delivered the opinion of the court:

By the act of 1769, (Pub. Laws, 273.) the Judges are required to “appoint fit and proper commissioners in each district, who shall have power to take recognisimces of special bail, &c.” and the prison bounds act of 1789, indirectly referring to the persons so to be appointed, give them in express terms, the power of carrying it into effect, under the appellation of “ commissioners of special bail

By the act of 1799, (2 Faust, 314,) the clerks of the courts and justices of the quorum are authorized “ to take recognizances of special bail, &c.”

It is obvious that the appellation of “commissioners of special bail,” as used in the prison bounds act, was given in respect to the powers conferred on the persons to be appointed by the Judges, under the act of 1769. And if it-be applied, (and I see no reason why it may not,) to the persons now exercising that power, the authority of the clerks and the justices of quorum to carry the act into effect, is apparent. The whole difficulty in the case appears' to me to have originated in confounding terms. The clerk, for instance, is not the less a commissioner of special bail because he is also clerk, for when called on to act in that character, the clerk is’lost in the commissioner.

Admitting, however, that doubts may exist with regard, to the correctness of this conclusion, we have in the usage under the act of’99, conclusive evidence oftheinterpretation it then received. It is a well known fact, that this power has been universally exercised by the clerks and justices of the quorum, and no appointment of commissioners of special bail has ever been made since that period under the authority of the act of 1769 ; and although a usage of this standing would not justify a procedure in direct opposition to the obvious meaning of a positive enactment; yet when we recollect that the evil to be remedied, and the remedy provided, are better understood at the time, we have in its immediate application the best guide to its correct interpretation.

The motion is therefore granted, and it is accordingly ordered that the writ of mandamus do issue.