Page:Federal Reporter, 1st Series, Volume 10.djvu/383

DNITED BTATEB V. EBBS. 371 �aureties, prepared by his brother, I. N. Ebbs, vrilla a condition to lippear before the commissioner for an examination on the twentieth day of August. This bond was presented by I. N. Ebbs to the commissioner and was by bim accepted in the absence of the defend- ant, and the deputy marshal knew that said bond had been accepted. The defendant made his appearance at the time and place designated in the bond. Before the hearing of the case commenced the com- missioner, then regarding the said bond as erroneous and void, gave a verbal direction to the deputy marshal to arrest the defendant and hold him in custody until the case could be heard. The deputy mar- shal made an arrest on the warrant which he had long had in his hands. �I am of the opinion that when the appearance-bond was accepted by the commissioner, and the deputy marshal was advised of that fact, the warrant in his hands was virtually superseded and did not authorize an arrest. If the bond accepted by the commissioner was irregular, or in any way insuflScient, he ought to have proceeded to have the defendant arrested in the manner provided in section 1019, Eev. St. This verbal direction to arrest was without legal force and authority. An examining and committing magistrate bas no power verbally to command an arrest, except for a felony or breach of the peace committed in his presence, or for contempt in open court, or 80 near as to disturb his officiai proceedings. After hearing a case he may, by verbal order, direct an officer to take a defendant into custody until a proper mittimus can be prepared, but in no case can he commit a defendant to prison without a written warrant setting forth the cause of such commitment in specifie terms. �The correctness of the form of the bond, as an appearance-bond, and the solveney of the sureties, are not denied, but the counsel of the marshal insisted that the bond was erroneous and void, as the commissioner had no power to take such a bond in the nature of a recognizance in the absence of the principal, and before a hearing of the matter. �It is well-settled law in this state that a bond duly signed, with sureties, and with a condition for the appearance of the principal in a criminal case before a court, accepted by a person authorized to take bail, is good as a recognizance. Edney's Case, 2 Winst. 463 ; Houston's Case, 76 N. G. 256. �In the case of a formai recognizance, the obligation is generally aclmowledged by the parties in open court and entered of record, and they need not sign their hames; but in the case of a bond in the ��� �