be released by payment of the debt or performance of the act stipulated. But in respect to the limitations of their liability to the precise terms of their contract, and the effect upon such liability of any change in those terms without their consent, their positions are similar. And the law upon these matters is perfectly well settled. Any change in the contract on which they are sure ties, made by the principal parties to it without their assent, discharges them, and for obvious reasons. When the change is made they are not bound by the contract in its original form, for that has ceased to exist. They are not bound by the contract in its altered form, for to that they have never assented. Nor does it matter how trivial the change, or even that it may be of advantage to the sureties. They have a right to stand upon the very terms of their undertaking.

§ 1544. Power of sureties to arrest principal.

There is also another view of the stipulation which leads to the same result. By the recognizance the principal is, in the theory of the law, committed to the custody of the sureties as to jailors of his own choosing, not that he is, in point of fact, in this country at least, subjected, or can be subjected by them to constant imprisonment; but he is so far placed in their power that they may at any time arrest him upon the recognizance and surrender him to the court, and, to the extent necessary to accomplish this, may restrain him of his liberty. This power of arrest can only be exercised within the territory of the United States; and there is an implied covenant on the part of the principal with his sureties, when he is admitted to bail, that he will not depart out of this territory without their assent. There is also an implied covenant on the part of the government, when the recognizance of bail is accepted, that it will not in any way interfere with this covenant between them, or impair its obligation, or take any proceedings with the principal which will increase the risks of the sureties or affect their remedy against him.

§ 1545. A stipulation made by the government, with the distinct understanding that the defendant in a criminal case may leave the territory of the United States, releases the surety.

The stipulation in this case was made with the distinct understanding of the parties, that upon its execution Limantour and his witnesses would return to Mexico, and would remain there until the civil cases in the district court were finally disposed of, and that he should afterwards have time allowed him to obtain his witnesses and return to this country with them. The government thus consented that Limantour might depart out of the territory of the United States to a foreign country, where it would be impossible for the bail to exercise their right to arrest and surrender him; and further, it consented that he might remain abroad for a period of indefinite duration. This was all done without the concurrence or even knowledge of the sureties, whose risks were thus greatly increased.

It would be against all principle and all justice to allow the government to recover against the sureties for not producing their principal, when it had itself consented to his placing himself beyond their reach and control. Rathbone v. Warren, 10 Johns., 587, 589; Niblo v. Clark, 3 Wend., 24, 27; S. C. on error, 6 Wend., 236, 245; Bowmaker v. Moore, 7 Price, 223, 231, 234; S. C., 3 Price, 214. Judgment reversed and the cause remanded for a new trial. (a)

(a) Reversing United States v. Reese,* 4 Saw., 629.

1546. Right to bail.- Where a person guilty of contempt of a federal court absconds from the district in which the offense is committed, he must be arrested and imprisoned, if not bailed, before a warrant cân issue for his removal to the proper district for trial. The accused has the right to be admitted to bail if satisfactory bail is offered. United States v. Jacobi, 1 Flip., 113.

§ 1547. A person who has been committed for felony, and admitted to bail, and has forfeited his recognizance, is no more entitled to be bailed than one who has broken prison, unless the presumption of his guilt arising from his default is satisfactorily explained away. Territory v. Mullin,* 3 N. Y. Leg. Obs., 210.

§ 1548. The accused, being charged in three indictments, was admitted to bail upon condition to appear in court to answer any charge, and not to depart without leave. He was present at the trial of one of these indictments, but disappeared during the trial, when the jury were returning with their verdict, and not answering on being called, his recognizance was forfeited. A verdict of guilty was returned, and the defendant was afterward taken into custody on a bench warrant. He was then brought into court and sentenced to pay a fine and be imprisoned. The president remitted the imprisonment on condition that the fine should be paid, which condition was complied with. There was nothing in this pardon to affect the prosecution of the two untried indictments. By order of commitment from the court he was taken into custody under these untried indictments, the marshal receiving him from the penitentiary. The prisoner's counsel moved to enter bail, and at the suggestion of the court that the question might be more fully developed upon a writ of habeas corpus, the writ was issued, and the prisoner brought before the court. On the hearing of the writ, it was held that the prisoner might avail himself of bail as often as occasion might occur without his own inexcusable fault, but that after an unexcused and unatoned, wilful breach of the essential condition of the privilege of liberation upon bail, the privilege does not continue to exist; nor is a renewal of the privilege then demandable of right. The prisoner was considered to have forfeited his privilege of liberation upon bail, independently of any question of contempt. It being apparent from the prisoner's former flight that he might probably again abscond if bail were granted, he was held not entitled to the renewal of his privilege to be bailed as of grace or in the exercise of regulated judicial discretion. The forfeiture of this privilege was held, however, not to affect the prisoner's right to a speedy trial, and the detention having been prolonged during two terms, during which indictments might have been found for other accusations against the prisoner, and there being no probability of a trial at the next session of the court, the defendant was admitted to bail, his former breach being considered in fixing the amount and determining the sufficiency of the sureties. Case of Lee,* 6 Phil., 96.

§ 1549. The court of appeals or the judges of the superior courts of the territory of Florida may, in the exercise of sound discretion and for good cause, let to bail prisoners charged with capital offenses, either before or after indictment. But this discretion should be regulated by settled and established rules and adjudications. After indictment found this discretion ought not to be exercised except in extraordinary circumstances and for most potent reasons. ritory v. Mullin,* 3 N. Y. Leg. Obs., 210.

Ter

§ 1550. Under the organic law of the territory of Florida of 1813, securing the right to bail in all cases, except capital offenses, where the "proof is evident" or the "presumption great," the court will not, upon an application for bail, after examination and commitment, followed by indictment, for a capital offense, examine the proof and take testimony, with a view to that point. Ibid.

§ 1551. It is no ground for bailing a prisoner that a continuance was granted at the motion of the district attorney on account of the absence of material witnesses, which motion was not supported by affidavit, when the reasons given for the continuance were satisfactory to the court. United States v. Jones,* 3 Wash., 224.

§ 1552. The law favors the liberation of a prisoner on bail when confinement is injurious to his health. It is not necessary that the danger which may arise from the confinement should be either immediate or certain. If, in the opinion of a skilful physician, the nature of his disorder is such that confinement must be injurious and may be fatal, the prisoner ought to be bailed. Ibid.

§ 1553. A prisoner charged with high treason and committed on warrant of the district judge, brought before the court on habeas corpus and admitted to bail. United States v. Hamilton,* 3 Dal., 17.

§ 1554. Requisites of bond.— To avoid rendering a recognizance to appear before the examining magistrate an anomaly in judicial proceedings, as close an analogy between such a recognizance and the common one to appear at the court to which it is returned should be observed as the nature of the case will admit. The material parts of the obligation, and of the condition, should be set forth in the body of it, so as to admit of extension, consistently

with the terms of it; and the proceedings to establish and recover for a breach of the condition should be substantially the same as if it had been a recognizance in common form, to appear before the court where the trial is to be had. Dillingham v. United States, 2 Wash., 422,

§ 1555. A recognizance was executed by defendant and another person, before a justice of the peace, for the appearance of the defendant before a United States court to answer to a charge of stealing from the mail. Three days after the signing and acknowledgment one H. appeared and signed the recognizance, the justice adding a memorandum as to the signing and acknowledgment. The name of H. was not inserted in the bond. Held, that H. was not liable jointly with the other parties. United States v. Pickett,* 1 Bond, 123.

§ 1556. It seems that it would have been competent, and proper, for the justice to have taken a separate recognizance from H. Ibid.

§ 1557. It seems, also, that an acknowledgment, without the signatures of the parties, with the certificate of the justice, is all that is required to make a valid recognizance under the laws of the United States. Ibid.

§1558. Whether taken by competent court and pursuant to law. In an action on a recognizance it seems that it is sufficient that the papers filed in the principal case or proceeding, and the entries of record therein, show that the recognizance is one taken by a competent court or officer in a proceeding properly commenced, and within the jurisdiction of the tribunal or magistrate taking the obligation. United States v. George,* 3 Dill., 431. §1559. Recognizances taken for the appearance of the accused in criminal cases are valid only when taken in pursuance of law and the order of a competent court or officer. United States v. Goldstein,* 1 Dill., 413; United States v. Horton,* 2 Dill., 94.

$ 1560. Bonds and recognizances for the appearance, of a person charged with a crime, before the court at the next succeeding term are binding only when taken in pursuance of law and the order of a competent officer or court. So where a commissioner ordered a person charged with two offenses to give bonds in each, in distinct amounts, to appear at the next term of court, one bond, in the aggregate amount, will be invalid and confers no obligation on the sureties. United States v. Goldstein,* 1 Dill., 413.

§ 1561. Describing the offense.— A recognizance provided that the defendant should appear at a time and place to answer for "unlawfully, falsely and deceitfully uttering and publishing, as true, certain false, forged and counterfeited writings for the purpose of defrauding the United States," but did not describe the writings. Held, that as the intent was the gravamen of the offense, the offense was sufficiently described. United States v. George,* 3 Dill., 431.

§ 1562. A recognizance need not be as certain as an indictment; it is sufficient if it sets out an act punishable by the statute, without any of the particulars. United States v. Dennis,* 1 Bond, 104.

§ 1563. A recognizance is sufficient which describes the offense as "stealing from the mail of the United States, contrary to the statute," etc. Ibid.

§ 1564. There is no statute of the United States which punishes a conspiracy to burn a steamboat on the Mississippi river, and a recognizance to answer such a charge is void. United States v. Hand,* 6 McL., 274.

§ 1565. Amount of bail.- Where an indictment does not describe an indictable offense, the justice of the peace who takes bail in the case has a discretion as to the amount of the bail, and no corrupt motive can be imputed to him from the smallness of the bail taken. United States v. Smith, 4 Cr. C. C., 727.

§ 1566. Upon the indictment of a justice of the peace for taking insufficient bail, the act of taking the bail not being illegal, the court refused to admit evidence of a corrupt motive. Ibid.

§ 1567. Taken before a commissioner.- A recognizance taken before a court commissioner need not show on its face that the commissioner had authority or jurisdiction to take it; or that the offense was committed within the district; or the time when it was committed. United States v. George,* 3 Dill., 431. See §§ 1509, 1510.

§ 1568. The power of a United States commissioner to take bail does not cease on the commitment of an offender pending an order for his removal to the district in which the offense in question was committed, and especially at any time before the warrant for removal is issued. United States v. Volz,* 14 Blatch., 15.

§ 1569. Arrest after forfeiture. An accused may be arrested to answer the indictment against him, after he has given a recognizance of bail, and forfeited the same by not appearing. The recognizance is taken to secure the due attendance of the accused to answer the indictment, to submit to trial and the judgment of the court. It is not designed as a satisfaction of the offense, when it is forfeited and paid. Ex parte Milburn,* 9 Pet., 704. Contra, United States v. Milburn,* 4 Cr. C. C., 552. 417

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§ 1570. A justice of the peace of the state of North Carolina has the power in preliminary hearings to take bail for the appearance of an accused before him at a future day. United States commissioners in that state as examining and committing magistrates may, under section 1014, Revised Statutes, exercise the same power in enforcing the criminal laws of the United States. United States v. Harden, 4 Hughes, 455; 10 Fed. R., 802 (§§ 2700-2707). § 1571. President cannot take bail. The question of bail is a judicial one, not executive. Therefore, the president of the United States cannot admit to bail a person imprisoned for an offense against the United States. In re Pease,* 1 Op. Att'y Gen'l, 213.

$1572. Forfeiture. To save his recognizance, even in case of a misdemeanor, the defendant must appear personally. United States v. Mayo,* 1 Curt., 433. See g 1514, 1517.

§ 1573. A defendant in a criminal case is liable to be called on his recognizance either on motion of the district attorney, or by the order of the court, on its own motion, if it sees fit to direct it. Ibid.

§ 1574. It is essential to the breach of the condition of a recognizance, upon which the forfeiture is to arise, that the party who is to appear should be solemnly called before his default is entered; and in an action thereon, it should be clearly proven that the party was called and warned, and neglected to appear. Dillingham v. United States, 2 Wash., 422.

§ 1575. The defendant, in a case of misdemeanor, recognized to appear, must appear on the first day of the term to which the writ is returnable. United States v. Hodgkin, 1 Cr. C. C., 510.

§ 1576. Forfeiture Death of principal. After the forfeiture of a recognizance a scire facias was issued, but before the service the principal died. The surety appeared and asked to be discharged, but the court ordered a scire facias to issue to bring in the representative of the deceased principal, returnable at the next term, and reserved till then the question whether to remit or modify the forfeiture in accordance with section 1020 of the Revised Statutes. United States v. Winstead,* 4 Hughes, 464.

§ 1577. The death of the principal in a recognizance after default and forfeiture does not release his sureties. United States v. Van Fossen,* 1 Dill., 406.

§ 1578. Relief of bail.- The act of February 28, 1839, authorizing the courts to relieve bail in certain cases, seems to contemplate a case where there has been no collusion with the principal, no aid extended to him to escape, and no effort made to defeat the ends of justice. United States v. Duncan,* 2 Pittsb. R., 328.

§ 1579. The courts exercised the power to relieve bail and he common law, and acts of parliament on the subject were regarded as merely in affirmance of the common law. Ibid. $1580. The power may be exercised by the federal courts after judgment. Ibid.

§ 1581. Setting aside forfeiture. Whether a party is entitled to have the penalty remitted upon a forfeited recognizance, on the ground that at the time the forfeiture accrued he was in custody of the officers of a state under a warrant out of a state court, should be determined in an action on the bond rather than on a motion to remit such penalty. United States v. Stricker,* 12 Blatch., 389.

§ 1582. An application to set aside a forfeiture of a recognizance on the ground of irregularities as to the time and place of calling the principal and of entering the forfeiture will not be entertained when it appears that he has absconded and is a fugitive from justice. United States v. Stein,* 13 Blatch., 127.

§ 1583. A person indicted for smuggling, having forfeited his recognizance, made application to the court to have the forfeiture set aside. It appeared that he had, subsequently to the forfeiture, appeared before the court, and that the jury by which he was tried failed to agree, and a nolle prosequi had been entered. It appearing to the court that the defendant was guilty of assisting in the smuggling, the application was refused. United States v. Mercer.* Deady, 502.

§ 1584. Where a defendant who has recognized to appear for trial at a certain time makes default, and he shows by way of excuse that he was taken sick before the time of trial at a distant place in which he was compelled by no necessity to be, and it appears that he could not have reached the place of trial in time had he started the day he was taken sick, it seems that his default must be held to be wilful. Ibid.

§ 1585. After the term at which a recognizance has been forfeited, in a criminal case, the court has no power to remit the forfeiture. United States v. Cookendorfer, 5 Cr. C. C., 113. § 1586. The object of a recognizance is not to enrich the treasury but to combine the administration of criminal justice with the convenience of a person accused, but not proved to be guilty. If the accused has, under circumstances which show that there was no design to evade justice, forfeited his recognizance, but repairs the fault as much as it is in his power, by appearing at the succeeding term and submitting himself to the law, the real intention of the recognizance is effected, and no injury is done. In such a case, all proceedings on the recognizance may be stayed, until it shall appear whether the accused shall continue to sub

mit himself to the law, or 1 all attempt to evade the justice of the nation. United States v. Feely, 1 Marsh., 256.

§ 1587. Where, during the trial for a misdemeanor, the defendant, being on bail, left the court without leave, and the trial proceeded, and he was acquitted, the court directed the default and estreat to be set aside, under the authority of the act of February 28, 1839, providing that in case of the forfeiture of a recognizance in a criminal case, the court shall have authority, in its discretion, to remit the whole or a part of the penalty, whenever it shall appear that there has been no wilful default of the parties, and that a trial can, notwithstanding, be had in the case, and that public justice does not otherwise require the same penalty to be exacted. United States v. Santos,* 5 Blatch., 104.

$ 1588. A recognizance is a contract between the cognizors and the government of the United States that, if the latter would release the principal cognizor from custody, the former would undertake that he should personally appear at the specified time and place, to answer the indictment. The condition of the recognizance is broken by his failure to appear; and the parties to it become absolute debtors to the United States for the amount of the penalty, and must be held liable to pay the same, unless they can show some matter legally sufficient to excuse the failure. United States v. Van Fossen,* 1 Dill., 406.

§ 1589. A person arrested in Kansas for robbing the mails gave bail to appear and answer in a federal court. Pending the trial he went into Missouri, where he had committed a felony, for which he was condemned and imprisoned. It was alleged that the felony was prior to the date of the recognizance. Held, that his sureties were not exonerated, either on the ground that the inability of the defendant was caused by the act of the obligee or of the law, because his failure to appear was brought about by his own act. Ibid. See § 1522.

§ 1590. To answer any indictment that might be found. The circuit court having certified a division of opinion on the question raised by a motion to quash an indictment, in order that the question might be passed upon by the supreme court, the prisoner was required to give a moderate bond to answer any indictment that might be found against him at the next term of the district court. United States v. Petit,* 11 Fed. R., 58.

§ 1591. After a bill of indictment has been found against the prisoner, the court will not inquire into the evidence for the purpose of taking bail. United States v. Jones,* 3 Wash., 224. § 1592. Effect of vacating judgment of conviction. Where the court sets aside a judgment of conviction, at the same term at which it was rendered, the indictment remains, and the recognizance of the defendant and his sureties to appear and answer to it is valid. Basset v. United States,* 9 Wall., 38.

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§ 1593. Trial — Nul tiel record.— Upon a plea of nul tiel record to a suit on a recognizance, denying the recognizance and the pendency of the indictment at the time the recoguizance was taken, the trial is to be by the court if its own record is denied, and by a jury if the record of another court is denied. Ibid.

§ 1594. Quashing indictment.— A recognizance in the usual form, to appear on a certain day, and from day to day, to answer to a certain indictment, and not to depart without leave of court, is not discharged by the quashing of the indictment. United States v. White,* 5 Cr. C. C., 368.

§ 1595. If a recognizance is not binding on the principal it is not binding on the surety. United States v. Hand,* 6 McL., 274.

§ 1596. Power to demand bail.- Congress having made provisions in regard to bail in civil cases, the marshal has no right to require bail in an action of debt at the instance of the United States in the circuit court, for the recovery of a penalty under an act of congress. United States v. Mundel,* 6 Call (Va.), 245.

§ 1597. The power to demand bail must depend on some precise law, and power to direct the practice of the court cannot be extended to include the power to require bail. Ibid.

XXII. JURISDICTION.

[See §§ 14-22, 32, 374, 375, 519, 520, 523.]

SUMMARY - Passing counterfeit national bank-bills, § 1598.- Indian reservations in a state, SS 1599, 1608.- Extent of state jurisdiction, § 1600.— Places within the exclusive jurisdiction of the United States, §§ 1601-1605, 1607.— Crimes committed in forts within a stute, § 1606.- Power of congress, how limited, § 1607.— Plundering a wreck, § 1609.— Manslaughter on a river in a foreign state, § 1610.- Robbery on and running away with a vessel belonging to foreigners, § 1611.- Meaning of the term high seas, § 1612.

§ 1598. The exclusive cognizance of the offense of passing counterfeit national bankbills is in the federal courts, and the state courts have no jurisdiction to punish the offense. Ex parte Houghton, SS 1613-14,