gaged in executing such warrant without the Philippine Islands, shall have all the powers of a marshal of the United States so far as such powers are requisite for the prisoner's safe-keeping and the execution of the warrant.

Act February 9, 1903, c. 529, 32 Stat. 806, U. S. Comp. Stat. 1905, p. 164.

§ 1541. Arrest and bail of persons found operating illicit distillery.

Where any marshal or deputy marshal of the United States within the district for which he shall be appointed shall find any person or persons in the act of operating an illicit distillery, it shall be lawful for such marshal or deputy marshal to arrest such person or persons, and take him or them forthwith before some judicial officer named in section one thousand and fourteen of the Revised Statutes, 12 who may reside in the county of arrest or if none, in that nearest to the place of arrest, to be dealt with according to the provisions of sections ten hundred and fourteen, ten hundred and fifteen, ten hundred and sixteen13 of the said Revised Statutes. § 9, act March 1, 1879, c. 125, 20 Stat. 341, U. S. Comp. Stat. 1901, p. 718.

§ 1542. United States commissioners may arrest for internal revenue violations.

Warrants of arrest for violations of internal revenue laws may be issued by United States commissioners upon the sworn complaint of a United States district attorney, assistant United States district attorney, collector or deputy collector of internal revenue, or revenue agent or private citizen, but no such warrant of arrest shall be issued upon the sworn complaint of a private citizen unless first approved in writing by a United States district attorney.

Part of § 19, act May 28, 1896, c. 252, 29 Stat. 184, U. S. Comp. Stat. 1901, p. 717.

1543. Excessive bail prohibited. Excessive bail shall not be required.

Part of 8th Amendment, U. S. Constitution.

The amendment is given in full in a subsequent chapter of this Code. 14

12 Ante, § 1537.

13 Post $$ 1544, 1545.

Fed. Proc.-82.

14 See post, § 1608.

1297

It is a limitation upon the Federal government and not upon the States.15 to require more bail than the defendant can give has been held a require ment of excessive bail.16

§ 1544. Bail admitted in cases not capital.

Bail shall be admitted upon all arrests in criminal cases where the offense is not punishable by death; and in such cases it may be taken by any of the persons authorized by the preceding section16 to arrest and imprison offenders,[a]-[c]

R. S. § 1015, U. S. Comp. Stat. 1901, p. 718.

[a] Bail, when allowed-power to take.

Under the above section bail may be admitted by a commissioner upon all arrests in criminal cases where the offense is not punishable by death.19 The Federal laws proceed upon the theory of permitting bail until the accused has been adjudged guilty by a court of last resort.20 The power is allowed under the section only in cases of violations of United States laws and is limited to the taking of security for the appearance of the accused at the time and place set for trial, and not for the appearance from day to day. It applies only to bail before conviction.3 Although a party has forfeited his right to bail by absconding he may still be let to bail if there be a delay in the trial. He may, however, be required to give additional security,5 and cannot demand bail as a matter of right.6 While bail cannot be ordinarily granted in extradition cases it cannot be said that the circuit court may not under special circumstances extend that relief.7 It has been granted also in Chinese deportation cases. 8 The court cannot grant bail in a case without power to do so by law.9 It has been held that a justice of the peace has no power to admit to bail after commitment.10 A commissioner may release on bail at any time before warrant of removal.11 It has been held, however, that a commis.

2 United States v. Case, 8 Blatchf. 250, Fed. Cas. No. 14,742.

3 Hudson v. Parker, 156 U. S. 285, 39 L. ed. 427, 15 Sup. Ct. Rep. 450. 4 United States v. Lee, 6 Phila. 96, Fed. Cas. No. 8,180.

5 United States v. Feely, 1 Brock. 255, Fed. Cas. No. 15,082.

6 United States v. Lee, 6 Phila. 96, Fed. Cas. No. 8,180.

7 Wright v. Henkel, 190 U. S. 40, 47 L. ed. 948, 23 Sup. Ct. Rep. 781. 8 In re Ah Tai, 125 Fed. 797.

68.

9 United States v. Hudson, 65 Fed.

10 United States v. Faw, 1 Cr. C. C. 486, Fed. Cas. No. 15,078.

11 United States V. Volz, 14 Blacthf. 15, Fed. Cas. No. 16,627.

sioner has no power to take a recognizance for the appearance before himself at a future day, of a person charged with a crime against the United States.12

[b] Recognizance or bail bond.

The omission in the undertaking to set forth that the defendant had been indicted or ordered admitted to bail is not fatal.14 It is held sufficient if it sets forth an offense punishable under the United States laws without stating particulars.15 Where the examining magistrate acts within his jurisdiction an order requiring bail and a bail bond are not void although the magistrate may have erred in judgment as to law and fact.16 Hence it is no defense in a bail bond that the information or indictment was defective or described no offense.17 The form of the bail bond should substantially conform to the requirements of the law of the State where the magistrate is sitting.18 It is held, however, that it need not show on its face the authority of the commissioner to take it, or that he had jurisdiction.19 In enforcing a forfeited bond the government is not subject to the restrictions of the State law.1 The undertaking is valid although not signed by the parties.2 The signature at a subsequent time does not make one a party thereto whose name does not appear in the body of the instrument.3 A single recognizance for a total amount is void where separate recognizances are required. It is not necessary that an ordinary bail bond be signed in the presence of the court. It apparently may be taken and acknowledged by the clerk of the district court duly authorized by the judge. If there is no authorization shown it is presumed to be taken under the immediate direction of the court. It is held in an early case that money cannot be taken in lieu of a bail bond.7

[c] Liability on bail bond.

When the defendant fails to appear and the bond is duly estreated, the United States acquire a perfect cause of action against the surety, en

12 United States v. Case, 8 Blatchf. 431, Fed. Cas. No. 15,199; United 250, Fed. Cas. No. 14.742. States v. De Grieff, 10 Reporter, 258,

14 United States v. Dunbar, 83 Fed. Fed. Cas. No. 14,935a; United States 151, 27 C. C. A. 488. v. Atwill. Fed. Cas. No. 14,475.

15 United States v. Dennis, 1 Bond, 103, Fed. Cas. No. 14, 949.

16 United States v. Reese, 4 Sawy. 629, Fed. Cas. No. 16,138.

17 United States v. Reese, 4 Sawy. 629, Fed. Cas. No. 16,138; United States v. Evans, 2 Fed. 147, 2 Flip. 605; United States V. Stein, 13 Blatchf. 127, Fed. Cas. No. 16,403; Hardy v. United States, 71 Fed. 158, 18 C. C. A. 22.

18 United States v. Insley, 54 Fed. 221, 4 C. C. A. 296.

19 United States v. George, 3 Dill.

United States v. Insley, 54 Fed. 221, 4 C. C. A. 296.

2United States v. Pickett, 1 Bond. 123, Fed Cas. No. 16,043. 3 Idem.

4Unitel States v. Goldstein, 1 Dill. 413, Fed. Cas. No. 15,226.

5 Hunt v. United States, 63 Fed. 569, 11 C. C. A. 340; Hunt v. United States, 61 Fed. 795, 10 C. C. A. 74.

United States v. Evans, 2 Fed. 147, 2 Flip. 605.

7United States v. Faw, 1 Cr. C. C. 486, Fed. Cas. No. 15,078.

forceable in the proper forum upon due notice.9 Where, however, the surety resides in another district and remains in such district his personal liability on the bond cannot be established in any other place10 and two returns nihil to a writ of certiorari in the district in which the bond is filed is not equivalent to personal service on such surety in the district of his residence.11

An agreement to continue the case for an indefinite time discharges the bail. 12 So also the bail is discharged by an agreement postponing the appearance of the defendant.13 Likewise an agreement between the government and the defendant which allows the latter to leave the country, works a release.14 Where the defendant forfeits his recognizance a motion in arrest of judgment will not be heard until he appears and submits to the jurisdiction.15 The death of the defendant after default will not exonerate the bail; 16 nor will the subsequent conviction and imprisonment of the defendant under State laws; 17 nor conviction and imprisonment by the authorities of a State to which a person out on bail is surrendered upon requisition by a State to which he has gone.18 Interest cannot be recovered on the bail bond, nor any amount in excess of the penalty and costs.19 The sureties have no right of action against the accused for the amount of forfeited bail, in the absence of express contract;20 and no right to subrogation to the rights of the United States as provided by R. S. § 3468, respecting the sureties on other bonds to the government.1

§ 1545. Bail in capital cases.

Bail may be admitted upon all arrests in criminal cases where the punishment may be death; but in such cases it shall be taken only by the Supreme Court or a circuit court, or by a justice of the Supreme Court, a circuit judge, or a judge of a district court, who shall exercise their discretion therein, having regard to the nature and circumstance of the offense, and of the evidence, and to the usages of law.

R. S. § 1016, U. S. Comp. Stat. 1901, p. 718.

9 Kirk v. United States, 124 Fed. 324; Kirk v. United States, 137 Fed. 754.

ed States v. Erskine, 4 Cr. C. C. 499, Fed. Cas. No. 15,057.

16 United States v. Van Fossen, 1

10 Kirk v. United States, 137 Fed. Dill. 406, Fed. Cas. No. 16,607.

754.

17 Idem.

18Taylor v. Taintor, 16 Wall. 371, 21 L. ed. 287.

19 United States v. Brodhead, 127

12 Reese v. United States 9 Wall. U. S. 213, 32 L. ed. 147, 8 Sup. Ct. 13, 19 L. ed. 541.

13 United States v. Backland, 33 Fed. 157.

Rep. 1191.

20United States v. Ryder, 110 U. S. 737, 28 L. ed. 308, 4 Sup. Ct. Rep.

14 Reese v. United States, 9 Wall. 196. 13, 19 L. ed. 541.

15 United States v. Askins, 4 Cr. C. C. 98, Fed. Cas. No. 14.471; Unit

1 United States v. Ryder, 110 U. S. 739, 28 L. ed. 308, 4 Sup. Ct. Rep. 196.

A court possessing the power to bail prisoners not committed by itself may award a writ of habeas corpus for the exercise of that power.3

§ 1546. Bail on appeal to Supreme Court from highest State court. When a writ of error is issued for the revision of the judgment of a State court, in any criminal proceeding where is drawn in question the validity of a statute of, or an authority exercised under, the United States, or where any title, right, privilege or immunity is claimed under the Constitution, or any statute of, or commission held or authority exercised under, the United States, the defendant, if charged with an offense that is bailable by the laws of such State, shall not be released from custody until a final judgment upon such writ, or until a bond, with sufficient sureties, in a reasonable sum, as ordered and approved by the State court, is given; and if the offense is not so bailable, until a final judgment upon the writ of error.

R. S. § 1017, U. S. Comp. Stat. 1901, p. 718.

The jurisdiction of the Supreme Court on error to State courts is considered elsewhere.5

§ 1547. Bail on appeal to Supreme Court from circuit and district courts.

Where such writ of error [i. e., from a circuit or district court to the Supreme Court under sections 5 and 6 of circuit court of appeals act of 18917] is allowed in the case of a conviction of an infamous crime, or in any other criminal case in which it will lie under said sections 5 and 6, the circuit court, or district court, or any justice or judge thereof, shall have power, after the citation is served, to admit the accused to bail in such amount as may be fixed.

Clause 2 of Supreme Court Rule 36, promulgated May 11, 1891. The Supreme Court promulgated Rule 36 upon the day the opinion in In re Claasen was handed down, and set at rest some questions raised in that case. That decision and the rule virtually serve to explain each other. The Supreme Court has since held that the power to admit to bail may be exercised by another Supreme Court justice than the one assigned to the particular circuit and one not strictly speaking a justice or judge of the circuit or district court from which the appeal is taken.10

3 Ex parte Bollman, 4 Cranch, 75,

2 L. ed. 554.

Ante, § 38. 7 Ante, § 42.

$140 U. S. 200, 35 L. ed. 409.

9 Hudson v. Parker, 156 U. S. 284, 39 L. ed. 426, 15 Sup. Ct. Rep. 450. 10 Ibid.