Downey, 9 Mass., 520; People v. Blankman, 17 Wend., 252; People v. Baughman, 18 Ill., 152; Chumasero v. People, Id., 405; Young v. People, Id., 566; State v. Rye, 9 Yerg., 386; People v. Dennis, 4 Mich., 609; Daniels v. People, 6 Mich., 381; Fowler v. Com., 4 T. B. Mon., 128; State v. Williams, 17 Ark., 371; Hall v. State, 15 Ala., 431; Rich v. Colquitt, 61 Ga., 197; State v. Tennant, 30 La. Ann., 852; 1 Bish. Crim. Proc., sec. 720, note 1.

4. It is claimed that the undertaking offered varies from that described in the complaint; that the one described in the complaint has no file-mark upon it, whereas that "introduced in evidence bears evidence of having been filed in the court, March 20, 1886." There is no variance. The file-mark is no part of the undertaking. The complaint alleges the filing. That is sufficient. Neither was it necessary for the complaint to quote the file-marks. But it is urged that, notwithstanding the file-mark thereon, the undertaking had not been filed when the forfeiture took place. The court below in its findings says: “Said undertaking was filed in the office of the clerk of this court on the twentieth day of March, A. D. 1886”—and showed that the forfeiture took place on the twenty-ninth day of March, 1886. The rule is well established that where the question is as to the sufficiency of the evidence to sustain the findings, and there is a substantial conflict of the evi-. dence, the action of the court below in granting or refusing a new trial will be upheld: Du Brutz v. Jessup, 54 Cal., 118; Lawrence's Case, 30 Grat., 845; People v. Clawson, 2 Utah, 502.

The evidence before us is conflicting, and it is such that we do not feel warranted in going behind the findings. The fact that the undertaking bears the file-mark, taken with the fact that the officer is presumed to do his duty, is very strong evidence that the filing was on the day it purports to have been made: State v. Rogers, 36 Mo., 138. But we do not deem that, so far as these appellants are concerned, the filing was necessary: State v. Daris, 43 N. H., 600; Ex parte Neal, 14 Mass., 205; State v. West, 3 Ohio St., 509; Jennings v. State, 13 Kan., 80.

5. It is likewise urged that the undertaking is void because the commissioner had no authority to issue the warrant or to take bail. The position, as stated in the brief of appellants, is that "it is provided that commissioners of circuit courts may take bail, but there is no provision in the laws of the United States in regard to the form of bail, or the manner of taking it. That question, or the practice in regard to that action, is left as at common law. Under the law creating the office of commissioners of the supreme court of Utah Territory, approved June 23, 1874, the commissioners of the supreme court are authorized to exercise the duties of commissioners of the ciruit courts of the United States, and to take acknowledgments of bail. Under this provision it seems that the commissioners would have no right to take bail in a territory of the United States, for the commissioners of the circuit courts could perform no such duties. Their authority and jurisdiction pertained solely to United States courts."

The commissioners of the circuit courts have territorial jurisdiction within the districts where they are appointed. Therefore the commissioners of the supreme court would correspondingly have territorial jurisdiction in the district where they are appointed. The supreme court has no authority outside of Utah Territory, but it has authority throughout the whole of that Territory. It could therefore appoint such commissioners anywhere within the territory. The powers and duties of the commissioners in the territory are similar to that of commissioners of the circuit courts in the states. The commissioners of the circuit courts, "agreeably to the usual mode of process against offenders in such state," may cause offenders to be "arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense." The like authority is conferred upon commissioners in the territory. The commissioners in the states have authority to take bail. Hence the commissioners in the territory have such authority. But the statute empowering the court to appoint commissioners expressly gave them authority "to take acknowledgments of bail." It is intended by the statute authoriz

ing the appointment of commissioners that the local laws shall be followed, whether that be a United States statute, or in its absence, a territorial statute. The common law does not govern if a statute supplies the necessary regulation or procedure. Thus the authority of the United States commissioners is put beyond question by the language of the statute itself. Commissioners in the states are the ordinary committing magistrates when the offenses are against the laws of the United States: U. S. v. Hand, 6 McLean, 274; U. S. v. Rundlett, 2 Curt., 41; U. S. v. Case, 8 Blatchf., 250; U. S. v. Horton's Sureties, 2 Dill., 94; 1 Bish. Crim. Proc. (3d Ed.) sec. 226; 1 Abb. U. S. Pr., 362; 2 Abb. U. S. Pr., 174. We see no reason why they are not such in the territory. Of course, so much of the United States statute as refers to the jurisdiction of commissioners in territorial cases has no application to the question before us regarding their authority in United States cases.

It is not, however, at this stage of the case, a material matter whether the commissioners were authorized or not to issue the warrant, and take the bail in the present case. Nor is it material whether the other objections urged against the complaint, the warrant, and the undertaking were valid or not. It is quite clear that the appellants have allowed the time to pass at which they could have made their objections effective, if valid. The responsibility of the sureties attached the moment the party was released, and their liability became fixed by a breach of its conditions the forfeiture of the undertaking: People v. Penniman, 37 Cal., 271; Friedline v. State, 93 Ind., 366; Furgison v. State, 4 G. Greene, 302; People v. Wolf, 16 Cal., 386; McMillan v. Dana, 18 Cal., 347; State v. Ake, 41 Tex., 166; Clark v. McComman, 7 Watts & S., 469; Mishler v. Com., 62 Pa. St., 59; Foulke v. Com., 90 Pa. St., 257; Ingram v. State, 10 Kan., 630; State v. Reese, 4 Sawy., 635; State v. Boies, 41 Me., 344; Henriques v. Dutch, etc., Co., 2 Ld. Raym., 1535; Welland, etc., Co. v. Hathaway, 8 Wend., 481; Stever v. Sornberger, 24 Wend., 275.

Our territorial statute, however, provides that notwith

standing the forfeiture of the undertaking, if, at any time before the final adjournment of the court, the accused or his bail appear and satisfactorily excuse his neglect, the court may direct the forfeiture of the undertaking to be discharged upon such terms as may be just: Laws of Utah 1878, p. 148, sec. 409. The appellants have not, however, concluded to avail themselves of the privileges offered by this statute. We think they have waived all the irregularities of which they could have taken advantage under it. We know of no authority for the court to entertain such excuse after the adjournment of the term, which took place a few days after the forfeiture: State v. Stout, 11 N. J. Law, 124; Gregory v. Levy, 12 Barb., 610; Levy v. Nicholas, 19 Abb. Pr., 282; Pierson v. Com., 3 Grant, Cas., 314.

6. It is claimed by the appellants that unlawful cohabitation is a continuous offense, and that, therefore, the accused could be held for but one offense, and that all bail or undertakings taken for more than one charge for the same offense are void. This might all be true, and yet, if applicable to the case under consideration, this court would not be in a condition to decide which of the various charges is the correct one, or in which the bail should be held, and in which they should be discharged. But we do not think that the decision of the cases depends upon any such quandary. In the case before us, it appears from the findings that, when the undertaking was given, the accused had already, nearly a year previous, been indicted for the crime of unlawful cohabitation with more than one woman, to-wit, with Sarah Jane Cannon, Martha Tolly Cannon, Eliza T. Cannon, and Emily Little, between the first day of April, 1882, and the first day of January, 1885. In the case before us (No. 6599) it appears that the charge was for unlawful cohabitation with two of these women between the twenty-fifth day of March, 1885, and the first day of July, 1885; and, when the undertaking was forfeited, an indictment had been found against the accused for unlawful cohabitation during that period. It is contended that this charge, and that mentioned in the indictment of the twenty-fourth of March, 1885, are the same, and consequently both cannot stand.

Since the case was submitted to us, the supreme court of the United States, in the case of Ex parte Snow, 120 U. S., 274, has decided that unlawful cohabitation is a continuous offense, and cannot be segregated into different offenses. That ruling, as we take it from the opinion of the court, is that, where the cohabition is by the same man, with the same woman, continuously and uninterruptedly, the man can be prosecuted but once only; except that, where the cohabitation is continued after indictment, there can be a subsequent prosecution, notwithstanding the cohabitation may have continued uninterruptedly from a time prior to the first indictment. In accordance with that ruling, the indictment of the twenty-fourth March, 1885, is no bar to the prosecution of the accused for unlawful cohabitation committed at any time subsequent to that date, and consequently the matter of the indictment of the twenty-fourth of March, 1885, is wholly immaterial in this case, as the other charge alleges only cohabitation subsequent to the finding of that indictment. With the matter of that indictment removed from the case, there remains nothing whatever in it to show any other charge than that upon which the undertaking herein sued on was given. As a consequence, the question of the continuous character of the offense does not properly arise in the case, or at least it went out when the indictment of the twenty-fourth March, 1885, went out.

7. The question as to the newly-discovered evidence, raised on the motion for new trial, cannot affect the case. The newly-discovered evidence, in regard to the filing of the undertaking, is wholly cumulative, and there is no reason offered why it could not, by moderate diligence, have been discovered and furnished at the trial. But, if the new trial were allowed, such evidence would not be admissible under objection, being immaterial and irrelevant, and such as the sureties cannot set up as a defense. The sureties waived their right to all of that character of defense by failing to take advantage thereof at the proper time. The forfeiture of the undertaking fixed the liabilities of the sureties, as we have seen by the authorities elsewhere cited.

8. The appellants refer to the scratching or erasing in