Southern District of Georgia; that an indictment had been found by a grand jury of said district against Gaynor; and, further, that probable cause existed for believing him guilty of the offense charged. It was stated in the recognizance that the accused had been held to answer by the commissioner in the district where the indictment was found. The condition of the recognizance was in the following words:

"Now, therefore, the condition of this recognizance is such that, if the said John F. Gaynor shall personally appear at the term of the District Court of the United States for the Eastern Division of the Southern District of Georgia, to be holden on the second Tuesday in February, 1902, and from day to day and from term to term should the case be continued, and then and there to answer to such matters and things as have or shall be objected against him, and to stand to, abide, and perform the orders of the court, and not depart the said court without leave, then this recognizance to be void; otherwise to remain in full force and virtue."

Other facts appearing may be stated chronologically. On February 11, 1902, Gaynor personally and by counsel appeared before the proper court having jurisdiction of the accused, and filed a plea in abatement to the indictment. A demurrer to the plea having been interposed by the government, the court, on February 17, 1902, sustained the same. Thereupon the defendant demurred to the indictment. Subsequently, on February 24th, the court overruled the demurrer as to counts 1 to 8, inclusive, and sustained it as to counts 9 and 10. The defendant Gaynor then entered a plea of not guilty to the indictment. During the discussion between the court and counsel regarding the time of trial, it was, in effect, stated by the court that in all probability another indictment against the accused persons would be found by the grand jury in attendance at that term of court, and therefore notice should be taken of such impending action. These observations by the court resulted in a general discussion between court and counsel on both sides touching notice to the defendant of any future action by the grand jury, and fixing the time of trial of the indictment to which the defendants had that day entered a plea of not guilty. Finally, March 17, 1902, a date in the same term, was named by the court for the trial upon this indictment, No. 322. On February 28th, at the same term, another indictment was presented to the court by the grand jury against Gaynor and others (No. 371), charging them with conspiracy to defraud the United States. Thereupon the defendants were directed by order duly entered and served on counsel for defendants to personally appear on March 6, 1902, to plead thereto. Such order in terms directed the attorneys for the defendants "to stand to, abide, and perform the orders of the court in the premises." The accused Gaynor did not appear on the date appointed. His counsel, however, were present in court. His surety was admonished to produce his principal, but he failed to do so. Counsel for defendants asserted their belief that Gaynor would appear on the following day, and accordingly moved a continuance, which was granted. On the next day the recognizance in question was estreated on account of Gaynor's default in appearing. It was accordingly decreed by the court that the United States recover judgment against Gaynor and his surety in the sum of $40,000, the amount of the forfeited recognizance, unless cause be shown at the succeeding term why such decree and judgment should not be made final. A writ of scire facias was di

rected to issue to the marshal of the Southern District of Georgia and to the marshals of the United States for service upon Gaynor and Kirk, principal and surety, respectively. On March 17, 1902, the day set for the trial on the first indictment, as above mentioned, on account of Gaynor's absence from court, the surety being first called upon, as required by the rules and practice of the court, to produce his principal, the bond was again estreated, and the prior estreatment proceedings confirmed. The writ of scire facias was made returnable at the May term of court. Personal service thereof upon the surety was not made in the state of Georgia or within the territorial district of the court which directed its issuance, but the complainant was served on April 5, 1902, at the city of Syracuse, state of New York, which has been his continuous residence. An alias writ of scire facias was issued on July 17, 1902. The marshal for the Southern District of Georgia made return of "Not found" to both writs. No plea or answer was interposed to stay the final mandate of said court, and judgment was entered in favor of the United States. In accordance with section 986 [U. S. Comp. St. 1901, p. 708] an execution was issued to the marshals of the United States directing such officers to levy upon the property of the complainant wherever found. No attempt is here made to set forth the facts with as much detail or as comprehensively as they appear in the exhaustive opinion of Judge Ray granting an injunction pendente lite. For a full statement of such facts reference is directed to that decision, which may be found reported as Kirk v. United States (C. C.) 124 Fed. 324.

It will be noted from the practically undisputed facts that two writs of scire facias were issued against the complainant and his bail, and were returned nihil by the marshal of the district to which they were issued. The legal propositions involved are of much importance, as no strictly parallel and reported authority is found in the courts of the United States to guide their determination. It is contended by the complainant, among other things, that, as the surety was not found within the state of Georgia, he never having submitted himself to the jurisdiction of the court, and owning no property in that state, the sci. fa. could have no extraterritorial effect as a basis for a personal judgment; hence the writ of execution was without legal force and effect. This question will first be considered. That the court had jurisdiction. to enforce a forfeited recognizance or bail bond by writ of scire facias or by action must be conceded. Insley v. United States, 150 U. S. 512, 14 Sup. Ct. 158, 37 L. Ed. 1163. See, also, section 716, Revised Statutes of the United States [U. S. Comp. St. 1901, p. 580]. Whether, admitting the power and jurisdiction of the court to enforce the judgnient on scire facias, such proceeding bound the surety, who was neither personally served with process in the state where such steps were instituted nor domiciled therein, and who did not appear or submit himself to the jurisdiction of the court otherwise than by joining in the recognizance, is a point not free from difficulty. Scire facias proceedings in a civil case are in the nature of an original action to the extent of enabling the defendant to plead. U. S. v. Payne, 147 U. S. 692, 13 Sup. Ct. 442, 37 L. Ed. 332; Winder v. Caldwell, 14 How. 442, 14 L. Ed. 487. The writ in every case must apprise the defendants of the facts on which it is based, and the averments therein contained may be con

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