v. United States, §§ 1541-45.

§ 1524. By a recognizance the principal is, in the theory of the law, committed to the custody of his sureties as to jailors of his own choosing, and he is so far placed within their power that they may at any time arrest him upon the recognizance and surrender him to the court. As they cannot arrest him outside of the territory of the United States, and as there is an implied covenant on the part of the principal with his sureties that he will not depart out of this territory without their assent, and as there is an implied covenant on the part of the government that it will not in any way interfere with this covenant between them, if the government enters into a stipulation with the principal, without the concurrence or knowledge of the sureties, consenting to his departure from the United States to remain abroad for an indefinite period, the sureties are discharged. Ibid. [NOTES.-See $$ 1546-1597.]

UNITED STATES v. RUNDLETT.

(Circuit Court for New Hampshire: 2 Curtis, 41-48. 1854.)

Opinion by CURTIS, J.

STATEMENT OF FACTS.-This is an action of debt on a recognizance. The amended declaration, which is demurred to, shows that one Woodbury Gilman was complained of before Horace Webster, one of the commissioners appointed by the circuit court of the United States for the district of New Hampshire, and therein was charged with the crime of presenting to the commissioner of pensions certain false and fraudulent papers for the purpose of obtaining an allowance of a claim for a pension, and the payment of a sum of money from the United States in satisfaction of such claim. That the said Gilman was arrested and brought before the commissioner at his office in Portsmouth, on the 30th day of August, 1853, and such proceedings were thereupon had that Gilman was ordered by the commissioner to recognize in the sum of $2,500, with three sureties, in the sum of $833.33 each, to be and appear before the commissioner at his office in Portsmouth on the 1st day of September then next, at 10 of the clock in the forenoon, further to answer to the said complaint, and then and there wait and abide the order of the said commissioner; that the said Gilman and three sureties, of whom the defendant was one, did so recognize.

That Gilman did not appear at the office of the commissioner on the 1st day of said September, at 10 of the clock in the forenoon, according to the tenor of his recognizance; and the commissioner adjourned to the court-house in Portsmouth, at the same hour, and then and there Gilman was three times solemnly called, and made default, and the sureties were also then and there three times solemnly called to bring in the body of their principal, but did not appear, or bring the principal, and so default was made in the condition of the recognizance, and the same was declared by the commissioner to be forfeited; all which will appear by the record, etc.

§ 1525. Power of commissioners to admit to bail. Governed by state laws. Several questions have been argued upon the demurrer. The first is, whether the commissioner had authority to take the recognizance of a defendant,