United States v. Evans et al. approval of a tax collector'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 all parties, and they would not be heard to say it was taken by an improper 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, he and his sureties executed and filed this bond. It was accepted by the court, or otherwise he could not have been discharged, and after such acceptance and discharge they will not be heard to say that it was not properly acknowledged and approved. This statute was enacted for the very purpose of obviating such objections when made in this class of cases. But, on the other ground, I am of opinion this defense must fail. It assumes that the clerk acted as a committing magistrate in taking this bond. There is nothing in the record to show this to have been the case. There is no recital in the bond or elsewhere that the defendant was brought before the clerk for examination and bail by him as a magistrate authorized to hold to bail. He simply wrote at the foot of the bond "signed, sealed, and acknowledged and approved by me," signing his name as clerk of this court, and the bond is indorsed filed by him in the same manner as all other papers are indorsed when filed by whomsoever presented. The bond itself does not show that it was ordered or taken by any officer whatever, but is in the common form, and ample under the statute. T. & S. Code, 5153. I think the presumption of law is that he acted as clerk, there being nothing to show that he assumed to act as a committing magistrate. The record shows the court was open that day; that defendant was present on trial in court; that there was a mistrial, and the case continued. From all United States v. Evans et al. Now it is true this, and the presence of the bond in the record, it appears by the record that the bond was taken by the clerk under the immediate direction of the court itself. The proof dehors the record shows that he did so act in fact. the act of February 26, 1853, (U. S. Stat. 163,) in terms, gave the clerks power to administer oaths, take acknowledg ments, etc., and that this provision has not been carried into the Revised Statutes. I doubt if that act would authorize a clerk to act as committing magistrate and hold to bail. Recognizances cannot be taken by an officer out of court without a commission or statutory authority. Viner's Abridg., title, "Recog., A. 13." But they could always be taken in courts by virtue of the inherent power to do so. Id. and Bac. Abridg., title, "Bail.” And one of the clerks of the enrollment, or a deputy, is to attend the acknowledging, vacating, etc., of all deeds and recognizances. Vin. Ab., title, "Recog., A. 15." A clerk has no statutory power to administer oaths, yet he or his deputy may do it. All such acts are done by him in his ministerial capacity, presumably in the presence of the court, and by its express order. United States v. Nichols, 4 McLean, 23; United States v. Babcock, Id. 115. I have no difficulty in holding, therefore, that without any statutory authority, the clerk may take the acknowledgment and justify the obligors to a bail bond, when required by the court to do so. Judgment for the plaintiff. Commerford v. Thompson. THOMAS J. COMMERFORD v. VIRGINIA C. THOMPSON. CIRCUIT COURT-DISTRICT OF KENTUCKY-MARCH 30, 1880. IN EQUITY. 1. Section 3894 of the Revised Statutes providing that no letter or circular concerning lotteries, so-called gift concerts, etc., shall be carried in the mails, does not authorize a postmaster to refuse to deliver letters addressed to the secretary of a lottery company: (1.) Because the section does not apply to letters addressed to lottery companies or their agents by persons not connected with them. (2.) Because the section confers no power upon postmasters to seize or detain letters upon a mere suspicion that they contain unmailable matter. 2. But where it appears that letters addressed to the secretary of a lottery company actually belong to the company and relate to its business, an injunction enjoining the postmaster, etc., will be refused upon the ground that a court of equity could not be required to aid in the promotion of schemes which are contrary to public policy. This was a bill brought by the complainant, a citizen of New York, against the defendant, postmaster of the city of Louisville, for the purpose of enjoining her from interfering with and delaying complainant's letters, addressed to him at Louisville. The bill charged upon information and belief, that there were in the post office and have been since the 10th of October letters of the value of $5,500, addressed to "T. J. Commerford, Secretary, Louisville, Ky., Lock Box No. 121," with the required postage prepaid upon each letter, and that defendant had taken possession of the same, and refused to deliver them as the laws of the United States required, notwithstanding he had demanded possession thereof. The bill further alleged that at the time these letters were mailed, the postal laws of the United States and Commerford v. Thompson. the regulations of the department authorized the mailing and transmission thereof and their delivery by the defendant; that complainant was entitled to the possession of the same, and unless they were delivered he would suffer great wrong and irreparable injury. Prayer for an injunction, and a direction to the defendant to deliver possession of any and all letters addressed to the complainant, as well as all such as may hereafter be addressed to him and received at her office. In her answer, defendant puts her refusal upon certain instructions of the Postmaster General, directing the detention of letters addressed to the complainant. She denied that the laws of the United States or the regulations of the department required the delivery of such letters, and charged, upon information and belief, that all of said letters were letters and communications about and concerning a lottery known as "The Commonwealth Distribution Company;" that all of said letters were intended to be received by said company, although addressed in the name of the complainant, as "secretary," for convenience, and to conceal the fact that they were intended for said company, and that they were letters and communications concerning a lottery; that they were the exclusive property of said company and that complainant was but the secretary, so-called, and employé of said company and had no ownership or property in said letters; and that said letters, and every one of them, were deposited in the mail of the United States in violation of the laws of said government, and that their transmission from the various offices where they were deposited was also in violation of law. The answer further set forth the correspondence with the postmaster general, in which he directed defendant to detain letters addressed to "T. J. Commerford, Secretary," and insisted such order was justified by law, and was within the scope of his powers as Postmaster General. Commerford v. Thompson. Beattie, W. O. Dodd and D. W. Sanders, for the complainant. G. C. Wharton, United States Attorney, A. A. Freeman, Assistant Attorney General, and J. K. Goodloe, for defendant. BROWN, J.-Few intelligent persons will deny that lottery gambling is a vice which merits the reprobation visited upon it by almost all the enlightened legislatures of modern times. The moral sense of the community long since pronounced against it, and the eloquent denunciations of Mr. Justice CATRON in the case of The State v. Smith, 2 Yerg., will touch a responsive chord in the breast of every honest man. The recent report of the Postmaster General to the House of Representatives sets forth with startling emphasis the systematic deceptions and often deliberate swindling practiced by the promoters of these and kindred enterprises, and his efforts to purge his department of all complicity in their doings, challenges the approval of public opinion. At the same time courts are bound to administer the law as they find it, and are often powerless to remedy evils, the existence of which is fully admitted. The toleration or inhibition of lotteries is a matter exclusively within the control of the several States, and Congress can do no more than to deny them the use of the national mails for the propagation of their schemes. But while there is undoubtedly power to prescribe what shall or what shall not be carried by post, (Ex parte Jackson, 96 U. S. 727, 732,) the mails are, prima facie, intended for the service of every person desiring to use them, and a monopoly of this species of commerce is secured to the post office department. Sec. 3982. It is then scarcely necessary to say that the officers of the department are the agents of the public in the performance of this service, and that no postmaster, whether acting under the in |