delivered the opinion of the court.

It appearing that during the pendency of this writ the plaintiff in error has escaped, and is not now within the control of the court below, either actually, by being in custody, or constructively, by being out on bail, it is ordered that the submission of the cause be set aside and that unless the -plaintiff in error is brought or comes within the jurisdiction and under the control of the court below on or before the last day of, this term the cause be thereafter left off the docket until directions to the contrary. Smith v. United States, 94 Ü. S_ 97.