Page:Federal Reporter, 1st Series, Volume 2.djvu/158

 CKITED BTATEB V. BVANS. 151 �1014, 1015 and 716; U. S. v. Rundlett,2 Curt. 4144,; U. S. V. Horton, 2 Dill. 94, 97. This Tennessee act of the legisla- ture bas been construed to be a new dispensation, designed to abolish tbose "dry technicalities," -which were said to bave operated as "a judicial pardon of offenders," and to bave put statutory bonds and recognizances upon an equal footing witb common-law bonds. State v. Quinby, 5 Sneed, 418. �I tbink the effect of it is to make tbis voluntary obligation, however taken, filed in court, to secure the release of one of the obligors, binding, to ail intents and purposes, as if taken by a proper officer. I do not wish to be understood as bold- ing that one arrested, and under duress to find bail or stand committed by an officer having no autbority to bold to bail, can be lawfully bound to bail upon the judicial determination of an unauthorized officer; but only that, by the operation of tbis statute, on the agreed facts in this case, this is a volun- tary bond, filed of record and accepted by the court having power to take it, and which binds these defendants as if it had been, in ail respects, a proper statutory bond or recog- nizance. �By the influeace of the same principle, without any statute, it was held, in McLean v. State, 8 Heisk. 22, 235, that the approval of a tax coUector's bond by a tribunal which had no legal existence, and whose acts were void, did not release the sureties. It was a voluntary obligation, accepted by the state and acted on by ail parties, and they would not be heard to say it was taken by an im proper officer. �Here the court had power to take a bail-bond and release the defendant; and, while so lawfully in custody before a proper tribunal, be and his sureties executed and filed this bond. It was accepted by the court, or otherwise he could not bave been discharged, and after such acceptance and dis- charge they will not be heard to say that it was not properly acknowledged and approved. Tbis statute was enacted for the very purpose of obviating such objections wben made in this class of cases. �But, on the other ground, I am of opinion tbis defence must fail. It assumes that the clerk acted as a committing ����