There is no error in the judgment in this case. The allowing of bail and the determination of the amount in which the parties are to be bound, are judicial acts which the Executive is prohibited from doing by the second Article of the Constitution of the State. The power to bail is not incidental to the power to grant a reprieve. See State v. Jones, 3 An., page 10.
The argument that the Court is wholly divested of jurisdiction after a final judgment, is inapplicable to a case of bail, so long as the opinion of the majority of the Court in the case of The State v. Longworth prevails. The party entitled to be bailed may be relieved by habeas corpus. See 7th An., page 247.
It is said that the defendant, Fay, signed the bond with his eyes open, and the rule “volenti non fit injuria," has been earnestly pressed upon us. This was a favorite maxim of the late Judge Martin, but he took care to limit its application to civil cases. In the case of Slocum el al. v. Robert, which was that of a bail bond, he remarked: “ It has been urged that we have often said, that in whatever manner a man binds himself he shall remain bound. This may be true in mere conventional obligations, but not in judicial bonds, taken by the Sheriff from persons in his custody; in such a case the Sheriff has no power to take any other bond but that which he is authorized by law to take.” 16th La., 174.
Wo take this to be sound doctrine, at least in criminal cases, and as no law authorized the Sheriff to take the bond sued upon, no recovery can be had upon it.
The judgment is affirmed, with costs.