presented in opposition to the charge which may raise a presumption in favor of his innocence, or at least, it must appear indifferent to the court or magistrate called on to bail him whether he is guilty or not.1 Though the action of a committing magistrate or court, on the question of admitting to bail, is the subject of review by an appellate jurisdiction, yet it is final as to other magistrates or courts of co-ordinate or concurrent authority on the same question, and where bail had been refused by the committing magistrate, and also by the court of general sessions, in which court the indictment was pending, and a justice of the supreme court afterwards decided at chambers to admit to bail, the decision was reversed on certiorari, by the supreme court sitting in general term, on the ground that the question was res judicata when brought before the justice of the supreme court. But when bail has been refused on account of insufficiency, the decision does not present a new application for a discharge on offering other bail.2 It was said in one case, that where the crime charged and the circumstances are such that a bail bond will afford reasonable assurance that the accused will appear to stand trial, it is his right that the bond should be accepted in lieu of his personal detention; that the right to detain for trial being a restraint upon personal liberty, is limited to the necessities of society, and when other adequate security can be had, the necessity for personal detention does not arise, and a resort to it is not warranted by law, but is illegal, unjust and oppressive; and in determining whether such security would be adequate, it is necessary to consider the nature of the offence charged, the probabilities of conviction, the penalty to follow it, and the position, sex, social and family relations, and pecuniary means of the accused.3 § 50. OF THE AMOUNT OF BAIL REQUIRED. The Constitution of the United States and of this State both declare that excessive bail shall not be required. What bail should be called excessive, must be determined by the officer letting to bail, on considering the circumstances of the case." 1 Peo. v. Goodwin, 1 Wh. Cr. Cas., 434. Peo. v. Cunningham, 3 Park., 531. Art. 8 of Amendments. Smith v. Trawl, 1 Root, 165. Peo. v. Cunningham, 3 Park., 520. • § 5. It is proper in fixing the amount of bail for the court, to take into consideration the fact that the accused is a man of fortune.1 The recognizance should be for such an amount as will be likely to secure a compliance with its conditions. The judge ought, therefore, in determining its amount, to take into consideration the nature of the offence, and the character and property of the defendant. A person of wealth charged with a State prison offence, would forfeit his recognizance if the amount were such as would be oppressively large when required of a poor and and obscure individual. If, by the commission of a crime the accused has obtained property and retains it, the court should require a recognizance at least for a larger amount than the value of such property. The offender should not be permitted to make the crime itself an instrument for his escape. The amount should not be oppressive, but never so small as to hold out to the accused an inducement to forfeit his recognizance.2 § 51. OF THE SURRENDER OF THE PRISONER BY HIS BAIL. Bail may surrender their principal in criminal as well as civil cases. 3 Special bail may arrest his principal at any place or at any time to render him in discharge of the bail. The bail may make the arrest himself, or delegate the power to another or others in writing, to make the arrest for him. Either the bail or his deputy may call in the aid of others in making the arrest, but such aid must be rendered in the presence of the person making the arrest.4 Where a private individual arrests one under recognizance to appear and answer for a criminal offence, without any deputation or authority in writing, the arrest is illegal, and does not therefore discharge the recognizance.5 Where the recognizance has been forfeited, the surety cannot, as a matter of right, discharge himself from liability by a surrender of the principal, though the court may, in its discretion, receive a surrender and remit the penalty in whole or in part. Ex parte Banks, 22, Ala. Rep., 89. ' Swan's Justice, p. 483. Harp v. Osgood, 2 Hill, 216; Hawk.P. C., B. 2, ch. 15, § 3; 2 Hale's P. C. 124, ed. 1778; 1 Chit. Cr. L., 104, Phila. ed., 1819. 4 State v. Mahon, 3 Harrington, 568. Com. v. Johnson, 3 Cush., 454. Peo. v. Moore, 2 Douglas, 1. Bail may take their principal in another State, and may break the outer door of the house in order to take their principal; so, also, may the person deputed by the bail.1 open The taking is not considered as the service of procees, but as a continuation of the custody, which had been at the request of the principal committed to bail. The principal may, therefore, be taken on a Sunday. The dwelling house is no longer the castle of the principal in which he may place himself to keep off the bail. If the door should not be opened at midnight, the bail may break it down and take the principal from his bed if that measure should be necessary to enable the bail to take him.2 The render of the principal in court and the refusal of the sureties to stand as bail until another court, to which it was proposed to respite the recognizance, is a virtual surrender of the principal; a right which belongs to the bail even in criminal cases. No particular form, as in civil cases, has been prescribed. When the defendants refuse to stand any longer as bail, the court shall order the principal into custody, unless new bail has been furnished. The court has not power to compel a continuance of the responsibility against the express dissent of the bail.3 If the defendant is indicted and arrested upon a warrant before a default of appearance, it is equivalent to a surrender and the bail are discharged.4 In case it becomes necessary for the bail to surrender his principal, and he wishes to deputize some third party to make the arrest, he should procure a certified copy of the recognizance from the clerk of the court with whom it is entered or filed, and indorse thereon or annex thereto a power of attorney, deputizing such person for that purpose. § 52. GENERAL REQUISITES AND VALIDITY OF RECOGNIZANCES. A recognizance is defined as an obligation of record entered into before a court or officer duly authorized for that purpose, with a condition to do some act required by law which is therein specified.5 1 Nichols v. Ingersoll, 7 John. R., 145; Petersdorf on bail, 514; 8 Pick, 138; 17 Mass., 591, 604. Com. v. Brickett, 8 Pick., 140. Peo. v. Clary, 17 Wend., 373. Peo. v. Stoger, 10 Wend., 431. Bouv. L. Dic.; Peo. v. Felton, 36 Barb., 429. A recognizance conditioned for the appearance of M at the next court of sessions to be held at the court house in the city of H, to be tried by a jury upon an indictment for forgery, is to be construed as requiring the appearance of M at the next court of sessions to be held in the city of H, and not at the next court of sessions to be there held at which a jury shall be summoned.1 A recognizance taken for a purpose not authorized by law is void; so also where the court has no authority to act.3 In a recognizance it is not necessary to set forth the offence with the particularity required in an indictment.4 Nor is it necessary, in order to charge the surety in a recognizance, that the principal should unite in the same recognizance; it is enough if the instrument is signed by the person sought to be charged. A recognizance which requires the party to "appear at the next court of general sessions, and answer all such matters as shall be alleged against him, and not depart the court without leave,” was held valid. It was not necessary that it should recite any particular charge; the legal effect of it was to require the recognitor to answer any charge that might be preferred against him until discharged by act of court. A recognizance was conditioned that the prisoner should appear at a court of general sessions to be held on the fourth Monday of February next, to answer, &c., and not depart the court without leave, it was held: 1. That the time when the prisoner was to appear was stated with sufficient certainty. 2. His default might be entered on any day during the term. He was bound to attend and answer during the term unless discharged. The English practice of giving notice to the bail where the prisoner is to be called later than the first day of the term, does not prevail here.7 A recognizance conditioned for the appearance of the prisoner "at the next court of sessions, to be held at the court house in 2 ' Peo. v. Derby, 1 Park., 392. 7 ' Harrington v. Brown, 7 Pick., 332. '11 Mass., 337; 7 Id., 280; 12 Id., 419; 16 Id., 198. Peo. v. Blankman, 17 Wend., 252. Peo. v. Huggins, 10 Wend., 465. Gildersleeve v. Peo., 10 Barb., 35. ' Peo. v. Blankman, 17 Wend., 253; Peo. v. Stoger, 10 Id., 431. the city of H., to be tried by a jury," is to be construed as requiring his appearance at the next court of sessions to be held in the city of H, and not at the next court of sessions there, at which a jury shall be summoned.1 A misnomer of the court, at which the party is to appear, contained in a recognizance, e. g., where the "court of sessions" is named as the "general court of sessions of the peace" will not necessarily avoid it. A "descriptio curia" may be treated like a descriptio personæ.' 66 112 A recognizance taken in the proper court and returnable "at the next court of oyer and terminer is not void for uncertainty." The fair interpretation is, that the court of oyer and terminer of the county where the indictment was found, and where it could be tried, and where the recognizance was taken, was intended.3 § 53. RECOGNIZANCE, HOW TAKEN. All recognizances required or anthorized to be taken in any criminal proceeding in open court in any court of record shall be entered in the minutes of such court, and the substance thereof shall be read to the person recognized; all other recognizances, in any criminal matter or proceeding, or in any proceeding under the laws respecting the internal police of this State shall be in writing, and shall be subscribed by the parties to be bound thereby.* The following is the clerk's address upon taking the recognizance of a prisoner: "You, and each of you, acknowledge, yourselves to be indebted to the people of the State of New York, to wit: You A, B, in the sum of one hundred dollars, and you C, D, in the sum of one hundred dollars, to be levied of your and each of your goods and chattels, lands and tenements to the use of the said people, if default be made in the condition following, to wit: The condition of this recognizance is such, that if A, B, shall appear at the next court (or from day to day during the sitting of this court), of (state the court), to be held in and for the county of Rensselaer, then and there to answer and stand trial upon a certain indictment against him for felony (or whatever may be the Peo. v. Derby, 1 Park., Cr. R., 392. ' Peo. v. McCoy, 39 Barb., 73. 2 R. S., 746, § 31. |