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troverted or avoided. Irregularities may be taken advantage of in the usual way, and a trial had upon the issues presented by the writ and the answer filed, as in an action. U. S. v. Winstead (D. C.) 12 Fed. 50; U. S. v. Van Fossen, 1 Dill. 406, Fed. Cas. No. 16,607; U. S. v. McGlashen (C. C.) 66 Fed. 537; People v. Quigg, 59 N. Y. 83. The point that no tribunal has power or authority to extend its process beyond the boundary of its district for the purpose of bringing either a person or property within the scope of its jurisdiction is technically correct, and needs no citation of authorities. It may be doubted, however, whether this elementary principle of law has been violated by the procedure adopted in this sci. fa. proceeding. The writ which issued upon the forfeited recognizance is unquestionably a judicial writ, and founded on the record of the court. It must be issued out of the court wherein the recognizance was estreated. The federal statutes do not expressly indicate the practice by which the remedy may be enforced, and therefore resort must be had to the course of the common law to discover the method of procedure. U. S. v. Insley, 54 Fed. 221, 4 C. C. A. 296; Hunt v. U. S., 166 U. S. 424, 17 Sup. Ct. 609, 41 L. Ed. 1063. The statute declares the continuance of the remedy. It does not prescribe the form of process, nor limit the bounds of territorial jurisdiction to which it may be issued. The sci. fa. is a common-law writ, and not a statutory remedy to obtain a personal judgment, and based upon the particular proceeding to which it is applicable. At common law a recognizance possesses some of the qualities of a judgment. In England, when a recognizance was forfeited, it was the common practice to estreat the same, and remit it to the Court of Exchequer for collection. A writ of execution would follow against the person and property of the surety. No writ of scire facias was originally issued in a criminal case where the recognizance was properly forfeited, namely, where it appeared that the condition for the appearance of the accused was violated. If the question of forfeiture were in doubt, the practice required the issuance of the writ of scire facias. 2 Tidd, Pr. 1090; State v. Randolph, 22 Mo. 482. The later English cases seem to have adopted the practice of issuing scire facias before taking final action upon the recognizance. It has been held that the theory on which a proceeding of this character is founded rests primarily upon the fact, as has been observed, that the records of the court disclose that the principal and surety, by reason of their voluntary act, are already before the court. Although such writ is in the nature of an original process, it is only so regarded in the sense of its being the initial step to enforce the collection of the debt which was created by the default of the surety to produce his principal when legally called upon so to do. It is a fiction of the common law that a surety is personally in attendance upon the court whenever the accused, by order of the court, is bound to personally appear. Manifestly, such a presumption finds support in the practice which obliges the clerk to proclaim notice in open court to the surety in the absence of the principal to produce his principal or forfeit his bail. U. S. v. Dunbar, 83 Fed. 151, 27 C. C. A. 488. The trend of the earlier decisions is to the effect that the recognizance is a confession of a debt, and, when filed, it is made a record of the court, which binds the lands of the conusor or surety. No action to enforce

the bond upon a forfeiture was necessary, as execution issued upon the recognizance as a matter of course. Gildersleeve v. People, 10 Barb. 40; State v. Caldwell, 124 Mo. 513, 28 S. W. 4; People v. Quigg, 59 N. Y. 83; People v. Bennett, 136 N. Y. 484, 32 N. E. 1044. In the Gildersleeve Case a statute of the state of New York, which permitted judgment upon a forfeited recognizance to be entered of course without further proceeding, was held to be constitutional. The court reviewed the common-law cases, and held that the statute was merely declaratory of the adoption of that procedure by the Legislature. The later practice, and that which seems to be adopted through the enactment of section 716 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 580], provides for the issuance of the writ of sci. fa. on the judgment of forfeiture of the recognizance. As has been indicated, the defendant is entitled to notice and service upon him of the writ, so as to give him full and complete opportunity for defense. The practice seems to be, according to many authorities, that after scire facias against bail the execution cannot be awarded against a defendant who has not been personally served with process until there have been two returns of nihil to the writ. Graham v. State, 7 Blackf. (Ind.) 313; Foster's Scire Facias; 13 Tidd, Pr. 1090; Elasser v. Haines (N. J. Sup.) 18 Atl. 1095; McRae v. Mattoon, 13 Pick. 53. Such appears to be the holding of the cases arising under the common law. In the lastmentioned case the defendant against whom the writ issued resided in the state of North Carolina when he became bail and at the commencement of the proceedings. Subsequently he removed to the state of Massachusetts. His defense to the writ was that he had no notice of the proceedings against him as bail. The court held that a principal and surety upon a recognizance presumptively submit themselves to the jurisdiction of the court and the practice of the state. It was there further held that the defendant, to avoid liability, must take notice of his default and interpose his defense in the forum where the remedy was rightly instituted. The return of two nihils to the writs of scire facias was deemed equivalent to personal service upon the defendant. In Insley v. United States, 150 U. S. 512, 14 Sup. Ct. 158, 37 L. Ed. 1163, it was held that, where a process was duly served, a forfeited recognizance may be enforced by sci. fa. proceedings. The Supreme Court of the United States affirmed the decision of the Circuit Court, and by implication, at least, approved its language in respect to the assertion that the proceedings upon which the form of action is founded must be duly served. In granting the temporary injunction herein, Judge Ray decided that there must be personal service of the writ in the district where the proceeding was instituted; that the sci. fa. is in the nature of an original action; and, unless the surety has voluntarily submitted himself to the jurisdiction of the court out of which the writ issued, he must be personally served in such district. He further held that, according to Owens v. Henry, 161 U. S. 642, 16 Sup. Ct. 693, 40 L. Ed. 837, and Brown v. Wygant and Leeds, 163 U. S. 618, 16 Sup. Ct. 1159, 41 L. Ed. 284, the proposition was apparently settled that two returns nihil on successive writs are only applicable where the defendant in the sci. fa. is domiciled or found within the jurisdiction of the court where the writ issues. After revewing the cases above mention

ed, which were civil in their nature, and to revive a judgment, he states his conclusions as follows:

"Two returns nihil are not equivalent to service, except where the writ issues lawfully out of the court in the jurisdiction where the defendant resides. Service in this manner, to be good service, assumes that the defendant resides within the jurisdiction of the court issuing the writ, but cannot be found. In such case two returns nihil are equivalent to personal service, but two returns nihil are not service when the defendant does not reside within the jurisdiction of the court issuing the writ. If this be true in a case for the recovery of a sum of money, where judgment was lawfully issued in the first instance on personal service, and the proceeding is to revive a judgment, how much more ought it to be true in a case where the scire facias proceeding is an original suit, or in the nature of an original suit, and the defendant does not reside within the jurisdiction of the court issuing it, and neither resides nor was within the jurisdiction of that court at the time the recognizance was executed, or default thereon taken, or when the writ issued?"

Undoubtedly the writ, in effect, determines the personal rights and obligations of the defendant, and I quite agree that it may, therefore, be doubted whether a constructive service in the nature of two returns nihil upon a nonresident is sufficient service, especially where the recognizance was entered in another state. See Pennoyer v. Neff, 95 U. S. 727, 24 L. Ed. 565. Scire facias against bail, however, it must still be said, is a proceeding sui generis, and general rules of procedure must be cited and followed with caution. The proposition, as will easily be appreciated, is of much importance, and, in view of the authorities, unsettled. In view of the exhaustive and comprehensive opinion of Judge Ray, whose illness has prevented him from sitting at final hearing, I have determined, notwithstanding some doubts arising in my own mind as to the correct practice upon scire facias against bail, to follow that decision. Moreover, an appeal from the decision of Judge Ray was sustained by the Circuit Court of Appeals on the ground that it was discretionary to grant the injunction during the pendency of the action, without disagreeing with the law applicable to this subject as laid down by the Circuit Court. Although such holding cannot strictly be regarded as sustained on appeal, it is thought, nevertheless, out of a proper deference to the opinion of Judge Ray, any doubts which the court at final hearing may have as to the soundness of the views there expressed should be resolved in favor of their correctness. The facts of the case are practically the same as they were assumed to be by Judge Ray. His reasoning, if sound, at preliminary hearing, must still be so considered. The prevailing rule of comity demands an acceptance of such reasoning and construction, unless the Circuit Court of Appeals, to which court an appeal is to be taken, as was stated at the argument, should finally give different settlement to the questions in dispute.

The next important point is whether the recognizance is void because it was declared estreated on March 7, 1902, prior to the date fixed for the trial by the order of February 24th. Judge Ray was of opinion that a serious question of fact was presented by this contention. He doubted the power of the court to make a valid order on March 17th confirming the prior decree forfeiting the recognizance. The evidence shows that after the date of trial was fixed under indictment No. 322 131 F.-22

the grand jury found another indictment against the defendants of the same nature, and based upon facts arising out of the same transactions. Accordingly, the defendants were directed to appear on March 6, 1902, for the purpose of pleading to the new indictment, and to abide the directions of the court on both accusations. As has been stated, the recognizance was estreated on March 7th, to which date the matter was continued because of Gaynor's failure to respond when called upon to appear. On March 17th the recognizance was again estreated, or, rather, the former forfeiture was confirmed. It is now objected by the defendant that there was no valid judgment of forfeiture. This insistance is without merit. It is thought to be immaterial whether the forfeiture was on March 7th or 17th. The recognizance in terms bound the surety to produce his principal at that term of court, and from day to day thereafter as the court might direct. Waiving the point that, even if some degree of merit be found in the objection, it cannot be used to impeach the judgment collaterally, I am clearly of opinion that such objection must fail. Undoubtedly the court had the power to require the appearance of Gaynor on March 7th. It was the duty of his surety to produce him upon that date despite the fact that as to the first indictment a later day of trial had been determined upon. Suppose a change of the date of trial had been afterwards made without the consent of the defendants. Can it reasonably be claimed that the surety was not obliged to produce his principal at such time as might be fixed by the court. Certainly not. Assuming that the recognizance does not bind the surety to have his principal in court on all the charges which might arise from the conspiracy alleged to have been entered into on or about January 1, 1897, and was entered into merely to secure the attendance of the accused at the opening of court, and from day to day thereafter until the particular charge upon which the arrest was effected is disposed of, then such objection is still without force for the reason that the surety failed to appear on the 17th day of March, at which time the sci. fa. proceeding was instituted. Assuming the correctness of the proposition that the court obtained jurisdiction by reason of the recognizance and its forfeiture being a judgment of the court, I can conceive of no sound reason for concluding that the estreatment of the recognizance on March 17th is in fact ineffectual. The confirmation of the forfeiture must be given the effect intended. A surety cannot be permitted to escape personal liability on account of a technical omission to estreat a recognizance on the precise day when the principal was obliged to appear at any time during a particular term, or from term to term. The original estreatment and the order confirming the same were entered at the same term of court. The effect, therefore, of the confirmation or ratification of the prior order was in fact to estreat the recognizance because of Gaynor's fault in appearing on March 17th. As indicated above, the asserted facts on the motion for preliminary injunction as to the date of estreatment of the recognizance were thought by Judge Ray to be in serious conflict, and for that. reason only have I deemed it necessary to state my views thereon. Such views are, nevertheless, controlled by the principles involved in the question of jurisdiction and the judgment in the sci. fa. proceeding. If it is a correct conclusion that the United States District Court for

the Eastern Division of the Southern District of Georgia was without power or authority, because of the circumstances of this case, to enforce the remedy which the government elected to pursue, then, of course, the date of forfeiture of the recognizance is immaterial, and the case must be determined in favor of complainant.

It would serve no useful object to pass on any other point submitted in the briefs, except to add that, assuming the proceedings in the state of Georgia to be invalid for want of jurisdiction, the remedy invoked by the complainant to restrain the collection of the execution was proper, and accordingly this court, in the exercise of its equity power, may afford relief. North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 596, 14 Sup. Ct. 710, 38 L. Ed. 565; Barrow v. Hunton, 99 U. S. 80, 25 L. Ed. 407; Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. Ed. 870. These cases, it is thought, control the proposition that a party cannot enjoy the fruits of a judgment illegally obtained where, as here, no adequate remedy exists at law.

Another point may briefly be disposed of, namely, that the United States cannot be sued by an individual except as permitted by acts of Congress. U. S. v. McLemore, 4 How. 287, 11 L. Ed. 977; Hill et al. v. U. S., 9 How. 387, 13 L. Ed. 185. This was practically conceded at the hearing. My conclusion is that the complaint, as to the government of the United States, must be dismissed, with costs.

The threatened unlawful seizure of the property of the complainant. by the defendant McDougall must be enjoined. U. S. v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171. Judgment is therefore awarded in favor of the complainant against Č. D. McDougall, as United States marshal for the Northern District of New York, as demanded in the bill, with costs.

(Circuit Court, D. Connecticut. July 1, 1904.)

No. 450.


Where the locators of a mining claim mistook the direction of the vein manifested by the outcrop of ore on the surface, and laid out their claim crosswise instead of lengthwise of the vein, the original side lines of the claim became the legal end lines, and the original end lines became the legal side lines, so that the locators were entitled to follow the vein within the surface lines of the claim on its downward course into the earth so far as it departs from a perpendicular as to carry it underground beyond the legal side lines to a point where it shall be cut off by its legal end lines vertically extended perpendicularly in their own direction. 2. CONVERSION OF ORE-TRESPASS-ESTOPPEL-PLEADING.

Where, in an action to recover for the conversion of ore, plaintiff took the ground that defendant was a naked trespasser when he took away the ore underneath the surface lines of plaintiff's claim, plaintiff could not plead that defendant was estopped to claim the right to remove such ore under a contract between the parties for the development by defendant of plaintiff's mine.


Where plaintiff paid money to defendant under a contract by which defendant agreed to develop plaintiff's mine, but the money was in fact

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