Page:Federal Reporter, 1st Series, Volume 2.djvu/157

 150 FEDEBAIi REPOBTEB. �and his sureties would, by such practice, be allowed to judge of the propriety and utility of his appearance, which cannot be pennitted. State v. Adanis, 3 Head. 259; State v. Rye, 9 Yerg. 386; U. S. v. Reese, 4 Saw. 629; U. S. v. Stein, 13 Blatchf. 127; State y.Stout, 6 Halst. 12e. �The defence most relied on is that the clerk had no au^hor- ity to takethis bond, and, having no authority, the scirefacias must be quashed. It is argued that this scire facias must speak by the record, strictly pursue it, and show by it the validity of the bond; that it was taken by a competent officer, and ail the jurisdictional facts to support his action; that by this record it appears that the clerk, as of his own authority, took this bail bond, because the minutes of the court do not show that he took it by order of the judge sitting either as an officer authorized to hold to bail, or as a court acting ûnder its general powers in the premiaes ; and that inasmuoh as the clerk is not named in the Eevised Statutes, §§ 1014, 1015, as an officer authorized to hold to bail, the bond is void. In support of this position many authorities are cited show- ing how strict the practice was that the scire facias must be based on a record showing ail the essential jurisdictional facts to support the validity of the proceedings and justify an award of execution. State v. Edwards, 4 Humph. 226; State V. Austin, Id. 213; State v. Cherry, Id. 232; State v. Smith, 2 Me. 62; Bridge v. Ford, 4 Mass. 641; People r. Kane, 4 Denio, 630; State v. Edgarton, 7 Rep. 122, (Boston, 1879;) Foster's Soi, Fa. 279. �It is to be observed, however, that in Tennessee, since the above cases, these niceties of practice have been abandoned by legislative direction. Act of 1852, c. 256, T. & S. Code, § 5155. By this section "every bond or reeognizance deemed good and valid as a common-law bond shall be a good statu- tory bond, and no defence to any action, or scire facias, prose- cuted to enforce such bond or reeognizance, shall be availa- ble unless it would be a legal and valid defence to a suit at common lawupon the same." The federal courts are bound, in this matter of taking bail in criminal cases, by the state laws, by express command of the statutes. Eev. St. §^ ����