money to indemnify the sureties.125 An allegation therein, that there was no willful default is sufficient.126 A judgment upon a bail bond cannot be set aside upon a motion made subsequent to the judgment term unless it was a nullity.187

A party who has forfeited his bail may be subsequently arrested.128

A party who has forfeited his bail cannot move in arrest of judgment until he personally appears and submits himself to the jurisdiction. 129

Sureties cannot defend a proceeding to enforce their recognizance or bail bond upon the ground that the indictment against their principal was bad,130 or that the statute of limitations had run against the prosecution 131 It has been held that the fact there was an appearance or discontinuance after a forfeiture of a bail bond is not a legal defense to an action thereupon.132 It is no defense to such action that the defendant was mislead or misinformed as to the contents and effects of the bond, when there is no proof of fraud nor incapacity to read.133 A complaint in an action on a bail bond was held to be fatally defective when it did not allege that criminal proceedings had been commenced against the principal, or that there had been an examination before the proper officer, at which reasonable cause for relief in his guilt appeared, or that he had been by any one held to bail or required to give any bail.1 134

It has been said that a bail bond, as regards its legal status, differs in no respect from a bond given by an individual surety.135

The surety is liable only within the absolute terms of his

undertaking which cannot be enlarged.186 The obligation of a surety upon a bail bond binds his estate after his death.137 No judgment can be entered against the wife of the principal when she did not execute the bond and is not his executrix or administratrix.138 Before there can be a recovery it must be shown that the offender was bailed by an officer qualified to admit to bail.139 Where the record does not show who admitted the accused to bail, the Government can supply the omission by parol evidence.140

The question whether a proceeding to enforce a criminal bail bond must be taken in accordance with the practice of the State, or may proceed according to the common law by a writ of scire facias, is doubtful.141 It is too late to raise in the court of review, for the first time, the objection that the proceedings were not instituted by an original action.142 A judgment nisi, without notice to the sureties, cannot be issued upon a forfeited recognizance of bail.143 Such a judgment does not merge the obligation of the surety and he may be sued upon the recognizance that he gave.144

§ 493a. Presentments. A criminal prosecution must be instituted by a presentment, an indictment 1 or an information.2 A presentment is the notice of an offense taken by a grand jury from its own knowledge or observation without the testimony of witnesses and without a bill of indictment being laid before it by the District Attorney. It is generally regarded in the light of instructions upon which an indictment should be found.

144 Leary v. U. S., C. C. A., 170 Fed. 941.

§ 493a. 1 See infra, §§ 495-506. 2 Weeks v. U. S., C. C. A., 216 Fed. 292, 293.

3 McKinney v. U. S., C. C. A., 199 Fed. 25, 39; Commonwealth v. Green, 126 Pa. St. 531, 17 Atl. 878, 12 Am. State Rep. 894; Blackstone's Commentaries IV, 301; 20 Cyc. 1335.

4 Charge to Grand Jury, 2 Sawyer 667, Fed. Cas. 18,225; Matter of Gardiner, 31 Misc. N. Y. 364.

In the Federal courts the grand juries have the power to make presentment of offenses within their own knowledge or upon the personal knowledge of one of their members communicated to them under no sanction but his official oath. It has been said that "this form of accusation has fallen into disuse since the practice has prevailed-and the practice now obtains generally for the prosecuting officer to attend the grand jury and advise them in their investigations." 6

§ 494. Informations. Informations may be civil or criminal in their nature. Informations which are civil in their nature have been previously considered.1

A criminal information is a written accusation of crime, preferred by a prosecuting officer, without a previous indictment or presentment by a grand jury. At common law there were two kinds of criminal informations. The first, which was for offenses immediately against the King was filed by the Attorney General ex officio and without leave of the court. The second was for offenses against private individuals and was exhibited by masters of the crown on the part of private prosecutors without leave of the court. By a statute passed in the reign of William and Mary, as construed by the courts, an information exhibited by a master of the crown could not be filed without leave of court nor unless supported by the affidavit of the person at whose suit it was brought.5

The Revised Statutes provide that "all crimes and offenses committed against the provisions of chapter seven, title

5 U. S. v. Kilpatrick, 16 Fed. 765, 773; Com. v. Woodward, 157 Mass. 516, 32 N. E. 939, 34 Am. St. Rep. 302 (followed in Com. v. Hayden, 163 Mass. 453, 40 N. E. 846, 47 Am. St. Rep. 468, 28 L. R. A. 318); Com. v. Green, 126 Pa. St. 531, 17 Atl. 878, 12 Am. St. Rep. 894; McCullough v. Com., 67 Pa. St. 30; Grand Jury v. Public Press, 4 Brewst. (Pa.) 313; Lloyd's Case, 3 Pa. L. Rep. 188; Charge to Grand Jury, 3 Pittsb. (Pa.) 174; Com. v. Porter, 10 Phila. (Pa.) 217; Com. v. Jadwin, 2 L. T. N. S. (Pa.) 13;

Com. v. Towles, 5 Leigh (Va.) 743;
U. S. v. Kilpatrick, 16 Fed. 765.
See Blaney v. State, 74 Md. 153,
21 Atl. 547.

6 Charge to Grand Jury, 2 Sawy.
667, Fed. Cas. No. 18,225.
§ 494. 1 Supra, § 131.

2 Blackstone, IV, 308.

3 Bacon's Abridgement, III, 635. 4 IV and V William and Mary, c. 18.

5 Comyn's IV, 558, note d; Weeks v. U. S., C. C. A., 216 Fed. 292, 297.

'Crimes,' which are not infamous, may be prosecuted either by indictment or by information filed by a District Attorney." 6 These informations seem to correspond to those filed in England by the Attorney General.7

After the statute of the third year of the reign of Henry VII, until the abolition of the Court of Star Chamber under Charles I, informations became restricted in practice to that court, and were cause of great oppression "so as continually to harass the subject and shamefully enrich the crown."8 Their misuse in this court, where there was no trial by jury and the fact that no action by a grand jury was required for their presentment created a prejudice against them in England and in this country as well.9

The Fifth Amendment ordains: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." This forbids the institution of a criminal prosecution by information, in any case where the crime is punishable by imprisonment at hard labor, 10 or by imprisonment in a penitentiary with or without hard labor.11 Offenses which are not capital, nor infamous, may be prosecuted by information.12 Such are cases where the offense is not punishable by imprisonment in a penitentiary, or by imprisonment elsewhere, with hard labor.13 A prosecu

6 U. S. R. S., § 1022.

7 Bishop's Criminal Procedure, § 144; Clark on Criminal Procedure, pp. 128, 129; Weeks v. U. S., C. C. A., 216 Fed. 292, 297. But see Blackstone's Commentaries IV, 309, and cases to which reference is made in Weeks v. U. S., C. C. A., 216 Fed. 292, 296.

8 Blackstone's Commentaries IV, 310.

9 Wilson's Lectures before the University of Pennsylvania; Wilson's Works (Andrew's Ed.) 450; Weeks v. U. S., C. C. A., 216 Fed. 292, 295.

10 Ex parte Wilson, 114 U. S. 417, 29 L. ed. 89.

11 Mackin v. U. S., 117 U. S. 348, 29 L. ed. 909.

12 U. S. v. Maxwell, 3 Dillon, 275, Fed. Cas. No. 15,750; U, S. v. Shepard, 1 Abb. U. S. 431, Fed. Cas. No. 16,273; U. S. v. Block, 4 Sawyer, 211, Fed. Cas. No. 14,609; U. S. v. Baugh, 1 Fed. 784. But see U. S. v. Joe, 4 Chicago Legal News, 105, Fed. Cas. No. 15,478.

13 U. S. v. Baumert, 179 Fed. 735.

tion for a violation of the Prohibition law,14 or of the Pure Food and Drugs Act,15 may be by information.16

The better opinion seems to be that leave of the Federal court is not required before the filing of an information.17 It has been held, however, that an information cannot be filed without leave of the court; 18 and the court, before granting leave, may require the prosecutor to bring the accused before the court to • show cause, if cause there be, against the filing of the information.1 19 The body of an information must be drawn with as much precision as if it were an indictment.20 Its allegations as to the defense should be so certain and specific as fairly to inform the defendant of the crime charged and to make the judgment a complete defense to a second prosecution for the same cause.21 An information was held to be defective when it set forth the effect of a material document without reciting any of the contents thereof.22 In an information charging an interstate shipment in violation of the Pure Food and Drugs Act,23 an averment that the false statements were applied by the defendant to the article in question knowingly and in wanton disregard of their falsity was held to be sufficient as regards the fraud.24

The body of an information must be drawn with as much precision as if it were an indictment.25 The facts may be alleged upon information and belief, but if stated to be made upon the oath of persons whose affidavits are annexed the allegations are insufficient unless the affidavits are sufficient to support them.26

14 Act of Oct. 28, 1919, ch. 41, St. at L. 315.

15 Act of June 30, 1906, ch. 3915, 34 St. at L. 768, Comp. St., § 8718; U. S. v. Quaritius, 267 Fed. 227. 16 Weeks v. U. S., C. C. A., 216 Fed. 292, affirming U. S. v. Weeks, 225 Fed. 1017.

17 Weeks v. U. S., C. C. A., 216 Fed. 292, 297; Abbott Bros. Co. v. U. S., C. C. A., 242 Fed. 751.

18 U. S. v. Smith, 40 Fed. 755. See U. S. v. Maxwell, 3 Dillon, 275, Fed. Cas. No. 15,750.

19 U. S. v. Smith, 40 Fed. 755; infra, §§ 501-505.

22 U. S. v. Watson, 17 Fed. 145. 23 Act of June 30, 1906, § 8, as amended Aug. 23, 1912 and March 3, 1913, 34 St. at L. 771, 37 St. at L. 416, 37 St. at L. 732, Comp. St., § 8724.

24 Dr. J. H. McLean Medicine Co. v. U. S., C. C. A., 253 Fed. 694.

25 Kelly v. U. S., C. C. A., 250 Fed. 947. See supra, §§ 136, 137.

26 U. S. v. Schallinger Produce Co., 230 Fed. 290.