1. As to the first objection urged by the defendant, that “ there was no authority or cause of taking set forth in the recognizance or the writ, that gave the commissioner right to take the recognizance,” it is directly averred in the recognizance that John S. Brayton was “ a commissioner specially appointed for that purpose by the justices of the court of common pleas,” and in the writ it is stated that he was “ specially appointed for (hat purpose.” The recognizance further shows the occasion on which the same was taken to have been that the party was under an indictment, upon which a verdict had been returned against him and the case was pending upon his bill of exccp*211tians. We understand that the party was in confinement under an order to recognize with sureties, and sought to be discharged therefrom on his recognizance.
The St. of 1845, c. 166, recognizes such commissioner as one that may be appointed by the court for the purpose of taking the recognizances of persons under indictments. The St. of 1851, c. 92, also provides that persons imprisoned for not finding sufficient sureties to recognize with them, under an order of court to that effect, may be admitted to bail by any standing or special commissioner of this court, or of the court of common pleas, appointed for such purpose. Although these statutes do not state the precise case of a recognizance of a party found guilty on an indictment, and desirous to recognize to prosecute a bill of exceptions, yet we think that power may be properly exercised by a commissioner appointed by the court to act in that behalf during the vacation.
2. The writ sufficiently sets forth that the recognizance was made of record in this court, by alleging that the recognizance “was duly certified and returned to the said supreme judicia. court, as by the record thereof appears.”
Exceptions overruled.