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said Eastern Division Southern District of Georgia could not and did not gain jurisdiction of the surety Kirk by personal service of said. writ of scire facias outside the state of Georgia, and outside the district in which issued, and in the Northern District of the state of New York. The complainant contends that, while the District Court of the Eastern Division of the Southern District of Georgia had power to estreat the bond, all proceedings to enforce and collect the same thereafter must be instituted and prosecuted in the district in which the defendant Kirk resided and resides, to wit, in the Northern. District of the state of New York, or in the Southern District of the state of New York, if said proceedings may be instituted in the district where the recognizance was executed. That personal service of said writ on Kirk in the Northern District of New York did not give jurisdiction to the District Court of the Eastern Division of the Southern District of Georgia. The defendants contend that this. action cannot be maintained against the United States, but this contention is of little importance, as the United States has appeared and answered, as has the defendant Clinton D. MacDougall, as marshal of the Northern District of New York. The power and jurisdiction of this court to restrain the marshal, an officer of the government, from enforcing and collecting said execution, if the same and the proceedings on which founded are void, cannot well be questioned. See cases hereafter cited.
The main contention of the government is that when Kirk signed the recognizance, even though the act was done in the Southern District of New York, he entered into an obligation to produce his principal, Gaynor, in the District Court of the Eastern Division of the Southern District of Georgia, which recognizance was to be filed there, and that he thereby submitted himself to the jurisdiction of that court for all purposes, and that personal service of the writ of scire facias upon him at any place within the United States, or by two returns "nihil," was good and sufficient service and notice. This court is of the opinion, and holds, that it sufficiently appears from the record that the recognizance in question was duly forfeited and estreated, and that the District Court for the Eastern Division of the Southern District of the state of Georgia had power and jurisdiction to estreat such recognizance and declare it forfeited. If, however, as is alleged in the bill of complaint, Gaynor did appear as ordered and at the times ordered, and the trial was fixed for a day certain when the defendant was to appear, and the order estreating and forfeiting the recognizance was made prior to that time, it presents a serious question whether that court had power to make a valid order confirming the order estreating and forfeiting the recognizance made at a time when there was no default and when the court had no right to make such an order. If Gaynor was ordered and directed to appear on the 17th, and the surety had notice, then that was the time for him to produce the defendant, and, if he failed to produce the defendant in the indictment on that day, an order could be made forfeiting and estreating the recognizance because of such default, but this nonappearance or nonproduction of the defendant would not authorize the making of an order confirming an order estreating the
bond for the nonappearance or the nonproduction of the defendant on the 7th day of March, at which time the defendant was under no obligation to appear, and on which day the surety was under no obligation to produce him. Such an unwarranted proceeding could not be validated by any subsequent order of confirmation. It must be conceded that there is an inconsistency in the record itself. This contention presents a question of fact which can only be determined satisfactorily on the trial.
As to the other question raised in this case, there is but little doubt as to what the law in fact is. This court finds no case holding that a recognizance given in a certain district of one state, where the defendant and his surety reside and where the defendant is apprehended, for the appearance of the defendant in another district in another state where the indictment is found, may be collected or enforced against the surety by execution issued upon scire facias issued out of the District Court where the defendant was to appear, but which was not personally served on the surety in such district, but was served personally in the district where the surety resides.
It has been contended by the government that the scire facias proceeding in this case is not an original suit or proceeding, but a mere continuation of the criminal proceeding. The original proceeding was a criminal prosecution by the United States of America against John F. Gaynor and other indicted persons, whose names it is unnecessary to mention, except that Benjamin F. Greene was one. The proceeding was to punish Gaynor, the principal, for an alleged commission of a crime. When Gaynor failed to appear, and the court forfeited or estreated the recognizance, this was not a trial or conviction or punishment for a crime, but a step preliminary to independent proceedings authorized by law to collect a sum of money or a debt due to the United States under the terms of the recognizance entered into by Gaynor and Kirk, and this was a civil proceeding in its nature, although one arising under the criminal laws of the United States. Kirk, the surety, had no property in the state of Georgia. He was not a resident of that state, and could not in any case be sued there, in a civil action in the courts of the United States, unless found there and personal service had. If the government would prosecute him by or in an original action or proceeding, it must institute such proceeding in the district where he resided, or at least in the district. where found and served. This could be done in either of two ways: On application to the courts in the Northern District of New York, possibly a writ of scire facias might issue; but in any event a civil action in the Circuit or District Court might be instituted to collect the penalty of the recognizance. This is the contention of the complainant Kirk. Is the contention well founded?
In United States v. Payne, 147 U. S. 687, 690, 13 Sup. Ct. 442, 37 L. Ed. 332, the Supreme Court held, without dissent:
"While a scire facias to revive a judgment is merely a continuation of the original suit (Frierson v. Harris, 94 Am. Dec. 223, notes), a scire facias upon a recognizance, or to annul a patent or for other similar purposes, is as much an original cause as an action of debt upon a recognizance, or a bill in equity to annul a patent. Winder v. Caldwell, 14 How. 434, 443 [14 L. Ed. 487]; United States v. Stone, 106 U. S. 525, 535 [27 L. Ed. 163].”
It is immaterial that it is a case arising under the criminal laws of the United States (Hunt v. United States, 166 U. S. 424, 17 Sup. Ct. 609, 41 L. Ed. 1063); it is an original cause to enforce the liability of the surety upon his contract that at a certain time and place he would produce his principal (the alleged criminal) or pay the amount of the recognizance. This is substantially held by the Supreme Court of the United States in Hunt v. The United States, 166 U. S. 424426, 17 Sup. Ct. 609, 41 L. Ed. 1063, where the court, per Gray, J.,
"It is a suit to enforce the penalty of a recognizance taken to secure the appearance of the principal to answer the charge and to abide any sentence against him."
(The learned justice was speaking of proceedings by scire facias to enforce the penalty of a recognizance in a criminal case.)
In 2 Chitty's Archbold's Practice (Prentice) (Chap. 7, p. 1140) 1140, it is said:
"It [the writ of scire facias] is, however, considered in law as an action [citing authority], and when brought to repeal letters patent may in fact be an original writ returnable in chancery, or a judicial writ returnable in the superior court. The scire facias against bail on their recognizance, against pledges, in replevin to repeal letters patent, or the like, is in fact altogether an original proceeding."
In volume 19, Encyclopedia of Pleading and Practice, page 293, it is said:
"And there yet remains a second class in which scire facias proceedings are in the nature of an original action, and in some cases have been held to be in fact the commencement of an original action."
These proceedings of this character are then described, and at pages 305, 306, it is said:
"(c) On Forfeited Recognizances in Criminal Cases. (1) In General. Proceedings by scire facias for the purpose of enforcing forfeited recognizances in criminal cases are resorted to in the federal courts and in the courts of many of the states.
"(2) Nature of Proceeding. The purpose of a scire facias upon a forfeited recognizance is to give notice to the parties thereto to show cause why judgment should not be rendered against them for the amount of the recognizance. "Original Action. A scire facias on a recognizance is, it seems, generally held to be in the nature of an original action, and some cases hold that a scire facias upon a recognizance of bail in a criminal case is to be regarded as an original writ and as the institution of a new suit."
See, also, I Saund. 71a, note; 2 Tidd, 1125-1150.
In Niles v. Drake, 17 Pick. 516, the court said, "A scire facias against bail is a new action," citing 6 Danes, Abr. 463; Co. Litt. 290b; Litt. § 505. Foster's Scire Facias says it is a new action when founded upon a recognizance. Foster's Scire Facias, § 13.
The better authorities also hold a proceeding by scire facias upon a forfeited recognizance in a criminal case to be a civil action. See cases cited, notes 4 and 5, p. 307, Enc. Pleading & Practice, vol. 19.
Indeed, it is difficult to understand what there is of a criminal nature in a proceeding to collect a sum of money of a surety in a recognizance given for the appearance of the defendant at the time. and place fixed for his trial, default having been made. Does the surety become a criminal if the principal absconds and cannot be pro
duced? Has the surety committed any offense punishable by any criminal statute? The surety cannot be arrested or imprisoned. He is simply bound in contract to pay so much money. The proceeding to collect the amount of the recognizance is not to punish an offense or to impose a penalty for the violation of any law. If the amount be collected and the defendant in the indictment be afterwards apprehended, he may be tried, convicted, and punished. It being an "original cause" and "a suit to enforce the penalty of a recognizance" in a criminal case, how can jurisdiction of the surety in the undertaking be obtained for the purpose of obtaining a personal money judgment and execution? Certainly there must be personal service within the district where the writ issues, or, what is more probable, the proceeding, whether by action or scire facias, must be commenced in the district where the surety resides. This court doubts the right to issue the writ in such a case from any court other than that where the recognizance is a matter of record. 19 Enc. Pleading & Practice, p. 296, and cases cited; 2 Chitty's Archbold's Pr. 1141. But this is not decided. Even if this is true, the fact that scire facias may not issue in the Northern District of New York confers no power to institute proceedings by scire facias in the District Court of the Eastern Division of the Southern District of Georgia against the complainant herein, who resides in the state of New York, and bind the surety Dy personal service of such writ in the state of his residence. Such proceedings are but one of two remedies, and an action on the recognizance may be brought in the district where Mr. Kirk resides. There is a remedy in the courts of the United States. That remedy is by an action.
In volume 19, Enc. of Pleading and Practice, pages 275, 276, it is said:
"A writ of scire facias must be properly served in the manner prescribed by law in order that a judgment may be rendered thereon, unless the want of service or the defects therein be waived. It may be laid down as a general rule that a writ of scire facias is to be served in the same manner as other process. * * There must, as a general rule, be personal service upon the defendant of a scire facias, or summons in the nature of a scire facias, at least where it is a remedy provided by statute unknown at common law, and of a merely personal character."
Congress may by law provide that process in any case be served personally anywhere in the United States, but it has not done so, and in the absence of a statute service must be had in the district where the defendant resides, or, in some cases, where found. Toland v. Sprague, 12 Pet. 300, 327, 328, 9 L. Ed. 1093; Butterworth v. Hill, 114 U. S. 128, 5 Sup. Ct. 796, 29 L. Ed. 119; Bourke v. Amison (C. C.) 32 Fed. 710.
By statute, final process, as execution, in favor of the United States, may be served in any state of the Union, but this has not been extended to original or other process. See Toland v. Sprague, supra.
In Herndon v. Ridgway, 17 How. 424, 425, 15 L. Ed. 100, the court said (citing Toland v. Sprague, 12 Pet. 300, 9 L. Ed. 1093):
"The jurisdiction of the District Court over parties is acquired only by a service of process, or their voluntary appearance. It has no authority to issue process to another state."
In United States v. American Lumber Co., 85 Fed. 827, 29 C. C. A. 431, 56 U. S. App. 655, it was held:
"The process of a Circuit Court of the United States cannot run beyond the court's territorial jurisdiction, and sending writs of subpoena ad respondendum without a district in which only they can be served, and to persons who are without power to serve them, are vain and futile acts."
That a writ of scire facias is a process, and the process by which the proceeding or suit is commenced against the surety (in cases of recognizance in criminal cases), where it is sought to enforce the liability of the surety by such a proceeding, cannot well be questioned. Does the surety in a recognizance in a criminal case, which recognizance is executed in New York state, where he resides and continues to reside, but is to be filed in the District Court of another state, as Georgia, where the indictment was found and is pending for trial, by entering into and executing such recognizance, submit himself to the jurisdiction of such District Court for the purpose of the collection of same, in case of default and forfeiture of the recognizance? Does he consent thereby that he may be proceeded against in Georgia; to go there and make his defenses, if any he has, and, if defeated, have execution against his property in New York? No such condition or agreement is found in the recognizance or is imposed by statute.
Conceding that "when the condition of an undertaking of bail is broken the penalty accrues, and the parties become absolute debtors to the obligee for the amount thereof, and they must be held liable to pay the same, unless they can show some matter legally sufficient to excuse the default" (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); still, thus far we have a debt or a conditional judgment, perhaps, but neither a final judgment nor a judgment absolute. In the scire facias proceeding properly instituted by due service, the defendant may appear and plead and have a trial of all questions or matters of defense, and the proceeding is but a suit to enforce the penalty of the recognizance (Hunt v. U. S., 166 U. S. 424, 17 Sup. Ct. 609, 41 L. Ed. 1063), and differs from any other suit to enforce it only in the process by which commenced. Whether by subpoena or by writ of scire facias it is still a suit commenced by process, and if the surety has not voluntarily submitted himself to the jurisdiction of the court out of which the writ issues he must be served in the district where it issues. If he has already voluntarily submitted himself to the jurisdiction, why is service of the writ necessary at all? Clearly not to give jurisdiction, but to notify the surety of the pendency of the proceeding. If the scire facias proceeding "is a suit to enforce the penalty of a recognizance," it cannot be deemed commenced until the writ issues, and as it is the process by which the suit is instituted it must be served within either the district where the defendant resides or where he is found, or by substituted service in cases where substituted service is provided for. This is not such a case.
Concede that "a court with power to take a bail bond has jurisdiction of a scire facias proceeding to enforce the same" (State v.