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F. Gaynor to appear before the court on the 6th day of March, 1902. to answer to the charge then and there pending against him on indictments Nos. 322 and 371, of which said order the counsel of record of the said John F. Gaynor had due notice and the said John F. Gaynor had due notice.

At a District Court held in said Eastern Division of the Southern District of Georgia, begun on Tuesday, February 11, 1902, that being the second Tuesday of February of that year, an order was entered reciting that at the November term, 1899, of the said District Court, a true bill of indictment was found charging said Gaynor with having, within the Eastern Division of the Southern District of Georgia, on the 1st day of January, 1897, conspired to defraud the United States, and with having defrauded the government pursuant to such conspiracy, and in said order said indictment is referred to as having been numbered 322 upon the criminal dockets of said court. The said order also recites the recognizance so entered into by Gaynor and Kirk. Said order further recites that at the said February term, 1902, a true bill of indictment charging said John F. Gaynor and others with unlawfully, knowingly, and feloniously conspiring, etc., to defraud the United States, and with defrauding the United States accordingly, was found, and refers to the said indictment now on file in the Eastern Division of the Southern District of Georgia, and numbered 371 upon the criminal dockets of said court. The said order then recites that at the said February term of the said District Court for the Eastern Division of the Southern District of Georgia, on the 28th day of February, 1902, an order was made in the matter of both said indictments, docket number 322 and docket number 371, stating:

"The defendants, Benjamin D. Greene, John F. Gaynor, William T. Gaynor and Edward H. Gaynor, charged as aforesaid, under bail for appearance before this Court at this Term of the Court in that behalf, are ordered by the Court personally to appear before this Court in the United States Court Room in the City of Savannah in the above stated matter, on Thursday, March 6th, 1902, at 10 o'clock A. M., then and there to stand to, abide and perform the orders of the Court in the premises."

This order was indorsed:

"District Court of U. S., Eastern Division, Southern District of Georgia. No. 371. United States vs. Benjamin D. Greene, et al. Indictment No. 371. Order to Appear. Filed February 28, 1902. S. F. B. Gillespie, Deputy Clerk." March 6, 1902, an order was made, which in the heading refers to both docket numbers, and which recites the order of February 28th directing the defendants to appear on the 6th day of March, and also recites that March 6, 1902, in the said courtroom, the said Benjamin D. Greene and John F. Gaynor were duly called, but failed to appear or answer to their names when called, and also recites that their counsel then stated that they were unable to give any reason for the nonappearance of said defendants, and also recites that, the court having awaited their appearance until the hour for adjournment of court this day, and they being still in default, but their counsel asking until tomorrow before proceedings be taken to forfeit their recogni

zances:

"It is therefore ordered that said defendants, Benjamin D. Greene and John F. Gaynor, be given until 10 o'clock A. M. March 7th, 1902, to appear and abide the order of the Court, and that they do appear at that time at the said Court Room to abide the order of the Court in the premises."

This order was indorsed as a proceeding on indictment No. 371. An order of said court was made on the 7th day of March, 1902, reciting the arrest of Gaynor and his commitment by Shields, United States commissioner, and the order for his removal, and the giving of said recognizance hereinbefore mentioned and its approval, and also reciting the condition of said recognizance, and then continues:

"Now on this 7th day of March, 1902, at the February term, 1902, of the said District Court of the United States for the Eastern Division of the Southern District of Georgia, the said John F. Gaynor, principal, being solemnly called to come into Court to answer said charge, and having been duly notified to appear before the Court on this day to stand to and abide the orders of the Court in the premises; and the said William B. Kirk, his bail, having been warned to present the body of his said principal whom he engaged to be present this day to answer said charge, and said parties respectively having wholly made default: It is, therefore, considered and ordered by the Court that the said John F. Gaynor and William B. Kirk forfeit their said recognizance, and that the United States of America recover against the said John F. Gaynor and William B. Kirk, jointly and severally, the sum of forty thousand dollars ($40,000.00) the amount of their said recognizance so forfeited as aforesaid, unless at the next term of this Court they show cause why this order should not be made final. It is further considered and ordered by the Court that a scire facias issue against the said John F. Gaynor and William B. Kirk, and that the same be directed "To the Marshal of the Southern District of Georgia, and to the Marshals of the United States' that the same may be served upon the said John F. Gaynor and William B. Kirk in whatever District they or either of them may be found. In Open Court this the 7th day of March A. D. 1902. Emory Speer, U. S. Judge."

Afterwards, at the said term of the court for the Eastern Division of the Southern District of Georgia, and on the 17th day of March, 1902, an order was entered referring in the heading and title to the indictments Nos. 322 and 371, and which states in substance that Gaynor having been required to appear on the 6th day of March, of which due notice was given, and that they having failed to appear on the 6th day of March, 1902, were thereupon, at the request of their counsel, directed to appear March 7, 1902, and that on the 7th day of March, 1902, said defendants were called and failed to answer, and recites that James D Leary. the bail of the defendant Benjamin D. Greene, having been called upon to produce him and having failed so to do, and that William B. Kirk, the bail of the said Gaynor, having been called upon to produce him in accordance with his recognizance, and having failed so to produce him, the court entered orders forfeiting the said two recognizances. And said order further recites:

"And the said William T. Gaynor and Edward H. Gaynor having duly appeared before the Court and having pleaded to said indictments numbered 322 and 371, respectively, and this day being the time set for the jury trial on indictment No. 322 demanded by the pleas of the said Benjamin D. Greene, John F. Gaynor, William T. Gaynor and Edward H. Gaynor, the said Benjamin D. Greene and John F. Gaynor were this day again called to come into Court to stand to and abide by the orders of the Court in the premises, and again failing to answer to their names, are adjudged still in default and the said James D. Leary, the bail of the said John F. Gaynor, were again this

day called upon to produce their respective principals in accordance with their recognizances and failed to produce them. It is thereupon ordered, adjudged and decreed, that the order of this Court made on the seventh (7th) day of March, 1902, adjudging the recognizances of the said Benjamin D. Greene and John F. Gaynor forfeited, be and the same is confirmed; and it is further ordered, adjudged and decreed that the scire facias, ordered in the said order of March 7th, 1902, to be issued, shall be issued by the Clerk of this Court and made returnable to the May Term, 1902, of this Court."

This order, which was made March 17, 1902, further recited that, as the ends of public justice would not be subserved by proceeding with the trial of the defendants William F. Gaynor and Edward H. Gaynor, the cases against them on said indictments numbered 322 and 371 be continued until the next term of this court.

Thereafter, and on the 17th day of March, 1902, an original writ of scire facias was issued out of the said District Court of the United States for the Eastern Division of the Southern District of Georgia, which recited the proceedings before mentioned and the recognizance, and commanded as follows:

"You are hereby commanded to make known to said John F. Gaynor and William B. Kirk that they and each of them be and appear before the Judge of the District Court of the United States in and for said Eastern Division of the Southern District of Georgia at a Court to be holden in the City of Savannah on the second Tuesday of May, 1902, that being the May Term, 1902, of said Court, then and there if they know or have anything to say for themselves why the said sums of money should not be levied for the said United States of America, to wit, the sum of $40,000 of the goods and chattels, lands and tenements of the said John F. Gaynor, and the sum of $40,000 of the goods and chattels, lands and tenements of the said William B. Kirk, to be levied according to the said recognizance if it to them shall seem expedient, and have you then and there this writ. Witness" etc.

"[Signed]

-And duly sealed with the seal of the court.

H. H. King, Clerk,"

Upon this writ of scire facias appears the return of the marshal of said Eastern Division of the Southern District of Georgia, dated April 2, 1902, wherein he says:

"I hereby certify that after diligent search I am unable to find the within named defendants John F. Gaynor and William B. Kirk within my District for service of the within writ upon them."

The defendant was not then within the state of Georgia or said district, and the surety, the complainant in this action, William B. Kirk, was not then within said district or a resident thereof, nor within said state of Georgia nor a resident thereof, nor had he ever been within said district, nor did he have any property within said district.

On the 5th day of April, 1902, the said writ of scire facias was personally served upon William B. Kirk at Syracuse, in Onondaga county, state of New York, by C. D. MacDougall, United States marshal for the Northern District of New York, in which district said. county is situated. The writ was served on Gaynor by leaving same with one Sarah Maloney, at Gaynor's residence in Fayetteville, in said Onondaga county, on the 7th day of April, 1902, Gaynor being absent from said district. The original writ of scire facias was dated and sealed March 17, 1902.

Afterwards, and on the 17th day of July, 1902, an alias writ of scire facias was issued out of said District Court of the United States for the Eastern Division of the Southern District of Georgia, which recited the proceedings aforesaid, and commanded that said matters and things be made known to the said Gaynor and Kirk, and that they and each of them be and appear before the judge of the District Court of the United States in and for said Eastern Division of the Southern District of Georgia at the court to be holden in the city of Savannah on the second Tuesday of August, 1902 (that being the August term, 1902), of said court, then and there if they know or have anything to say for themselves why the said sums of money should not be levied for the United States of America, to wit, the sum of $40,000 of the goods, etc., of said Gaynor, and the sum of $40,000 of the goods, etc., of said Kirk, to be levied according to the said recognizance, if it to them shall seem expedient, and "have you then and there this writ," etc. This was duly witnessed, signed, and sealed. The return of the marshal for said Eastern Division of the Southern District of Georgia states that after due and diligent search he was unable to find the said defendants Gaynor and Kirk, or either of them, within his district, for service of the said writ upon them. It does not appear that this alias writ was ever served upon Gaynor or Kirk.

Thereafter, and at the November term, 1902, of the said District Court of the United States for the Eastern Division of the Southern District of Georgia, and on the 12th day of January, 1903, the following was duly entered, with proper headings, viz.: In substance, that no cause having been shown by the defendants Gaynor or Kirk, surety, why the order of the court made March 7, 1902, and confirmed March 17, 1902, at the February term of the court, forfeiting the recognizance given by the said Gaynor as principal, and the said Kirk as surety, should not be made final, and no appearance, demurrers, pleas, or answers having been filed to the original writ of scire facias or to the alias writ of scire facias issued out of this court on said recognizance

"It is considered, adjudged and ordered by the Court that the said orders and judgment of the Court forfeiting said recognizance are hereby made. final, and that execution may issue thereon in favor of the United States of America, to be levied for the said United States of America, to wit; the sum of forty thousand dollars ($40,000) of the goods and chattels, lands and tenements of the said John F. Gaynor, and the sum of forty thousand dollars ($40,000.00) of the goods and chattels, lands and tenements of the said William B. Kirk, to be levied according to the said recognizance and judgment of forfeiture entered at the February Term 1902 of this Court as aforesaid; and that execution shall be directed to the Marshal of the United States for the Southern District of Georgia, the Marshal of the United States for the Northern District of New York, and to the Marshals of the United States. In Open Court, this 12th day of January 1903. Emory Speer, U. S. Judge. Alexander Akerman, Assistant U. S. Attorney."

Thereupon execution issued to the marshal of the Northern District of New York, who levied upon the real property of the surety, William B. Kirk, situate in the city of Syracuse, Onondaga county, state of New York.

This action in the Circuit Court of the Northern District of New York was then brought against the above-named defendants to perpetually restrain and enjoin proceedings on said execution, and to restrain and enjoin the collection of said alleged judgment.

The bill of complaint alleges the giving of said recognizance, and that same was executed in the Southern District of New York and there delivered, having been executed before the delivery to United. States Commissioner Shields of said Southern District of the state of New York. The bill of complaint also alleges that both Gaynor and Kirk then were, and at all times since have been, residents of the state of New York, and that they nor neither of them have been within or submitted themselves to the jurisdiction of the Eastern Division of the Southern District of the state of Georgia.

The bill of complaint further alleges that in fact the said John F. Gaynor did on the 2d day of February, 1902, appear before the term of the District Court of the United States for the Eastern Division of the Southern District of Georgia, and that then and there the court took custody of the said John F. Gaynor, and ordered and directed that he should not depart from the limits of Chatham county, Ga., that being the county in which said court was being held; and the complaint alleges that the surety was thereby relieved from further obligation under the recognizance mentioned. The bill of complaint also alleges that the said Gaynor appeared regularly in said court of the Southern District of Georgia until an order was made by the court fixing the time of his trial on the indictment then pend. ing for March 17, 1902, at which time he was directed to appear, and that before the time when he was directed to appear the order was made forfeiting and estreating the recognizance, and the complainant alleges that he was thereby released and discharged from the obligations of said recognizance.

The bill of complaint also alleges that the complainant Kirk neve. resided or was in the state of Georgia, either at the time said recog nizance was executed or at any subsequent time, and that he did not appear or submit himself to the jurisdiction of said District Court of the Eastern Division of the Southern District of the state of Georgia, and that he was not served with said writ of scire facias, excepting at Syracuse, in the Northern District of New York, as hereinbefore stated.

The complainant alleges and contends that the record is such. that it does not appear that the recognizance in question was forfeited or estreated; that it is so confounded and confused with another indictment that the record shows on its face that the proceedings were and are void.

The main contention is, however, that as the defendant Gaynor was a resident of and within the state of New York, and his surety Kirk was a resident of and within the state of New York, and the recognizance was executed within the state of New York, and in the Southern District thereof, before a United States commissioner of said district, even if the defendant failed to appear for trial or to answer what might be adjudged against him in the Eastern Division of the Southern District of Georgia, that the District Court of

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